NO. 01 -15 -00129
- CR

IN RE § IN THE COURT OF APPEALS § § 1 ST SUPREME JUDICIAL DISTRICT § ESCOBAR, TULIO § AT H OUSTON , TEXAS

MOTION TO STAY PROCEEDINGS IN THE TRIAL COURT
TO THE HONORABLE JUDGES OF THIS COURT:
Now comes TULIO ESCOBAR , Relator, in the above styled and numbered cause, and moves the court to stay the proceedings in the 351 st District Court, under Cause No. 1329944, styled State v. Tulio Escobar, specifically, the motion to revoke probation set for March 24, 2015, and in support of this motion shows:
I. Relator filed a Petition for a Writ of Mandamus with this court on February 12, 2015 in an attempt to compel the 351 st to sign the Certificate of Appealability in his Notice of Appeal attached to his 11.072 Application for Writ of Habeas Corpus (Trial Court Cause No. 1329944- A) . Shortly thereafter, this Court instructed the District Clerk to forward up the record for rev iew, which was
filed under Cause No. 01-15-00154

- CR on February 18, 2015. After reviewing the record, this Court issued an Order of Abatement on March 5, 2015. In the order, this Court noted that the Clerk ’ s Record lacked the judge ’ s signature on the Certificate of Appealability, as well as findings of fact and conclusions of law, and ordered the 351 st to hold a hearing regarding these issues and file a supplemental clerk ’ s record within 30 days addressing
the results. On March 6, 2015, appellate counsel went to the 351 st in an attempt to schedule the hearing requested under the Order of Abatement. Upon approaching the bench, appellate counsel was ACCEPTED 01-15-00129-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 3/9/2015 3:27:55 PM CHRISTOPHER PRINE

CLERKin formed that the 351 st intended to move forward with the motion to revoke in the underlyin g cause

number (see above). Counsel then attempted to explain th at the abatement was for the purposes of

corre cting the record and that the 351 st currently lacked jurisdiction to rule on the matter.
The trial court then stated that the appeal w as abated, and therefore, the court was within its rights to iss ue a ruling. Counsel again asked that the trial court hold a hearing to complete th e record and remove the hearing f or the mot ion to revoke from its docket. Although th e trial court granted counsel ’ s request for a hearing to correct the rec ord, it refused to remove the hearing on
the motion to revoke fr om its docket and again stated its i ntention to move forward on that matter.
II.
A hearing to correct the record is set f o r March 19, 2015, and a hearing on the motion to revoke is set for March 24, 2015. Relator asserts that t h e trial court lacks the jurisdiction to hear
the motion to revo ke at this time. Although the appeal has been abated, the stated reasons for

re mandin g back to the trial court were solely to correct and complete the record, and because the clerk was commanded to file a supplemental record within 30 days of the date o f the Order of
Abatement , at which point, the appeal would be reinstated. Therefore, Relator is requesting that this Court issue an order directing the trial co urt to remove the hear ing for the motion to revoke set on March 24, 2015 from its docket until a fter the appeal is reinstated and ruled upon

. If t his Court does not issue the requested order, Relator will suffer undue hardship and delay in the resolution of his appeal

. First, moving forward on the motion to r evoke will sabotage the normal judicial efficiency
afforded to criminal defendants generally. Further, counsel will be required to eithe r amend his
brief with t his Court to address any issues that arose during the hearing, or file a new notice of appeal c hallenging the motion to revoke, so as to ensure that all vi able claims a re raised. If theseclaims are raised under the current appe llate cause number, delay will ensue from t he necessity of

filing leave to file an amended brief, as well as the actual drafting of the brief its elf (it should be noted that the abated appellate cause number is designated as a “ fast

- track ” appeal and is intended to be dealt with relatively quickly). If these claims are addressed under a new appellate cause number, then there will be potentia lly three open cause numbers between this Court , and possibly
the 14 th Court of Appeals , which may result in disparate and confusing results, leading to further litiga tion in order to reconcile the cause numbers. WHEREFORE, Relator prays the court t o stay the proceedings in Caus e No. 1329944 until
the appeal of Cause No. 1329944

- A (01

- 15

- 0 0154

- CR) is complete and either denied or remanded
back to the trial court for fur ther proceedings in lin e with the opinion of this Court.

Respectfully submitted,

/s/ Tom Abbate TOM ABB ATE 2425 WEST LOOP SOUTH STE 200 HOUSTON, TX 77027 OFFICE: (832) 209

- 2279 FAX: (800) 501

- 3088 tom@tomabbatelaw.com SBOT # 24072501
ATTORNEY FOR RELATORCERTIFICATE OF SERVICE

This is to certify that on March 9 , 2015 , a true and correct copy of the above and foregoing
document was served on the HON. MARK ELLIS and the District Attorney's Office, HARRIS County, by fax

.

/s/ Tom Abbate TOM ABBATE