NO. 01-15-00129-CR

IN RE § IN THE COURT OF APPEALS

§

§ 1

ST SUPREME JUDICIAL DISTRICT

§

ESCOBAR, TULIO § AT HOUSTON, 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 351st 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 351st 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 review, 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 351st 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 351st 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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/9/2015 3:27:55 PM CHRISTOPHER A. PRINE Clerk
informed that the 351st intended to move forward with the motion to revoke in the underlying cause 

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

correcting the record and that the 351st currently lacked jurisdiction to rule on the matter. 

The trial court then stated that the appeal was abated, and therefore, the court was within 

its rights to issue a ruling. Counsel again asked that the trial court hold a hearing to complete the 

record and remove the hearing for the motion to revoke from its docket. Although the trial court 

granted counsel’s request for a hearing to correct the record, it refused to remove the hearing on 

the motion to revoke from its docket and again stated its intention to move forward on that matter.

II.

A hearing to correct the record is set for March 19, 2015, and a hearing on the motion to 

revoke is set for March 24, 2015. Relator asserts that the trial court lacks the jurisdiction to hear 

the motion to revoke at this time. Although the appeal has been abated, the stated reasons for 

remanding 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 of 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 court to 

remove the hearing for the motion to revoke set on March 24, 2015 from its docket until after the 

appeal is reinstated and ruled upon. If this 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 revoke will sabotage the normal judicial efficiency 

afforded to criminal defendants generally. Further, counsel will be required to either amend his 

brief with this Court to address any issues that arose during the hearing, or file a new notice of 

appeal challenging the motion to revoke, so as to ensure that all viable claims are raised. If these 
claims are raised under the current appellate cause number, delay will ensue from the necessity of 

filing leave to file an amended brief, as well as the actual drafting of the brief itself (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 potentially three open cause numbers between this Court, and possibly 

the 14th Court of Appeals, which may result in disparate and confusing results, leading to further 

litigation in order to reconcile the cause numbers.

WHEREFORE, Relator prays the court to stay the proceedings in Cause No. 1329944 until 

the appeal of Cause No. 1329944-A (01-15-00154-CR) is complete and either denied or remanded 

back to the trial court for further proceedings in line with the opinion of this Court.

Respectfully submitted,

/s/ Tom Abbate 

TOM ABBATE

2425 WEST LOOP SOUTH STE 200

HOUSTON, TX 77027

OFFICE: (832) 209-2279

FAX: (800) 501-3088

tom@tomabbatelaw.com

SBOT # 24072501

ATTORNEY FOR RELATOR
CERTIFICATE 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