Smith, Eric Lenard v. State ( 2004 )

Opinion issued May 27, 2004

In The

Court of Appeals

For The  

First District of Texas

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NO. 01-98-00371-CR

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ERIC LENARD SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

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  On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 694726

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MEMORANDUM OPINION  

                A panel of this court issued an opinion in this case on April 15, 1999. See Smith v. State, 990 S.W.2d 893 (Tex. App.—Houston [1st Dist.] 1999), rev’d, 17 S.W.3d 660 (Tex. Crim. App. 2000). In that opinion, we concluded that Smith had rebutted the presumption that he was effectively represented by counsel during the time for filing a motion for new trial. We thus remanded the case to the trial court for the appellate timetables to begin anew. Id. at 895–96.

               The State filed a petition for discretionary review, which the Texas Court of Criminal Appeals granted. The Court of Criminal Appeals reversed this court’s opinion and held that the facts in the appellate record did not overcome the presumption that Smith had been adequately represented by counsel during the time for filing a motion for new trial. Smith, 17 S.W.3d at 662–63. The Court of Criminal Appeals remanded the case to us to consider Smith’s remaining points of error. Id.

               On June 28, 2001, this court abated the appeal and remanded the cause to the trial court for a hearing to determine whether appellant had counsel, and whether he received effective assistance of counsel during the 30-day period for filing a motion for new trial. Smith v. State, No. 01-98-00371-CR (Tex. App.—Houston [1st Dist.] June 28, 2001, order) (not designated for publication) (ordering abatement based on Jack v. State, 42 S.W.3d 291 (Tex. App.—Houston [1st Dist.] 2001, order)). The trial court held a hearing and determined that Smith did not have counsel during the 30-day time period for filing a motion for new trial.

               On July 18, 2002, after receiving the trial court’s findings, we abated the appeal a second time and remanded the cause to recommence the time period in which to file a motion for new trial. Smith v. State, No. 01-98-00371-CR (Tex. App.—Houston [1st Dist.] July 18, 2002, order) (not designated for publication) (ordering abatement based on Jack v. State, 64 S.W.3d 694 (Tex. App.—Houston [1st Dist.] 2002, order)). The State filed a second petition for discretionary review on July 22. Meanwhile, Smith filed a motion for new trial in the trial court. On September 11, 2002, the trial court granted Smith’s motion for new trial. The Court of Criminal Appeals subsequently dismissed the State’s second appeal as an appeal from an interlocutory order, and remanded the case. Smith v. State, No. 1548-02, slip op. at 5 (Tex. Crim. App. Apr. 7, 2004) (designated for publication).

               On May 12, 2004, Smith moved to dismiss the appeal on the basis that the trial court granted his motion for new trial. The motion is in writing, signed by Smith and counsel. At the time Smith filed his motion, we had not issued a decision on remand. Accordingly, the appeal is dismissed as moot. Tex. R. App. P. 42.2(a).

               The clerk of this court is directed to issue the mandate. Tex. R. App. P. 18.1.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).