Junaid Younus Faroogui v. the State of Texas ( 2022 )

Order entered December 21, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01165-CR
JUNAID YOUNUS FAROOGUI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F17-45745-S
ORDER
Before the Court is appellant’s November 28, 2022 motion to abate the
appeal and remand for a hearing on appellant’s motion for new trial. The State has
not filed a response. We will grant the motion.
The record shows appellant filed a motion for new trial, supported by
affidavits, raising matters not determinable from the record including deprivation
of his constitutional right to a public trial. Because the trial court judge who
presided over appellant’s trial had recused herself, the presiding judge of the First
Administrative Judicial Region transferred the case to the Criminal District Court
No. 4, and then later reassigned it to a visiting judge in the 282nd Judicial District
Court. Although the case was reassigned to the 282nd Judicial District Court, there
was a delay in transferring the case back from the Criminal District Court No. 4.
The motion was eventually set for hearing outside the seventy-five-day window
when a motion for rehearing can be heard and was overruled by operation of law.
See TEX. R. APP. P. 21.8(a), (c).
Because appellant raised matters not determinable in the record and
supported his allegations with appropriate affidavits, we conclude he was entitled
to a hearing on his motion for new trial. See Smith v. State, 286 S.W.3d 333, 338
(Tex. Crim. App. 2009). We agree with appellant that the proper course of action is
to abate this case to the trial court for a hearing on the motion for new trial. See
TEX. R. APP. P. 44.4(a); Montelongo v. State, 631 S.W.3d 734, 738–39 (Tex.
App.—El Paso 2021, no pet.) (mem. op.).
We ORDER the presiding judge of the First Administrative Judicial Region
to assign this case, within THIRTY DAYS of the date of this order, to a trial court
judge for the purpose of conducting a hearing on appellant’s motion for new trial.
We further ORDER that the trial court judge assigned to the case by the presiding
administrative judge conduct a hearing on appellant's motion for new trial within
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NINETY DAYS of the date of this order. The trial court shall make findings of
fact and conclusions of law.
A supplemental reporter’s record of the hearing, and a supplemental clerk’s
record containing the trial court’s findings of fact and conclusions of law and any
order the trial court enters, shall be due within THIRTY DAYS from the date of
the hearing.
We DIRECT the Clerk to transmit copies of this order to the Honorable
Raymond G. Wheless, Presiding Judge, First Administrative Judicial Region; to
Felicia Pitre, Dallas County District Clerk; and to counsel for the parties.
The appeal is ABATED to allow the presiding administrative judge to
assign the case and to allow the assigned trial court judge to conduct the hearing on
the motion for new trial. The appeal shall be reinstated when the supplemental
clerk’s record is filed or 120 days from the date of this order, whichever is earlier.
/s/ LANA MYERS
JUSTICE
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