Christopher Chance McGary v. the State of Texas ( 2022 )

NO. 12-21-00115-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHRISTOPHER CHANCE MCGARY, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
ORDER
This court issued an opinion on May 18, 2022, in which we held in part that the trial court
did not abuse its discretion in failing to hold a hearing on Appellant’s motion for new trial
because there was no evidence in the record supporting Appellant’s representation in a footnote
that Appellant, through counsel, timely presented the motion to the trial court. Appellant filed a
motion for rehearing and urged this court to abate the appeal and remand the cause to the trial
court for an evidentiary hearing to determine the facts surrounding the alleged presentment. See,
e.g., Butler v. State, 6 S.W.3d 636, 638 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d). Having
considered Appellant’s motion and having reviewed the relevant authority, the Court is of the
opinion that this case should be abated and remanded to the trial court for the limited purpose of
holding an evidentiary hearing to determine the facts surrounding the alleged presentment.
IT IS THEREFORE ORDERED that this appeal is abated, reinstated, and the case is
hereby remanded to the trial court for the limited purpose of holding an evidentiary hearing to
determine the facts surrounding the alleged presentment. See TEX. R. APP. P. 19.1.
IT IS FURTHER ORDERED that the trial court shall conduct this evidentiary hearing
and make written findings of fact and conclusions of law to be forwarded to this Court along
with any evidence presented at the hearing in a supplemental clerk’s record and a supplemental
reporter’s record not later than twenty days after the date of this order. Should further time be
needed by the court, it should be requested by the same deadline.
WITNESS the Honorable James T. Worthen, Chief Justice, Court of Appeals, 12th Court
of Appeals District, Tyler, Texas.
GIVEN UNDER MY HAND AND SEAL OF OFFICE at Tyler, Texas this 30th day of
June, 2022.
By: _______________________________
KATRINA MCCLENNY, CLERK