Imelda Barrera v. State ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
April 21, 2020
No. 04-19-00708-CR
Imelda BARRERA,
Appellant
v.
The STATE of Texas,
Appellee
From the 79th Judicial District Court, Brooks County, Texas
Trial Court No. 18-06-11255-CRSI
Honorable Federico Hinojosa, Judge Presiding
ORDER
On April 7, 2020, appellant filed a “Motion to Abate Appeal and Remand for Out of
Time Motion for New Trial” in which appellant asserts she wishes to file an out-of-time motion
for new trial based on the ineffective assistance of counsel at trial.
The issue appellant seeks to develop can be properly raised in a post-conviction
application for writ of habeas corpus. See Pettway v. State, 4 S.W.3d 390, 391 (Tex. App.—
Houston [1st Dist.] 1999, order) (per curiam) (holding that defendant failed to show good cause
to suspend appellate rules to allow him to file out-of-time motion for new trial when defendant
could raise ineffectiveness claim in post-conviction habeas corpus proceeding); Fuentes v. State,
No. 01-04-01018-CR, 2006 WL 2640807, at *2 (Tex. App.—Houston [1st Dist.] Sept. 14, 2006,
no pet.) (mem. op., not designated for publication) (denying defendant’s motion to abate because
ineffectiveness issues defendant sought to develop could “properly be raised in a post-conviction
writ of habeas corpus [proceeding]”); see also Griffith v. State, 507 S.W.3d 720, 723 (Tex. Crim.
App. 2016) (Hervey, J., concurring) (ineffective-assistance claims may “be addressed on
habeas”). This court has previously held that it will not abate an appeal for this purpose because
ineffective assistance may be raised in a post-conviction habeas corpus proceeding. see also
Bowler v. State, 822 S.W.2d 334, 335 (Tex. App.—San Antonio 1992, pet. ref’d).
Appellant’s “Motion to Abate Appeal and Remand for Out of Time Motion for New
Trial” is DENIED.
On April 7, 2020, appellant also filed a motion for extension of time requesting an
additional seven (7) days from the date of an order denying her motion to abate. Appellant’s
motion for an extension of time is GRANTED. Appellant’s brief is due on or before April 28,
2020.
_________________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 21st day of April, 2020.
___________________________________
MICHAEL A. CRUZ,
Clerk of Court