COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Pending before this Court are five motions filed by Travis Coker.

Accuracy of the Record

On January 16, 2003, we granted Coker's motion for a hearing on the accuracy of the reporter's record, abated the appeal, and ordered the trial court to conduct a hearing to determine whether certain testimony of two witnesses was omitted from the reporter's record. See Coker v. State, No. 08-02-00014-CR, 2003 WL 131590, at *1 (Tex. App.--El Paso Jan. 16, 2003, no pet.) (not designated for publication); see also Tex. R. App. P. 34.6(e)(3). At the hearing, Coker's trial counsel testified that he did not recall the testimony that Coker claimed was omitted. The court reporter testified that he reviewed his notes and the audiotapes of the two witnesses' testimony and he did not find any testimony that was omitted. The trial court accordingly found that the reporter's record is accurate and complete. Also before us are two affidavits by the court reporter. In these affidavits, the court reporter swears that the reporter's record and the exhibits are accurate and complete.

There are three motions pending in this Court regarding the accuracy and completeness of the reporter's record and the exhibits. Considering the affidavits before this Court, the testimony at the hearing, and the trial court's finding, we deny these motions.Newly Discovered Evidence

Coker has filed a motion to abate the appeal so that he can file in the trial court a motion for new trial based on newly discovered evidence that will prove his innocence. We do not have the authority to abate the appeal for this purpose. See Oldham v. State, 977 S.W.2d 354, 358-59 (Tex. Crim. App. 1998). The proper procedure for raising a claim of innocence based on newly discovered evidence is to file a petition for writ of

habeas corpus. See Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). Accordingly, we will deny the motion to abate.

Extension of Time

Finally, Coker has filed a motion for extension of time to file his brief. We will grant that motion. Coker's brief is due on May 5, 2003.

Conclusion

For the reasons stated herein, it is ordered that:

(1) this appeal is reinstated on the docket of this Court;

(2) the petition for rehearing on the motion to obtain a hearing on the accuracy of the reporter's record, filed December 2, 2002, is denied;

(3) the motion to correct State's exhibit number two, filed December 2, 2002, is denied;

(4) the motion for an evidentiary hearing, filed February 25, 2003, is denied;

(5) the motion to abate, filed February 3, 2003, is denied; and

(6) the motion for an extension of time to file the brief, filed December 16, 2002, is granted, and appellant's brief is due May 5, 2003.

SUSAN LARSEN, Justice

March 27, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)