Allen Bernard Gims v. State

ACCEPTED 01-14-00279-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 12/31/2014 4:02:30 PM CHRISTOPHER PRINE CLERK

NO. 01-14-00279-CR

FILED IN

1st COURT OF APPEALS

HOUSTON, TEXAS

12/31/2014 4:02:30 PM CHRISTOPHER A. PRINE

Clerk

IN THE COURT OF APPEALS

OF TEXAS

FIRST SUPREME JUDICIAL DISTRICT

ALLEN BERNARD GIMS, APPELLANT

VS.

STATE OF TEXAS, APPELLEE

MOTION TO ABATE APPEAL

TERRENCE GAISER

LAWYER FOR APPELLANT (ON APPEAL ONLY)

2900 SMITH STREET, # 220

HOUSTON, TEXAS 77006

SBOT# 07572500

713/ 225-0666 [email protected] NO. 1262460

STATE OF TEXAS § IN THE DISTRICT COURT §

VS. § HARRIS COUNTY, TEXAS §

ALLEN BERNARD GIMS § 176TH JUDICIAL DISTRICT

MOTION TO ABATE APPEAL

NOW COMES ALLEN BERNARD GIMS, appellant in the above- captioned cause, by and through his attorney, TERRENCE GAISER, and files his Motion to Abate Appeal; for which he would show: 1) This is an appeal from a conviction for the offense of capital murder.

Punishment was assessed at life confinement without parole.

2) As counsel was attempting to complete the brief in this case, counsel became aware that a motion to suppress appellant’s recorded statement was heard and ruled upon prior to trial. There is no mention of the hearing in the clerk’s docket sheet or the court reporter’s record now on file. In fact, although the statement was admitted in evidence, and is now in the possession of the District Clerk, it is not evidenced in the record.

3) Prior to trial appellant filed a motion to suppress his custodial statements.

But, as not reflected by the record, prior to trial, outside the presence of the jury, the trial court heard evidence for two days on appellant’s motion to suppress, and at the conclusion of the hearing the trial court overruled appellant’s motion, and appellant’s statement was later admitted in evidence. This is not evident from an examination of the record, but only becomes apparent while examining the testimony.

4) Counsel has only recently learned that a substitute court reporter took two days of testimony on the motion to suppress appellant’s statement.

The reporter, Mr. John Partain, has informed counsel that he can have the testimony transcribed and filed with the court by January 10, 2015. 5) Similarly, no findings of fact or conclusions of law have been filed as required by Art. 38.22, § 6, Tex.Code Crim.Pro. (Vernon 2005).

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this appeal be abated, that the Court order the Court Reporter, John Partain, to file the transcript of the proceedings on appellant’s motion to suppress his statement, that the trial court enter findings of fact and conclusions of law, that the District Clerk of Harris County prepare a supplemental transcript containing the testimony and findings and forward the transcript to this court, and the appeal be reinstated on the filing of such transcript.

RESPECTFULLY SUBMITTED, S/Terrence A. Gaiser TERRENCE A. GAISER 2900 SMITH STREET, # 220 HOUSTON, TEXAS 77006 SBOT# 07572500 [email protected] CERTIFICATE OF SERVICE

I CERTIFY THAT A COPY OF THE ABOVE AND

FOREGOING MOTION TO ABATE APPEAL WAS SERVED ON

ALL PARTIES ACCORDING TO THE RULES.

S/Terrence A. Gaiser

TERRENCE A. GAISER