A jury found appellant guilty of delivery of cocaine, and, after finding two enhancement paragraphs true, sentenced him to ten years imprisonment and a $2,000 fine. On July 6, 2000, the day he was sentenced, appellant filed a notice of appeal which appears to have been filled out and signed by trial counsel. The court's docket sheet contains the notation: "Attorney on appeal to be appointed." Over a month later, the district clerk filed a Letter of Assignment to the First Court of Appeals, and on that form is the entry: "Appeal Attorney of Record: To Be Determined."

The trial court appointed appellate counsel sixty-nine days after appellant was sentenced, which was thirty-nine days after his time to file a motion for new trial expired. Appellant's new counsel filed a Motion to Abate and Motion for Leave to File Out of Time Motion for New Trial in the court of appeals, alleging that:

If counsel had been appointed in a timely manner counsel would have filed a motion for new trial alleging ineffective assistance of counsel based on the fact that trial counsel neglected to subpoena material witnesses.

Attached was appellant's handwritten affidavit,⁽¹⁾ stating that his trial counsel

never explained to me the time frame for filing a motion for a new trial. If I had known about a motion for new trial an [sic] the time I had to work in I would have done something about it myself. All I was told by my attorney ... was to sign this piece of paper and the court would appoint me an attorney, he never explained to me about the appeal process at all or my appellate rights.

Five months later, the First Court of Appeals issued a published order abating the appeal and remanding the case to the trial court "to allow appellant an opportunity to rebut the rebuttable presumption that he was effectively represented by [trial counsel] during the 30-day period after July 6."⁽²⁾

Based upon the requirements of this order, the trial court held a hearing on April 21, 2001, and found that appellant's trial attorney: 1) believed he was relieved of his duties after sentencing; and 2) had reassured appellant that the trial court would appoint appellate counsel. As a consequence, no one advised appellant of his right to file a motion for new trial or that such a motion must be filed within thirty days after sentencing.

The supplemental transcript of this hearing was returned to the First Court of Appeals on May 11, 2001. Eight months later, on January 10, 2002, the First Court of Appeals issued a second abatement order to permit appellant to file an out-of-time motion for new trial alleging ineffective assistance of trial counsel for failing to subpoena certain witnesses.⁽³⁾ The First Court of Appeals explicitly stated that it was not relying upon Tex. R. App. P. 2, but it did not state what rule that it was relying upon.⁽⁴⁾

Although agreeing that this "double abatement" procedure might be an admirable exercise in equity, Justice Taft dissented because the court had no "authority to create a new abatement mechanism, even to achieve a just result."⁽⁵⁾ He stated that "the [original abatement] order set an ill-advised judicial precedent by adding a new, time-consuming step to the appellate process without citing any supporting authority on point,"⁽⁶⁾ and argued that "the double abatement procedure established in our order does not conserve judicial resources."⁽⁷⁾ It had the opposite effect. By twice remanding the case, the beginning of the appellate timetable had already been delayed by more than eighteen months.

The State filed a petition for discretionary review on February 11, 2002.⁽⁸⁾

Meanwhile, appellant filed his out-of-time motion for new trial in the trial court on February 6, 2002, alleging ineffective assistance of counsel for failing both to subpoena certain witnesses to the trial and to convey a plea bargain offer to the defendant. The trial court held a hearing on that motion on March 13, 2002.⁽⁹⁾ Appellant testified that his attorney did not convey to him a three-year plea offer that the prosecutor stated she was willing to offer. He also said that he told his attorney about some witnesses who were willing to testify on his behalf at trial, but they were not subpoenaed. Appellant said those witnesses would "have said something different than what the officers would have been saying." But he did not specify what the uncalled witnesses would have said.

Appellant's trial attorney testified that he communicated the three year plea offer to appellant, but that appellant was willing only to take a state jail offer of less than two years. The prosecutor told defense counsel that such an offer had been made for the first appearance, but it was withdrawn when the offer was not immediately accepted. Counsel also testified that appellant had given him the first names of a couple of people, one of whom appellant said lived on Duval Street. Counsel attempted to "track down" such a person and went to Duval Street looking for "John," but he was unsuccessful. Based on the testimony, the trial judge denied the motion for new trial on March 13, 2002.

A month later, appellant filed a motion in this Court to dismiss the State's petition, arguing that the court of appeals' order of abatement was not a "decision" that affected the trial court's judgment and therefore it would be premature to review its "double abatement" procedure. Appellant also argued that, because the trial court had denied appellant's motion for new trial, the issue was moot.⁽¹⁰⁾ Finally, appellant argued that "it would be premature for this court to grant review of this one issue when any other issues, which could be raised in a direct appeal have not yet been briefed or ruled on by the Court of Appeals." We granted the State's petition on September 25, 2002, and denied appellant's motion, but ordered the parties to brief the issue of "whether the State is seeking review of an interlocutory order."

We now conclude that the State's attempt to appeal the "double abatement" procedure, after the out-of-time motion for new trial was denied but before the court of appeals addressed any of appellant's possible points of error, constitutes an appeal from an interlocutory order.

Rule 66.1 of the Texas Rules of Appellate Procedure limits this court's discretionary review authority to "a court of appeals' decision in a criminal case." As we stated in Williams v. State,⁽¹¹⁾ a procedurally similar case, "by entering an order merely abating an appeal a court of appeals does not 'decide a case.'"⁽¹²⁾ Ordinarily, then, this Court will not entertain a petition for discretionary review from an interlocutory order of abatement by the court of appeals because that order does not finally dispose of the case in that court.⁽¹³⁾

The State argues that this Court has thrice reviewed this out-of-time motion for new trial abatement procedure and has held, in those cases, that the Rules of Appellate Procedure did not permit this practice. While the State is correct, those three cases were in a different procedural posture. In Price v. State,⁽¹⁴⁾ Oldham v. State,⁽¹⁵⁾ and Smith v. State,⁽¹⁶⁾ the courts of appeals had attempted to abate each case for the trial court to consider an out-of-time motion for new trial. In each case, the State appealed before the motion for new trial was heard in the trial court. Furthermore, in each case this Court held that the abatement procedure was invalid under the cited rule of appellate procedure.⁽¹⁷⁾ In Price, we explained why the State's petition for discretionary review was not an appeal of an interlocutory order:

The Court of Appeals' decision [ordering abatement to consider an out-of-time motion for new trial] in this case has indeed disposed of the case. Appellant's point of error was that the trial court erred in not holding a hearing on his motion for new trial. The Court of Appeals sustained that point without addressing the State's contention that the motion was not timely presented to the trial court. Pursuant to the Court of Appeals' decision the trial court may either grant or deny the motion for new trial after a hearing, or may refuse to hold a hearing. If the trial court grants the motion for new trial, the Court of Appeals has no jurisdiction over the case despite the abatement, and the State may appeal anew pursuant to Article 44.01, V.A.C.C.P. Likewise, if the trial court denies the motion for new trial the defendant may then again start the appeal process anew under the Rules of Appellate Procedure. See e.g. Tex. R. App. Pro. 41(b). According to the Court of Appeals' decision, the judgment becomes final within thirty days if the trial court refuses to hold a hearing. There is no reason to consider the Court of Appeals' written decision as an interlocutory decision in the same way an abatement for findings of fact and conclusions of law is interlocutory when both parties in the instant case may have the right to appeal issues in the case as if a motion for new trial had been granted or denied immediately after conviction.⁽¹⁸⁾

Similarly, in Oldham, the court of appeals set aside the sentence and notice of appeal, and abated the case two years and eight months after the original sentencing to allow the defendant to file her out-of-time motion for new trial.⁽¹⁹⁾ In effect, the court of appeals dismissed the appeal entirely; thus, the State could appeal from that final decision. In Smith, the court of appeals followed the same abatement procedure that had been disallowed in Oldham, and, once again, the State could appeal from that final decision.

There are two important procedural differences between those three cases and the present one.

First, in this case, the court of appeals specifically retained jurisdiction over the case despite its remand order to restart both the time period for filing a new trial motion and the appellate timetables. It stated:

If the trial judge grants the new trial motion, the appellate record shall be supplemented with that order, and appellant's appeal will be dismissed. If the trial judge overrules the new trial motion, the record shall be supplemented with that order and the record of any hearing held on such motion, and the parties will be permitted to brief any issues related to the overruled motion.⁽²⁰⁾

Thus, unlike the situation in Price, Oldham, or Smith, the court of appeals did not render any final decision in this case. Its decision, which expressly required supplementation of the appellate record, was entirely interlocutory.

Second, unlike the situation in Price, Oldham, or Smith, the trial court in this case actually held a hearing and denied the motion for new trial. The appellate record was not supplemented with the transcript of this hearing until November of 2002, and the parties have not yet filed briefs on the merits of any points of error relating to appellant's trial. Thus, there is no longer any open question about the possible finality of the abatement decision in this case as there was in Price, Oldham, or Smith. Regardless of the validity of the procedure ordered by the court of appeals, its decision has turned out to be an interlocutory one, not a final one. Because this Court does not ordinarily review interlocutory decisions, we dismiss the State's petition for discretionary review and remand the case to the court of appeals for further proceedings.

Filed: March 24, 2004.

Publish

1. We note that an appellate court may not consider factual assertions that are outside the record. Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996). An affidavit attached to a motion filed in the appellate court is not part of the appellate record concerning events or actions in the trial court and it cannot be considered for the truth of the matters asserted. See Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App. 2002); Moore v. State, 999 S.W.2d 385, 398 (Tex. Crim. App. 1999).

2. Jack v. State, 42 S.W.3d 291, 293 (Tex. App.-Houston [1^st Dist.] 2001) (Jack I).

3. Jack v. State, 64 S.W.3d 694 (Tex. App. -Houston [1^st Dist.] 2002) (Jack II).

4. Justice Cohen wrote a concurring opinion to the remand order, noting that the First Court of Appeals had remanded five other pending appeals for the same reason and that

[i]n every Jack hearing so far, the evidence has shown that the defendant was denied his constitutional right to counsel during that critical stage of proceedings. The remedy for that is for trial courts to appoint appellate counsel promptly upon receiving notice of appeal and for court-appointed trial counsel not to file a notice of appeal and then abandon their clients. These goals can be accomplished by adding one sentence to the standard notice of appeal: "Counsel moves to withdraw and moves the Court to appoint appellate counsel immediately."

64 S.W.3d at 698. Justice Cohen concluded that trial courts should appoint appellate counsel promptly upon receiving notice of appeal. In the past, cases had sometimes slipped through the crack and, although notice of appeal was timely filed, appointment of appellate counsel was not made until long after that date. In the normal case, appointment of appellate counsel should be made at the same time a defendant gives notice of appeal to ensure that a defendant's post-trial rights and options are fully protected. This goal is now furthered by amended Tex. R. App. P. 25.2(a)(2) which requires the trial judge to "enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order." Under this amended rule, the trial judge will normally enter the certification of appeal at the time of sentencing, and it is at that time, if an indigent defendant has the right to appeal and wishes to do so, the trial court will appoint counsel. Thus, the two events should occur in the same proceeding; first the trial court completes the certification of appeal and, in the appropriate case, then appoints appellate counsel.

5. Jack II, 64 S.W.3d at 698 (Taft, J., dissenting). Justice Nuchia wrote a second dissent from the denial of en banc reconsideration, again arguing that the double abatement procedure "is wasteful of judicial resources" and "appears to supplant the post-conviction habeas process in these situations." Id. at 705 (Nuchia, J., joined by Radack & Taft, JJ., dissenting to denial of en banc reconsideration).

6. Id. at 700.

7. Id.

8. The State's Ground for Review states:

The First Court of Appeals erred in ordering the trial court to give the appellant a second chance to file a motion for new trial, when the trial court had already lost jurisdiction to consider an out-of-time motion for new trial.

9. The State objected to the trial court conducting any hearing until this Court had ruled on its petition for discretionary review.

10. See Chacon v. State, 745 S.W.2d 377 (Tex. Crim. App. 1988) (noting that "[g]enerally a cause, issue or proposition is or becomes moot when it does not, or ceases to, rest on any existing fact or right"). A case becomes moot on appeal when the judgment of the appellate court can no longer have an effect on an existing controversy or cannot affect the rights of the parties. VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) (per curiam).

We do not dismiss this appeal based on mootness because the "double abatement" procedure could still have an effect upon the resolution of this appeal. The results of this procedure are still part of the pending appeal, even if the propriety of ordering the procedure has been mooted by its occurrence.

11. 780 S.W.2d 802 (Tex. Crim. App. 1989).

12. Id. at 803 (quoting Clinton, J., dissenting in Dugard v. State, 688 S.W.2d 524 (Tex. Crim. App. 1985)). In Dugard, Judge Clinton stated:

By entering an order merely abating an appeal a court of appeals does not "decide a case" nor does it deliver "a written opinion." Its decision in the case and the reason for that decision awaits outcome of whatever proceeding is to be had in the trial court, reflected in a supplemental record filed in the court of appeals. With that supplemental record before it the court of appeals may then decide the case with a written opinion giving the reason for its decision, after which the losing party is entitled to seek review by this Court.

688 S.W.2d at 534 (Clinton, J., dissenting).

13. Measles v. State, 661 S.W.2d 732, 733 (Tex. Crim. App. 1983).

14. 826 S.W.2d 947 (Tex. Crim. App. 1992).

15. 977 S.W.2d 354 (Tex. Crim. App. 1998).

16. 17 S.W.3d 660 (Tex. Crim. App. 2000).

17. In Oldham, for example, this Court rejected reliance upon Tex. R. App. P. 2(b) as a mode to suspend the time limits in which a motion for new trial must be filed in the trial court. We stated that:

Rule 2(b) is in essence an escape valve to be used by an appellate court when a case becomes unduly stalled or delayed in the appellate process due to procedural rules, and the interests of justice compel speeding up the process; although Rule 2(b) may be used to shorten the time limits when justice so requires, it should not be used as a method to lengthen procedural time limits absent truly extraordinary circumstances, even in an effort to protect the substantive rights of litigants.

Oldham, 977 S.W.2d at 360.

18. Price, 826 S.W.2d at 948.

19. Oldham, 977 S.W.2d at 356.

20. Jack II, 64 S.W.3d at 697.