¶1dissenting from the denial of en banc consideration.
¶2I called for en banc review of this case because I believe that it meets both criteria for en banc consideration. See Tex. RApp. P. 41.2(c) (en banc consideration is not favored and should not be ordered unless (1) necessary to secure or maintain uniformity of the court’s decisions or (2) extraordinary circumstances require en banc consideration.)
¶3I believe that when a panel of this Court creates, out of whole cloth, a totally new procedure for dealing with a matter, as the panel did here, it constitutes an extraordinary circumstance requiring the consideration and agreement of at least a majority of the judges of this Court. Furthermore, this double abatement procedure not only may require this Court to carry out two abatements and reviews, but it also may require two additional proceedings in the trial court. This significant commitment of judicial resources should not be made without the participation of the whole court.
¶4As Justice Taft points out in his dissent, this double abatement procedure is also a departure from this Court’s previous panel decisions. Our failure to address this lack of uniformity leaves two lines of cases dealing with this issue. One line of cases is represented by Pettway v. State, 4 S.W.3d 390 (Tex.App.-Houston [1st Dist.] 1999, order), disposition on merits, 2000 WL 210579, No. 01-99-00500-CR (Tex.App.-Houston [1st Dist.], Feb. 24, 2000, pet. ref'd) (not designated for publication), and Cantu v. State, 988 S.W.2d 481 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). In Pettway and Cantu, we followed the procedure of the Court of Criminal Appeals as set out in Oldham v. State, 977 *705S.W.2d 354 (Tex.Crim.App.1998), and reviewed the record to see if appellant demonstrated that he was deprived of counsel and whether, as a result, he was denied an opportunity to file a motion for new trial. See Pettway, 4 S.W.3d at 391; Cantu, 988 S.W.2d at 483. Now comes Jack v. State, and, without consideration of what previous panels had done, this panel decided to create a new procedure for handling the same issue dealt with in Pettway and Cantu. It seems that another panel of this court could still decide to follow Pettway and Cantu.
¶5The panel has followed a natural inclination to try to speed the process and effectively review these complaints as soon as possible, but in doing so has contorted language from Oldhamso that it appears to sanction a procedure that does the same thing as the one prohibited by the Oldhamcourt. I believe the panel failed to show appropriate judicial restraint in its effort to conform the direct appeal process to its ideal. The Court of Criminal Appeals and other panels of this Court have consistently limited their consideration of this issue to a review of the record before them. This panel has chosen to do what the Court of Criminal Appeals refused to do in Oldhamand continued to refuse to do in Smith v. State, 17 S.W.3d 660 (Tex.Crim.App.2000) (reversing this Court’s opinion at 990 S.W.2d 893 (Tex.App.-Houston [1st Dist.] 1999)): that is, create a procedure that allows an appellant, during the direct appeal process, to go back to the trial court to make a new record on whether he received effective assistance of counsel during the 30-day period for filing a motion for new trial.
¶6The panel has established a procedure that is wasteful of judicial resources. The procedure also appears to supplant the post-conviction habeas corpus process in these situations. I suspect this new procedure will encourage a practice of disrupting the orderly and prompt flow of direct appeals by what could well become a routine defense practice of seeking abate-ments when no motion for new trial was filed.
¶7Accordingly, I respectfully dissent from the denial of en banc consideration.