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804 S.W.2d 918

Torres v. State

Texas Court of Appeals, 8th District (El Paso) · decided 1990-06-27

Cited by 12 later decisions — most recently October 2001

12 state decisions

Key passage — most relied on by later courts

“Appellant could proceed with his direct appeal, unabated, raising such points of error as are justified by the record. He may concurrently initiate a writ of habeas corpus action in the trial court (not post-final conviction since the appeal is still pending) to pursue the making of an additional record on the issue of ineffective assistance of counsel. Should he encounter an unfavorable result in the trial court, his recourse is appeal to this Court, accelerated due to the habeas corpus nature of the proceeding. He could at that point move reasonably for a consolidation review of the two appellate matters.”

quoted by 2 later decisions, including MB v. State, M.B. v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1990-06-27

View the full empirical analysis of this case →

¶1OPINION ON MOTION FOR REHEARING

¶2By motion, Appellant requested that this court abate his pending appeal and return the case to the trial court for the purpose of developing a record to support a claim of ineffective assistance of counsel. Appellant necessarily seeks extension of the time periods for motions for new trial and arrest *920of judgment, in order to have a statement of facts available for pursuing this issue before the trial judge. In our prior Opinion on Motion, February 15, 1990 (not yet reported), we held that the procedure requested would be a violation of Tex.R. App.P. 2(a) and (b). Appellant has now filed a Motion for Rehearing in which he correctly points out that the new trial provisions of the Code of Criminal Procedure were repealed and that aspect of the trial court proceedings is now governed by Tex. R.App.P. SO, et seq. Therefore, the procedure requested by Appellant is not in fact violative of that portion of Tex.R.App.P. 2(b) prohibiting suspension of provisions of the Code of Criminal Procedure. Nonetheless, we are still confronted with a request which would enlarge or extend the appellate jurisdiction of this Court by extending the time limits of a jurisdictional step in perfecting the direct appeal.

¶3Admittedly, this Court is in a mild quandary in this matter. On the one hand, we are constrained by Appellate Rule 2(a). We are frequently faced with complaints of ineffective assistance of counsel which are doomed to cursory overruling simply because the timetables for perfecting appeal and fining an appellate record do not realistically allow for a full investigation and record development by newly appointed appellate counsel. While these matters may still be approached via post-conviction habe-as corpus proceedings, there is a natural inclination to speed the process and effectively review such complaints as soon as possible — ideally as part of the direct appeal. On the other hand, even if possible under Rule 2(a), we are not disposed to encourage a practice of disrupting the orderly and prompt flow of direct appeals by what could well become a routine defense practice of seeking such abatement for random trolling of the record for signs of ineffective assistance.

¶4Consequently, we adhere to our prior disposition, denying the Motion to Abate for two reasons: (1) the prohibition imposed by Appellate Rule 2(a); and (2) Appellant’s failure to establish good cause under Appellate Rule 2(b) by at least identifying what specific deficiencies in trial counsel’s performance are reasonably suspected at this time and why. In recognition of the dilemma faced by both the Court and the Appellant, however, we make the following suggestions. Appellant could proceed with his direct appeal, unabated, raising such points of error as are justified by the record. He may concurrently initiate a writ of habeas corpus action in the trial court (not post-final, conviction since the appeal is still pending) to pursue the making of an additional record on the issue of ineffective assistance of counsel. Should he encounter an unfavorable result in the trial court, his recourse is appeal to this Court, accelerated due to the habeas corpus nature of the proceeding. He could at that point move reasonably for a consolidation review of the two appellate matters.

¶5The Appellant’s Motion for Rehearing is hereby overruled.

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