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Ex part Leachman

Court of Appeals of Texas, First District, Houston

August 3, 2017

Ex parte Matthew Leachman

         248th District Court of Harris County 1522187

          ORDER OF ABATEMENT

          LAURA CARTER HIGLEY JUDGE

         Appellant, Matthew Leachman, filed a pro se notice of appeal challenging the trial court's September 28, 2016 judgment denying his pretrial habeas application assigned to trial court cause number 1522187. Appellant's habeas petition is based on his claim that the State, by re-indicting the original trial court cause number 786224 into two separate trial court cause numbers 1520246 and 1520247, is seeking multiple punishments for the same offense, which he asserts violates the double jeopardy clause.

         On October 20, 2016, the reporter's record for the writ hearing, held on September 28, 2016, before the Honorable Leslie Yates, was filed in this Court. At that hearing, the appellant argued that the State's position in filing a motion to consolidate was that there could be separate trials, under trial court cause numbers 1520246 and 1520247, and multiple punishments. The State responded that it intended to withdraw its motion to consolidate and would proceed only on trial court cause number 1520246. The prosecutor further stated that he intended to file an amended motion to cumulate sentences, seeking only to stack any sentence assessed in 1520246 on the existing twenty-year sentence appellant was presently serving.[1] At the end of the hearing, the habeas court denied the petition after noting that if the State's "intent is to proceed on one of the two new indictments, as opposed to both, " that "take[s] care[] of any potential issues, so I am going to deny your writ of habeas corpus."

         Although the district clerk filed a second supplemental clerk's record in this Court attaching the State's first amended motion to cumulate sentence, filed on September 29, 2016, and the docket sheets for trial court cause numbers 1520246 and 1520247, there was no State's motion to dismiss trial court cause number 1520247 or any trial court's order included in that record. The Court interprets the prosecutor's statement on the record, that the State would proceed only on trial court cause number 1520246, as an intent to promptly move to dismiss trial court cause number 1520247, which the habeas court apparently relied upon in denying the habeas application. However, to date, after reviewing the district clerk's website for trial court cause number 1520247, there does not appear to be a motion to dismiss that case filed by the State or any order dismissing it.

         Accordingly, the Court sua sponte ABATES the appeal and REMANDS for the district court to immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's counsel, if any, shall be present. Appellant shall also be present for the hearing in person or, if appellant is incarcerated, at the trial court's discretion, appellant may participate in the hearing by closed-circuit video teleconferencing.[2]

We direct the trial court to:
1) inquire whether the State intends to file a motion to dismiss trial court cause number 1520247;
a. if so, set a deadline for when the State must file such a motion, no later than 10 days from the date of the hearing, and, if one is filed, to enter an order;
b. if not, have the State set forth the reasons for not filing such a motion after indicating on the writ hearing record that the State would proceed only on trial court cause number 1520246;
2) make any other findings and recommendations the trial court deems appropriate; and
3) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.

See Tex. R. App. P. 34.5(c)(2), 44.4(b).

         The trial court coordinator shall set a hearing date no later than 10 days from the date of this order and notify the parties. The trial court shall have a court reporter record the hearing and file a supplemental reporter's record with this Court within 10 days of the date of the hearing. If the hearing is conducted by video teleconference, a certified ...


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