Ingram v. State

The record was filed September 28, 2010 and the appellant’s brief is due October 28, 2010. Appellant filed a motion to abate the appeal while the trial court considers appellant’s motion to establish the date on which he received actual notice of the judgment. See Tex. R. Civ. P. 306a(5). According to appellant, the trial court conducted a hearing on the motion on September 17, 2010. See In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (filing a sworn motion “establishes a prima facie case that the party lacked timely notice and invokes a trial court’s otherwise-expired jurisdiction for the limited purpose of holding an evidentiary hearing to determine the date on which the party or its counsel first received notice or acquired knowledge of the judgment.”); John v. Marshall Health Servs., 58 S.W.3d 738, 741 (Tex. 2001). We have not yet received either the supplemental reporter’s record of the hearing or a supplemental clerk’s record containing the trial court’s ruling on the motion.*fn1 The trial court’s ruling on the motion will potentially affect the issues that will be raised in the appellant’s brief on appeal.

It is, therefore, ORDERED that the appeal is ABATED until the supplemental reporter’s record of the September 17, 2010 hearing and the supplemental clerk’s record containing the trial court’s ruling on the motion have been filed with the Court of Appeals. If the trial court does not sign a written order, the clerk of the trial court may certify the unavailability of the document. See generally Tex. R. App. P. 34.5(c)(1). Appellate timetables shall recommence without further Order of the Court when the supplemental appellate record is filed in the appellate court.