Allen Bernard Gims v. State

                                                            ACCEPTED
                                                       01-14-00279-CR
                                             FIRST COURT OF APPEALS
                                                     HOUSTON, TEXAS
                                                 12/31/2014 4:02:30 PM
                                                   CHRISTOPHER PRINE
                                                                CLERK



       NO. 01-14-00279-CR
                                      FILED IN
                               1st COURT OF APPEALS
                                   HOUSTON, TEXAS
                               12/31/2014 4:02:30 PM
                               CHRISTOPHER A. PRINE
                                        Clerk
   IN THE COURT OF APPEALS

           OF TEXAS

FIRST SUPREME JUDICIAL DISTRICT




ALLEN BERNARD GIMS, APPELLANT

              VS.

   STATE OF TEXAS, APPELLEE




 MOTION TO ABATE APPEAL




                TERRENCE GAISER
                LAWYER FOR APPELLANT
                (ON APPEAL ONLY)
                2900 SMITH STREET, # 220
                HOUSTON, TEXAS 77006
                SBOT# 07572500
                713/ 225-0666
                tagaiser@aol.com
                                   NO. 1262460
STATE OF TEXAS                              §       IN THE DISTRICT COURT
                                            §
VS.                                         §       HARRIS COUNTY, TEXAS
                                            §
ALLEN BERNARD GIMS                          §       176TH JUDICIAL DISTRICT


                         MOTION TO ABATE APPEAL
         NOW COMES ALLEN BERNARD GIMS, appellant in the above-

captioned cause, by and through his attorney, TERRENCE GAISER, and

files his Motion to Abate Appeal; for which he would show:

1) This is an appeal from a conviction for the offense of capital murder.

   Punishment was assessed at life confinement without parole.

2) As counsel was attempting to complete the brief in this case, counsel

      became aware that a motion to suppress appellant’s recorded statement

      was heard and ruled upon prior to trial. There is no mention of the

      hearing in the clerk’s docket sheet or the court reporter’s record now on

      file.     In fact, although the statement was admitted in evidence, and is

      now in the possession of the District Clerk, it is not evidenced in the

      record.

3) Prior to trial appellant filed a motion to suppress his custodial statements.

      But, as not reflected by the record, prior to trial, outside the presence of

      the jury, the trial court heard evidence for two days on appellant’s

      motion to suppress, and at the conclusion of the hearing the trial court
   overruled appellant’s motion, and appellant’s statement was later

   admitted in evidence.     This is not evident from an examination of the

   record, but only becomes apparent while examining the testimony.

4) Counsel has only recently learned that a substitute court reporter took

   two days of testimony on the motion to suppress appellant’s statement.

   The reporter, Mr. John Partain, has informed counsel that he can have the

   testimony transcribed and filed with the court by January 10, 2015.

5) Similarly, no findings of fact or conclusions of law have been filed as

   required by Art. 38.22, § 6, Tex.Code Crim.Pro. (Vernon 2005).

   WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

appeal be abated, that the Court order the Court Reporter, John Partain, to

file the transcript of the proceedings on appellant’s motion to suppress his

statement, that the trial court enter findings of fact and conclusions of law,

that the District Clerk of Harris County prepare a supplemental transcript

containing the testimony and findings and forward the transcript to this

court, and the appeal be reinstated on the filing of such transcript.

                                        RESPECTFULLY SUBMITTED,

                                        S/Terrence A. Gaiser
                                        TERRENCE A. GAISER
                                        2900 SMITH STREET, # 220
                                        HOUSTON, TEXAS 77006
                                        SBOT# 07572500
                                        tagaiser@aol.com
             CERTIFICATE OF SERVICE

  I CERTIFY THAT A COPY OF THE ABOVE AND
FOREGOING MOTION TO ABATE APPEAL WAS SERVED ON
ALL PARTIES ACCORDING TO THE RULES.

                           S/Terrence A. Gaiser
                           TERRENCE A. GAISER