Amon Tawanda Dzwairo v. State

Opinion

05-15-00689-CR

Cause No. 219-82237-2013

STATE OF TEXAS § IN THE 219TH FILED IN § 5th COURT OF APPEALS DALLAS, TEXAS

V. § DISTRICT COURT 9/14/2015 8:07:16 PM

§ LISA MATZ AMON TAWANDA DZWAIRO § COLLIN COUNTY, TClerk EXAS

FINDINGS OF FACT

The Court enters the following Findings of Fact pursuant to the Appellate Court’s Order dated August 18, 2015:

1. The Defendant desires to prosecute the appeal.

2. Defendant is indigent and entitled to proceed without payment of costs of the reporter’s record. Defendant’s current counsel appears to be prosecuting the appeal as quickly and effectively as possible. Therefore, no new counsel is necessary at this time.

3. The name and address of the Court reporter who recorded the proceedings is :

Ms. Indu Bailey

2100 Bloomdale Rd., Ste. 20132 McKinney, TX. 75071

4. The Court Reporter’s explanation for the delay is due to several factors:

Findings of Fact Page 1 of 2 a. The trial was a lengthy one lasting over a week with numerous witnesses.

b. There are multiple appeals coming due at or around the same time as this appeal.

c. Ms. Bailey is the assigned court reporter for the 219th District Court, which is a general jurisdiction court with a very active daily docket in Criminal as well as other matters. Her work schedule requires her presence in the courtroom on a daily basis, thus delaying her ability to address the requested record.

5. Ms. Bailey is requesting a six week extension for this record.

SIGNED THIS 11th DAY OF SEPTEMBER, 2015.

________________________________

Scott J. Becker

Presiding Judge, 219th Judicial District Court Collin County, Texas

Findings of Fact Page 2 of 2

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1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME

2 COURT CAUSE NO. 219-82237-2013

3 THE STATE OF TEXAS ) IN THE DISTRICT COURT )

4 )

VS. ) COLLIN COUNTY, TEXAS 5 )

)

6 AMON TAWANDA DZWAIRO ) 219TH JUDICIAL DISTRICT 7

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12 ********************************************************* 13 HEARING

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21 On the 11th day of September, 2015, the following 22 proceedings came on to be held in the above-titled and

23 -numbered cause before the Honorable Scott. J. Becker, Judge

24 Presiding, held in McKinney, Collin County, Texas. 25 Proceedings reported by computerized stenotype machine.

Tonya Lebo, CSR #7891

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1 APPEARANCES

2 MS. CYNTHIA ANN WALKER SBOT NO. 24014843 3 COLLIN COUNTY DISTRICT ATTORNEY'S OFFICE Collin County Courthouse 4 2100 Bloomdale Road McKinney, Texas 75071 5 Telephone: (972)548-4323 E-mail: cwalker@co.collin.tx.us 6 ATTORNEY FOR THE STATE OF TEXAS 7

8 MR. JOHN LEE SCHOMBURGER SBOT NO. 17801540 9 THE LAW OFFICE OF JOHN SCHOMBURGER 555 Republic Drive 10 Suite 200 Plano, Texas 75074 11 Telephone: (972)978-2218 E-mail: jschomburger@gmail.com 12 ATTORNEY FOR THE DEFENDANT 13

14 ALSO PRESENT

15 Defendant appearing telephonically 16 Indu Bailey - Official Court Reporter, 219th District Court

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1 CHRONOLOGICAL INDEX VOLUME 1 OF 1 VOLUME

2 HEARING

3 Page Vol.

SEPTEMBER 11, 2015 4 Case called................................... 04 1 5 Statement by Ms. Bailey....................... 06 1 6 Statement by Mr. Schomburger.................. 07 1 7 End of proceedings............................ 09 1 8 Court reporter's certificate.................. 10 1 9 10

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1 P R O C E E D I N G S 2 (September 11, 2015; 9:36 a.m.)

3 THE COURT: This is Cause No. 4 219-82237-2013, State of Texas versus Amon Tawanda Dzwairo.

5 Any attorneys present please identify

6 yourselves for the record. 7 MR. SCHOMBURGER: John Schomburger, attorney

8 for the Defendant on appeal.

9 MS. WALKER: Cynthia Walker, attorney for 10 the State of Texas.

11 THE COURT: We're just making a record here

12 this morning. We're about to call the Defendant so he can 13 participate telephonically as soon as I can find the phone

14 system in here. The Court of Appeals has asked us to make

15 a record about the status of the transcript in this case. 16 We're just taking the time to do that here. One moment.

17 (Brief recess)

18 (The Court placing telephone call) 19 THE COURT: Hello, this is Judge Becker from

20 Collin County.

21 TELEPHONE SPEAKER: Okay. 22 THE COURT: I was told I could call this

23 number and get one of your inmates on the phone to

24 participate telephonically in a hearing. I'm looking for 25 Amon Dzwairo.

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1 TELEPHONE SPEAKER: Just a moment. 2 MS. BAGLEY: Ms. Bagley (phonetic).

3 THE COURT: Ms. Bagley, this is Judge Becker 4 of Collin County in the 219th District Court.

5 MS. BAGLEY: Yes, sir.

6 THE COURT: I'm trying to get Amon Dzwairo 7 on the phone so we can have him participate in this

8 telephonically in this hearing.

9 MS. BAGLEY: Yes. Hold on one second. 10 THE COURT: Mr. Dzwairo, can you hear me?

11 THE DEFENDANT: Yes, sir.

12 THE COURT: We're present in the courtroom. 13 Your appellate attorney, Mr. Schomburger is present, a

14 prosecutor for the State of Texas. And we also have the

15 court reporter from the case here. And she's going to get 16 sworn in in a second and just give us an explanation as to

17 the status of the transcript, because that's what the Court

18 of Appeals has asked us to do at this time. 19 And I want to make sure you can participate.

20 Even though you can't be here, you can at least hear what's

21 going on remotely through the telephone. Can you hear me? 22 THE DEFENDANT: Yes, I can, sir.

23 THE COURT: Very good.

24 Ms. Bailey, if you'll step up and raise your 25 right hand.

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1 (Ms. Bailey was sworn) 2 THE COURT: If you'll stand right next to

3 that microphone, otherwise Mr. Dzwairo will have difficulty 4 hearing you. You see how close I am? You have to be that

5 close. You'll feel really loud here, otherwise he won't

6 hear anything on the other end. 7 If you could, please, give us an update as

8 to what the status of the record is in his particular case.

9 Thank you. 10 MS. BAILEY: This is Indu Bailey, the court

11 reporter for the 219th District Court. On State versus

12 Dzwairo, I have started the record. But it was a long 13 record, and so it's not going to be completed by the time

14 required by the Court of Appeals. I'm asking for six

15 weeks. 16 THE COURT: Okay. And when you say it was a

17 long trial, I presided over it, but I can't recall, was it

18 over a week? 19 MS. BAILEY: Yes.

20 THE COURT: Okay. And without going into

21 the details of any other cases, do you have any other 22 records you're also having to work on at this time?

23 MS. BAILEY: Yes, sir. The other one that's

24 due, or about the same time, are State versus Quincey, 25 Lajoshua Davis. And that is due also right about the same

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1 time that the Dzwairo record is due. State versus Quincey 2 will be filed next week. And that's when I will start on

3 Dzwairo and try to finish it within the next six weeks. I 4 have at least about another six records on my plate right

5 now.

6 THE COURT: Is there anything else you 7 wanted to let the Court of Appeals know about this one?

8 MS. BAILEY: No, sir.

9 THE COURT: All right. You can step back. 10 Mr. Schomburger, I presume it is, of course,

11 the Defendant's desire to continue to pursue the appeal; is

12 that correct? 13 MR. SCHOMBURGER: We have corresponded,

14 Judge, and it is the Defendant's desire to pursue the

15 appeal. There's no doubt about that, Judge. 16 THE COURT: Did you hear all of that,

17 Mr. Dzwairo?

18 THE DEFENDANT: Yes, sir, I did. 19 THE COURT: Is there anything else anybody

20 thinks they need to put on the record at this time?

21 MS. WALKER: Nothing from the State. 22 MR. SCHOMBURGER: Judge, I do.

23 THE COURT: Go ahead, Mr. Schomburger.

24 MR. SCHOMBURGER: I would like the record to 25 reflect that the court reporter is the official court

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1 reporter for the 219th District Court. The 219th District 2 Court does have an active trial docket, does both civil and

3 criminal, which consumes a lot of time for the official 4 court reporter, aside from the other cases she's working on

5 right now. So that factors into her busy schedule.

6 Judge, I would also like the record to 7 reflect that at the time that I was appointed on the case,

8 the record due date had already expired. The trial

9 attorneys filed notice of appeal, didn't intend to be the 10 appellate attorneys. And while -- I don't think they

11 actually withdrew from the case at that point. So the

12 record expired. 13 I was appointed on the case. I filed a

14 request for the record, but by that time it had already

15 expired, so that created the problem that we have. 16 THE COURT: And there was some issue, I

17 think, at the time, because Mr. Dzwairo did have retained

18 counsel, and there was a hearing necessary to determine if 19 he had acquired indigent status post trial, which is not

20 uncommon. There was a little delay in that too; is that

21 correct? 22 MR. SCHOMBURGER: Yes, sir, that's correct.

23 THE COURT: Thank you for the addition,

24 Mr. Schomburger. 25 Anything else anybody thinks they need to

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1 put on the record? 2 MS. WALKER: Nothing from the State, Your

3 Honor. 4 MR. SCHOMBURGER: No, sir.

5 THE COURT: And we'll recess this matter.

6 Mr. Dzwairo, did you hear all of that? 7 THE DEFENDANT: Yes, sir, I did.

8 THE COURT: Very good, sir. Then I'm going

9 to hang up. You can go about your business. I appreciate 10 your patience and flexibility.

11 Thank you to everybody who is present here

12 today. 13 MR. SCHOMBURGER: Thank you, Judge.

14 THE DEFENDANT: Thank you.

15 (End of proceedings, 9:44 a.m.) 16

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1 STATE OF TEXAS ) 2 COUNTY OF COLLIN )

3 I, Tonya Lebo, Deputy Court Reporter in and for the 219th 4 District Court of Collin County, State of Texas, do hereby

5 certify that the above and foregoing contains a true and

6 correct transcription of all portions of evidence and other 7 proceedings requested in writing by counsel for the parties to

8 be included in this volume of the Reporter's Record in the

9 above-styled and -numbered cause, all of which occurred in 10 open court or in chambers and were reported by me.

11 I further certify that this Reporter's Record of the

12 proceedings truly and correctly reflects the exhibits, if any, 13 offered by the respective parties.

14 WITNESS MY OFFICIAL HAND on this, the 14th day

15 of September, 2015. 16

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18 Tonya Lebo, CSR #7891 Deputy Court Reporter

19 219th District Court Collin County, Texas

20 2708 Patriot Drive Melissa, Texas 75454

21 Telephone: (972)998-5878 E-mail: tmlebo.usa@gmail.com 22

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Tonya Lebo, CSR #7891

(972)998-5878