Bohannan, Michael Wayne

• Court: Texas Supreme Court
• Decided: May 18, 2015
• Docket: PD-0347-15
• Status: Published

Opinion

NO. PD-0347-15 COURT OF CRIMINAL APPEALS

IN THE MAY 04 2015 COURT OF CRIMINAL APPEALS Abel Acosta, Clerk AUSTIN, TEXAS

FILED IN MICHAEL WAYNE BOHANNAN COURT OF CRIMINAL APPEALS v. NAY 04 2015 THE STATE OF TEXAS Abel Acosta, Clerk.

From Appeal No. 09-13-00090-CR

TRIAL CAUSE NO. 12-10-10953-CR

Montgomery County

PETITIONER'S MOTION TO SUPPLEMENT THE APPELLATE RECORD

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Petitioner Bohannan, pro se, and moves the Court

for an order to the trial, court clerk to supplement the appellate

record. In support thereof, would show the following:

HISTORY

On November 21, 2013, the appellate court declined to

consider Bohannan's pro se Motion to Intervene and informed him

the court would not even consider his pro se submissions while

he was being represented by imposed counsel. On October 29, 2014,

the appellate court handed down its Memorandum Opinion,.and

imposed counsel notified Bohannan of same on November 4, 2014.

By November 17, 2014 letter, counsel informed Bohannan that his

imposition had ceased in the appeal. By letters dated December 5, 2014, Bohannan requested the trial court clerk and court

reporter supplement the appellate record, detailing the items

needed to be included in those supplements, so the court would

have an accurate and complete record for review when it

considered Bohannan's rehearing request. Bohannan forwarded

copies of those.letters to the appellate court clerk, on December

5th, as well.

On December 12, 2014, under the prison mailbox rule, Bohannan

filed his motion for rehearing, wherein he noted the attempts he

was making to have the appellate record supplemented.

On December 22, 2014, having received no response from

either the trial court clerk or reporter, Bohannan wrote them

again, providing them a second copy of his original December 5th

request.

On January 8, 2015, the appellate court overruled Bohannan's

rehearing motion.

By letter of January 12, 2015, the reporter informed Bohannan

there was no hearing on the date he had requested a transcript

for. Realizing he had made a typographical error, Bohannan wrote

the reporter back on January 16, 2015, informing her of the

correct date.

On February 3, 2015, Bohannan again wrote the trial court

clerk requesting the supplemental clerk's record be filed.

On February 7, 2015, Bohannan recevied a letter from the

reporter informing Bohannan she had "been out of the country"

- 2 - but would prepare and file the requested supplemental reporter's

record.

On February 13, 2015, under the prison mailbox rule, Bohannan

filed his Rule 34.5(c)(1) motion to supplement the appellate record in the appellate court.

On February 20, 2015, without ruling on Bohannan's motion to

supplement, the appellate court overruled Bohannan's motion for

rehearing en banc. Later that same day, the appellate clerk filed

the supplemental reporter's record.

As of the date of this motion, the trial court clerk has

continued to refuse to produce the supplemental clerk's record.

ARGUMENT

Bohannan has repeatedly requested the trial court clerk

supplement the appellate record, pursuant to Fed.R.App.Proc.

34.5(c)(1), detailing the limited records needed. Despite those requests, the clerk has refused to do so. As such., Bohannan is

forced to have to move this Court to order production of the

withheld records.

Bohannan has been very careful to limit his supplemental

requests to only those withheld records relevant to the issues

before the Court.

Bohannan has raised claims involving his being denied the

right of self-representation, by the trial court, and that court's

refusal to rule on his pro se motions. !

- 3 - The appellate court relied upon an October 2, 2012 letter

from Bohannan to the trial court, with a stamped October 30, 2012

file date upon it* in denying Bohannan's claims; Opinion @ 14;

CR 14-19.

Bohannan requested the following records from the trial court

clerk:

1) Criminal Notes from Cause No. 11-04-04462-CR; 2) Criminal Notes from Cause No. 12-10-10953-CR; 3) letter and cover sheet to clerk filed on October 9, 2012, in Cause No. 11-04-04462-CR; and 4) letter filed by the trial court on October 30, 2012 in Cause No. 11-04-04462-CR.

These records prove that the record the appellate court relied

upon to deny Bohannan's claims was (1) filed in a?, cause that was

not before the court on appeal and (2) that the letter had been

fraudulently altered by someone in the trial court clerk's office.

II

right of self-representation in this appeal by Judge Seller's

March 20. 2014 refusal to allow imposed appellate counsel to

withdraw from this appeal. The appellate court did not address

Bohannan's timely appeal of that March 20th Order.

Bohannan requested the following records from the trial

court clerk.:

1) March 12, 2014 Motion To Withdraw; 2) March 20, 2014 Order denying Motion To Withdraw; 3) Trial court's notice/certification of Bohannan1s right to appeal the March 20, 2014 Order;

- 4 - 4) April 18, 2014 Notice of Appeal (filed on April 24th); and 5) June 5, 2014 letter to Susie Herman, Clerk, inquiring about the status of the appeal of the March 20th Order.

These records prove the trial .court denied Bohannan's request to

represent himself in this appeal, after imposed counsel informed

that court that Bohannan had asserted that right; and they will

shiow that Bohannan timely appealed that denial,. The records will

show that the trial court failed to notify the appellate court of

that appeal and/or that the appellate court failed to rule on

Bohannan's appeal of that denial.

CONCLUSION

The trial court clerk's refusal to produce the requested

supplemental records have, and will continue to, result in the

appellate courts making their determinations on an incomplete and

fraudulently altered record.

WHEREFORE, PREMISES CONSIDERED, Bohannan prays this Honorable

Court grant this motion and order the trial court clerk to

promptly supplement the appellate record with those records

requested in Bohannan's December 5, 2014 letter, and that this Court delay consideration of Bohannan's request for PDR until that supplemental record has been obtained and considered.

Respectfully submitted,

5 - Michael W. Bohannan #1841746

9601 Spur 591 Amarillo, Texas 79107-9606

806-381-7080

UNSWORN DECLARATION

I, Michael Bohannan, being presently imprisoned in Potter

County, Texas, and under penalty of perjury, do hereby affirm

that the foregoing facts are true and correct.

on this the 2-~lfh day of Apr* I , 2015.

Petitioner/Affiant

CERTIFICATE OF MAILING AND SERVICE

County, Texas, and. under penalty of perjury, do hereby affirm

that I have delivered a copy, of this motion, to a TDCJ. official,

first-class postage prepaid, for mailing to:

Clerk of the Court

Texas Court of Criminal Appeals P.O. Box 12308, Capitol Station Austin, Texas 787/11-2308

William Delmore, Asst. Dist. Att'y

207 W. Phillips Street Conroe, Texas 77301

- 6 - State Prosecuting Attorney P.O. Box 12405, Capitol Station Austin, Texas 78 711-2405

on this the 27/-^ day of (\t> r. \ , 2015,

- 7 -