Eric Byron Crayton v. State
Opinion
ACCEPTED
03-14-00570-CR
5873430
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/30/2015 9:07:50 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00570-CR
ERIC BYRON CRAYTON § IN THE THIRD FILED IN 3rd COURT OF APPEALS
AUSTIN, TEXAS
VS. § DISTRICT 6/30/2015 COURT9:07:50
OF AM
JEFFREY D. KYLE
THE STATE OF TEXAS § APPEALS OF TEXAS Clerk
FIRST SUPPLEMENTAL MOTION TO SUPPLEMENT RECORD AND RESPONSE TO APPELLANT’S OBJECTION
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes the State of Texas, Appellee in the above-styled and -numbered cause, and moves the Court to order the preparation, certification and filing of a supplemental reporter’s record under Rule 34.6(d) of the Texas Rules of Appellate Procedure, or in the alternative to remand the cause to the trial court under 34.6(e)(3) of the Texas Rules of Appellate Procedure, and for good cause would show the following:
I.
The State has diligently pursued supplementation of the record from the
moment it discovered the omission. I discovered that the version of State’s Exhibit 73 on file with the Court of Appeals omitted relevant parts of the admitted exhibit on June 22, 2015. The State did not have notice or actual knowledge of the omission prior to June 22, 2015. The omitted material is relevant and important because every point of error raised by Appellant concerns the admission, contents or sufficiency of State’s Exhibit 73.
I called Appellant’s attorney and – upon being told he was out of the office until Wednesday – left a message explaining the issue. I subsequently spoke with him about the issue on Wednesday, June 24th. Although I tried to speak with the Court Reporter on June 24th and 25th, I learned that she was at a conference for the remainder of that week. On June 26, 2015, the State submitted a Motion to Order a Supplemental Reporter’s Record in cause 03-14-00570-CR. The State hereby incorporates that motion by reference in full as if set forth herein verbatim, including all statements, arguments and evidence from said motion. Motion, attached.
II.
Appellant has filed an objection to the State’s earlier motion, arguing that the State should “make use of the remedy provided in TEX. R. APP. P. 34.6(e)(3)” instead. Appellant’s Objection at 2. However, subsection (e) deals with inaccuracies in the record. See Tex. R. App. P. 34.6(e). The State seeks to supplement omitted material under Rule 34.6(d). Although Appellant apparently contends that the five minutes and 12 seconds of State’s Exhibit 73 currently on file with the Third Court is the complete version (see Appellant’s Objection at 2), as noted on the record, the actual exhibit entered at trial was much longer than five minutes and 12 seconds:
(State’s Exhibit 73 Published)
THE COURT: Can you get the volume up a little?
[State]: Your Honor, I’m sorry. I think we started in the middle of it there.
THE COURT: Oh, I see.
[State]: There is no conversation of any substance during the first ten minutes, so the State will be skipping ahead ten minutes. But it’s on the disk.
[Defense]: No objection. We don’t want the jury to fall asleep again.
IV R.R. at 146 (emphasis added).
Because the transcript already before the Court enables it to determine that it does not have the complete exhibit entered into evidence, the Court should order the Court Reporter to submit a supplemental record containing the full exhibit introduced into evidence. See Lopez v. State, 314 S.W.3d 70, 72 (Tex. App.— Waco 2010, no pet.) (Rule 34.6(d) grants appellate courts wide discretion to supplement the transcript or statement of facts so as to include omitted matter); see also Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim. App. 2003) (it is “the appealing party’s burden to ensure that the record on appeal is sufficient to resolve the issue he presents”). Alternatively, if by the time the Court proceeds on the instant motion such a record has already been submitted, the Court should allow the filing of the supplemental record containing the full version of State’s Exhibit 73 actually admitted at trial.
III.
Furthermore, if the Court does not obtain the supplemental record outright under 34.6(d), in the alternative it should remand the cause to the trial court under 34.6(e)(3) of the Rules of Appellate Procedure. See Amador v. State, 221 S.W.3d 666, 677 (Tex. Crim. App. 2007) (“In the present case, the State requested supplementation of the record. Thus, when a dispute arose over what and precisely how much the record should be supplemented, the court of appeals was mistaken to deny that request without also ordering the trial court to resolve the dispute”).
IV.
While Appellant stresses the fact that no further extensions will be granted to the State (Appellant’s Objection at 3), the State in its first motion made clear that it would submit its brief by the current deadline regardless of any supplementation. Motion at 1, 2 n.1. Supplementing the record under either Rule 34.6(d) or 34.6(e)(3) therefore has no effect on the State’s timetable to submit its brief, which will already be on file with the Court. Supplementing under 34.6(d) will occasion no delay. Alternatively, the Court may order a speedy determination of the issue before the trial court under Rule 34.6(e)(3); particularly in light of the clear record cited supra, the State is ready to resolve the issue before the trial court immediately, and the cause could conceivably be returned to the Court of Appeals before Appellant’s response brief would be due. In any event – due to the heavy
docket of cases before the appellate courts – the remand will not delay the consideration of Appellant’s appeal for an unreasonable amount of time; in reality, it will likely result in no delay whatsoever. See, e.g., Cause Numbers 03-14-00320- CR (State’s brief filed August 28, 2014, not yet submitted), 13-14-00088-CR (State’s brief filed August 20, 2014, to be submitted on briefs on July 15, 2015).
Though Appellant also emphasizes that the record has been on file eight months, the Court has recently remanded such a case in similar circumstances. See Smith v. State, 03-11-00597-CR, 2012 WL 3629792, at *1 (Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op., not designated for publication) (Court of Appeals abated for supplementation on August 23, 2012, more than eight months after the original reporter’s record had been filed with the Court on December 8, 2011); see also Lopez, 314 S.W.3d at 71-72 (after the appellate court issued its original opinion reversing the trial court, it allowed supplementation of the record over objection, and on rehearing affirmed the trial court).
V.
WHEREFORE, PREMISES CONSIDERED, the State’s counsel respectfully prays that this Honorable Court order the preparation, certification and filing of a supplemental record containing the full version (25 minutes and 58 seconds) of State’s Exhibit 73, or in the alternative, that it allow the filing of said supplemental record into the record on appeal if it has already been submitted to
the Court when the instant motion is heard and decided. Further, the State’s counsel alternatively prays that in the event the Court finds there is a “dispute” within the meaning of 34.6(e) of the Texas Rules of Appellate Procedure, that it submit such a dispute to the trial court for a speedy resolution. Finally, the State’s counsel prays for all further relief, both special and general, in law and in equity, to which it may be entitled.
Respectfully submitted,
/s/ Clayten Hearrell
Clayten Hearrell
SBN: 24059919
hearrc@co.comal.tx.us
Assistant District Attorney Comal Criminal District Attorney’s Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Ph: (830) 221-1300 / Fax: (830) 608-2008
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