Farris v. State

712 S.W.2d 512, 1986 Tex. Crim. App. LEXIS 758

• Court: Court of Criminal Appeals of Texas
• Decided: June 11, 1986
• Docket: 1016-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of aggravated rape. Punishment was assessed at confinement for life in the Texas Department of Corrections. The Court of Appeals, relying upon testimony provided in a supplement to the appellate record, reversed the conviction because the State failed to disclose promises made to an accomplice regarding leniency in exchange for testimony. Farris v. State, 676 S.W.2d 674 (Tex.App. — Houston [1st] 1984). We granted the State’s petition for discretionary review on five grounds for review. However, we will dispose of the case on the two grounds which pertain to supplementation of the record. We will reverse and remand.

At appellant’s trial, Timothy Huffman testified against appellant. Huffman was an accomplice; therefore, the appellant sought disclosure of any promises of leniency made to Huffman in exchange for his testimony. The following facts, explicated in the opinion below, were disclosed to the trial judge and the jury:

“Prior to Huffman’s testimony, the assistant district attorney disclosed to the trial court, out of the presence of the jury, that the only agreement with the witness had been to drop the aggravated kidnapping and aggravated sexual abuse charges, to allow him to plead guilty to the aggravated rape charge, and to notify the judge who was hearing the case that Huffman had been cooperative and truthful in testifying against appellant. Huffman’s attorney also testified before the judge, out of the jury’s hearing, that the state had made no promises regarding recommendations for leniency. Huffman testified before the jury that he had received no promises of leniency.” Farris, supra at 675.

Appellant was convicted and gave notice of appeal. On December 16, 1983, the record was filed in the Court of Appeals.

Several months after the record had been filed with the Court of Appeals, appellant discovered that, in a hearing on a motion for new trial in Huffman’s case, testimony was presented which arguably showed that the State did not disclose to appellant certain promises of leniency made to Huffman in exchange for Huffman’s testimony at appellant’s trial. See Huffman v. State, 676 S.W.2d 677 (Tex.App. — Houston [1st] 1984), pet. ref’d. Appellant sought to include a supplemental record containing this new testimony from Huffman’s case with appellant’s original record, which was already filed with the Court of Appeals.

On April 25, 1984, appellant filed a motion with the trial court seeking to supplement the record and mailed a copy of that motion to the State. The trial court granted the motion on the same day. On April 26, the State waived its right to notice of completion of the supplementation. On May 2, the trial court approved the supplemental record, having found that no objections had been filed within five days after notice of completion of the record. On May 9, the supplemental record was filed in the Court of Appeals.

The State presents two grounds for review regarding supplementation of the record. First, the State argues that the trial court lacked authority to supplement the record once the original record had been filed in the Court of Appeals. Second, the State argues that, even if the trial court properly had authority, a record may not be supplemented by testimony from a separate and different case.

1. Did the trial court lack the authority to supplement the record after the original record had been filed with the Court of Appeals?

A trial court’s power to act in a given case ends when the appellate record is filed in the court of appeals, except for matters concerning bond. Duncan v. Evans, 653 S.W.2d 38 (Tex.Cr.App.1983); art. 44.11 V.A.C.C.P. Therefore, any attempt by a trial court to supplement a record after the appellate record is filed in the court of appeals is invalid. Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975).¹ Such a supplementation is invalid because the trial court lacks the authority to act once the appellate record is filed in the court of appeals. Duncan v. Evans, supra; Aquirre v. State, 680 S.W.2d 567 (Tex.App. — Corpus Christi 1984). See also Guzman, supra.

In the instant case, the trial court’s authority to act in appellant’s cause concluded on December 16, 1983, when the record of appellant’s trial was filed in the First Court of Appeals. The trial court had no authority to approve the supplemental record presented on April 25, 1984. The supplemental record, therefore, was not properly before the Court of Appeals.²

An appellate court may not rely upon an invalid supplement to a record in deciding a defendant’s appeal; an appellate court is limited to those portions of the record which have been properly approved. Lynch v. State, 502 S.W.2d 740 (Tex.Cr.App.1973). See also Evans v. State, 622 S.W.2d 866 (Tex.Cr.App.1981); Hale v. State, 509 S.W.2d 637 (Tex.Cr.App.1974). Cf. Davis, supra; Cleuris v. State, 415 S.W.2d 654 (Tex.Cr.App.1965). However, reliance upon an invalid record is harmless if the appellate court could have cured the error by correctly supplementing the record on its own motion. Armstead v. State, 692 S.W.2d 99 (Tex.Cr.App.1985).

In Armstead, supra, a court of appeals relied upon an invalid supplement to the record. We found no reversible error and refused the defendant’s petition for discretionary review in light of the distinction made by the court of appeals:

“Since we conclude that we could still order such a hearing even now upon our own motion, we accept the supplemental record as prepared rather than indulging in a wasteful use of judicial time by ordering the trial court to conduct another hearing, at which the same exhibits and same testimony would be received, and have that record filed with us. If we could not now by our own order cure what may have been original error by the trial court conducting such hearing without proper order from this Court, then a different question would be presented.” Armstead, supra at 100, quoting Armstead v. State, 677 S.W.2d 266, 269 (Tex.App. — El Paso 1984).

In the instant case, the Court of Appeals relied upon an invalid supplement to the record. If, upon remand, the Court of Appeals could cure this error by ordering the testimony from the hearing on Huffman’s motion for new trial to be correctly included in an identical supplement, then the error would be harmless. Therefore, we must address the remaining ground of review in which the State argues that testimony from a separate cause can not be used to supplement a record.

2. Can testimony from a separate cause be used to supplement an appellate record?

Article 40.09, sec. 7, supra, grants a trial court the limited discretion to supplement a record “to make the record speak the truth, for any reason_” See Guzman, supra. The “record” refers to all matters developed at the trial which have been designated by the parties for inclusion in the record,

“but shall always include, whether designated or not, copies of the material pleadings, material docket entries made by the court, the court’s charges, the jury’s verdicts, the judgment or any order revoking probation, the motion or amended motion for new trial, the notice of appeal, any appeal bond, copies of all exhibits on file, other than physical exhibits or documents of unusually large bulk or weight, and all formal bills of exception. The matter so prepared shall be assembled and shall constitute the record on appeal.” Art. 40.09, sec. 1, V.A.C.C.P.

New evidence, which has been developed subsequent to any proceedings surrounding a defendant’s trial, does not constitute part of a defendant’s “record” within the meaning of Article 40.09, sec. 7, supra. Therefore, a defendant can use documents or testimony from a separate case to supplement his appellate record only if the documents or testimony in the separate case originally could have been included in the record on appeal. Bradley v. State, 608 S.W.2d 652 (Tex.Cr.App.1980).

In Bradley, supra, a defendant’s probation was revoked after the trial judge took judicial notice of the record of a prior trial involving the same defendant which was held before the same trial judge. We abated defendant’s appeal to allow the record to be supplemented by a transcript of that prior trial. The defendant argued that use of the record of a prior trial constituted “new evidence” that had not been developed in the revocation hearing. We rejected the defendant’s argument and held that the trial judge, by taking judicial notice of the prior trial, intended to include “all of the documents and papers and pleadings and participants and all that” from the prior trial in the record of the revocation hearing.

In the instant case, appellant requested the trial court to supplement the record with testimony that arose in a hearing on Huffman’s motion for new trial. This testimony was not developed in proceedings surrounding appellant’s trial. Nor did the trial court take judicial notice of the hearing on Huffman’s motion for new trial during appellant’s trial. (Indeed, the trial court could not have taken judicial notice of that hearing because it had not yet taken place.) This is not the sort of supplementation that makes the record of appellant’s trial “speak the truth.” The evidence developed as a result of Huffman’s motion for new trial was new evidence which did not arise during any proceeding surrounding appellant’s trial and should not be used to supplement the appellate record in the instant case.³ Therefore, we find that the Court of Appeals could not have ordered the trial court to supplement the record with the testimony developed at Huffman’s motion for new trial. Under these circumstances, the Court of Appeals’ reliance upon the invalid supplemental record can not be considered harmless.⁴

We reverse the judgment of the Court of Appeals and remand this cause to that Court for consideration of appellant’s remaining grounds of error.

TEAGUE, J. dissents.

1 . This Court acknowledged in Guzman, supra, that we had used an invalid supplemental record, which was untimely filed, in deciding Davis v. State, 499 S.W.2d 303 (Tex.Cr.App.1973). We indicated that the use of such invalid records strains the natural construction of the appellate rules which allow a supplemental record to make the record “speak the truth."

2 . This does not mean that a trial court will never have the authority to supplement a record once the original record has been filed with the appellate court. Art. 40.09, sec. 7, V.A.C.C.P., allows a defendant or the State to request that the trial court supplement the appellate record, or the trial court to supplement the record on its own motion. It also allows this Court or the court of appeals to order the trial court to supplement the record. However, once the original record has been filed with the appellate court, the trial court can only reacquire authority to supplement a record if the appellate court abates the appeal See Duncan, supra. By abating the appeal, the appellate court returns authority to the trial court. “After receipt of the appellate court’s mandate of abatement, the trial court still has control over the case until the supplemental record again reaches the appellate court.” Duncan, supra, quoting 26 Tex.Jur.3d, Criminal Law, Section 4195, p. 533.

In the instant case, appellant could have asked the First Court of Appeals to abate his appeal so that the trial court could supplement the record. The Court of Appeals also might have abated the appeal on its own motion and ordered the, trial court to supplement the record. However, neither action was taken.

3 . Normally, this sort of newly available evidence is presented to an appellate court in one of two ways. First, the evidence may have developed during a hearing on defendant’s motion for new trial. The evidence would then be considered part of the record because it evolved from a defendant’s trial. Second, the evidence may have become available in a post conviction writ of habeas corpus situation. The evidence then would be developed in a hearing on a writ of habeas corpus. Cf. Ex parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983) (use of writ of habeas corpus inappropriate remedy for newly discovered evidence). Both of these proceedings allow the trial court an opportunity to either order a new trial or recommend that this Court order a new trial. The trial court does not have an opportunity to make such an order or recommendation when supplementing the record.

In the instant case, appellant did not learn of the new evidence until after the time for a motion for new trial had expired. Appellant, however, still has a remedy through a post-conviction writ of habeas corpus. Although some time delay may result therefrom, our rules do not allow insertion of such new evidence into the appellate review process. These rules are necessary to prevent unnecessary delay. See the new Texas Rules of Appellate Procedure, Rule 55(b), promulgated April 10, 1986, effective September 1, 1986.

4 . Even if supplementation had been possible in this case, we are not convinced that the new hearing would result in presentation of the same testimony without objection and the development of the same record. The supplemental record in the instant case does not involve the simple unchallenged introduction of court documents, as was present in Armstead, supra.