in the Matter of David Christopher Hesse

Opinion

ACCEPTED 01-15-00401-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 7/31/2015 3:32:54 PM CHRISTOPHER PRINE CLERK

NO. 01-15-00401-CR

IN THE FILED IN FIRST COURT OF APPEALS 1st COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON, TEXAS 7/31/2015 3:32:54 PM CHRISTOPHER A. PRINE Clerk IN THE MATTER OF DAVID CHRISTOPHER HESSE, Appellant

SUPPLEMENTAL MOTION TO STRIKE SECOND SUPPLEMENTAL CLERK’S RECORD

TO THE HONORABLE JUDGES OF SAID COURT:

Appellant, David Christopher Hesse, supplements his prior-filed Motion

to Strike the Second Supplemental Clerk’s Record, which is incorporated

herein by reference, and shows:

1. On July 30, 2015, the District Clerk of Fort Bend County filed a

letter with this Court. In this letter, the District Clerk requests this Court to

“[w]ithdraw from the Clerk’s Record submitted May 14, 2015 page numbers

6 – 11 and replace with the documents included in the Second Supplemental

Record as page numbers 4 – 9.”

2. Hesse objects to that request and asks that this Court not grant the

District Clerk’s request to withdraw page 6 – 11 (specifically pages 8 – 11) from

1 the Clerk’s Record.

3. As the District Clerk acknowledges in her letter, the February 25,

2015, Judgment of Contempt (C.R. pp. 9 – 11) did not have any annotations

on it when it was scanned by her Office on February 27, 2015. And the District

Clerk’s letter is silent to the fact that when her Office prepared the Clerk’s

Record and submitted it on May 14, 2015, the annotated Judgment was not to

be found among the papers of the case.

4. If the Court grants the District Clerk’s request and withdraws page

numbers 6 – 11 of the Clerk’s Record and replaces those with the documents

included in the Second Supplemental Record as page numbers 4 – 9” the

Record would stand with only the “annotated” February 25, 2015 Judgment.

That would make the record reflect that the annotation, “ABANDON IN

FAVOR OF 2/26/2015 JUDGMENT,” signed Lee Duggan, Jr. JUDGE” was on

the document on February 26, 2015 when it was filed at 2:32 p.m..

5. The verity of the Clerk’s Record would, thereby, be destroyed.1

This should not be allowed to happen.

6. Interestingly, the District Clerk does not tell this Court when her

Office scanned the “annotated” judgment. This information is available, if

1 … Sumrall v. Russell, 262 S.W. 507 (Tex. Civ. App. – El Paso 1924, writ ref’d).

2 nowhere else, in the metadata of that file on the District Clerk’s server. The

District Clerk also does not advise what happened to the original barcode

affixed to the document at pages 6 – 11 of the Clerk’s Record.

7. More interesting is the fact that the State, in its Response to

Contemnor’s Motion to Quash (C.R. pp. 223 – 251) refers only to the February

26, 2015 Judgment. The State’s Response makes no reference to the February

25, 2015 Judgment.

8. On April 15, 2015, Hesse filed a verified, Amended Special Plea of

Double Jeopardy.2 In that Amended Special Plea, Hesse attached both

Judgments in support of that Amended Special Plea. The State did not file a

Response to that Amended Special Plea. The State’s silence on that point can

be taken as a confession that Hesse’s allegation of two separate judgments was

true;3 and that, as of April 15, 2015, the annotation had not been added to the

February 25, 2015 Judgment.

9. On June 2, 2015, the Court of Criminal Appeals stayed any further

proceedings in the underlying cause (No. 12-DCR-061186). See Exhibit No.

1, attached hereto and incorporated by reference for all purposes.

2 … Supp. C.R. p. 4. 3 … See, e.g., Moree v. State, 183 S.W.2d 166, 169 (Tex. Crim. App. 1944).

3 10. According to the information that the District Clerk provided to

the undersigned counsel, the physical file in Docket No. 12-DCR-061186 was

sent to the 240TH Judicial District Court on June 8, 2015. The District Clerk

does not know who requested the file be sent to the 240TH Judicial District

Court.

11. Again, according to the information that the District Clerk

provided to the undersigned counsel, after June 8, 2015, someone from the

Fort Bend County District Attorney’s Office came to the District Clerk’s Office

and requested that a supplemental Clerk’s Record be prepared and filed, to

show both Judgment of Contempt.

12. To quote Desi Arnaz, “Lucy, you’ve got some ‘splaining to do!”

Well, someone has “some ‘splaining to do” in this case. There needs to be a

hearing wherein all of these facts can be developed, with witnesses being

placed under oath and Findings of Fact and Conclusions of Law filed with this

13. Unless and until that happens, this Court should not grant the

District Clerk’s requested relief. At the very least, this Court should strike the

Second Supplemental Clerk’s Record and conduct or order a hearing on the

annotation, when it was added, by whom, etc.. This Court should grant Hesse

4 general relief.

Respectfully submitted,

/s/ L.T. “Butch” Bradt L.T. “Butch” Bradt #02841600 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478-3500 (281) 201-0700 Fax: (281) 201-1202 ltbradt@flash.net

Michael Mowla #24048680 445 E. FM 1382 #3-718 Cedar Hill, Texas 75104 (972) 795-2401 Fax: (972) 692-6636 michael@mowlalaw.com Attorneys for Appellant, David Christopher Hesse

CERTIFICATE OF SERVICE

I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P., certify that a true and correct copy of the foregoing Brief was delivered to:

Gail Kikawa McConnell, Ass’t District Attorney 301 Jackson Street, Room 101 Richmond, TX 77469 Gail.McConnell@fortbendcountytx.gov

On July 31, 2015.

/s/ L.T. “Butch” Bradt L.T. “Butch” Bradt

5 Exhibit 1