Jeffery Allen Brochu v. State

• Court: Court of Appeals of Texas
• Decided: November 10, 2015
• Docket: 07-15-00295-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-15-00295-CR ________________________

JEFFERY ALLEN BROCHU, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 66th District Court Hill County, Texas Trial Court No. 37,326; Honorable Lee Harris, Presiding

November 10, 2015

ORDER DIRECTING FILING OF SUPPLEMENTAL CLERK’S RECORD Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Following a not guilty plea, Appellant, Jeffery Allen Brochu, was convicted by a

jury of aggravated robbery and sentenced to twenty years confinement. 1 The clerk’s

record and reporter’s record have both been filed. On October 15, 2015, Appellant filed

a Motion to Supplement Record seeking to have the trial court clerk supplement the

1 TEX. PENAL CODE ANN. § 29.03(a) (West 2011). record to include items originally requested in his Designation of Record on Appeal, filed

pursuant to Rule 34.5(a)(13) of the Texas Rules of Appellate Procedure, that were not

included in the record as filed with this court. Appellant’s original request for “[a]ny

subpoenas or requests for subpoenas” has now been refined to request “[a]ll witness

subpoenas issued for May 18th and 19th, 2015” and (2) “[a]ny and all subpoenas issued

for Joel Hawkins.”

By letter dated October 28, 2015, Appellant’s motion was denied without

prejudice to refiling once he demonstrated the requested but omitted items were

“relevant.” TEX. R. APP. P. 34.5(c). Now pending before this court is Appellant’s 2nd

Motion to Supplement Record and Motion for Extension of Time to File Appellant’s Brief

on Appeal.

APPELLANT’S 2ND MOTION TO SUPPLEMENT RECORD

Appellate counsel was not trial counsel. By his motion, Appellant notes that the

State relied on the law of parties but failed to call a co-conspirator as a witness at trial.

He adds that the current record is silent on the status and location of the co-defendant

during trial. Appellant asserts that the items missing from the record may provide “fertile

ground for an appeal.” He explains that three investigators identified witnesses, some

who appeared during pretrial hearings, but who were not subpoenaed for trial. The

omitted items, Appellant urges, may prove relevant to a discussion on the law of parties.

In the interest of justice and to avoid further delays in this appeal, this court

orders Angelia Orr, District Clerk of the 66th Judicial District Court, to supplement the

clerk’s record with the items requested by Appellant. The supplemental clerk’s record

2 shall be filed in this court on or before Tuesday, November 24, 2015. See Crown Life

Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121-22 (Tex. 1991); Gay v. Hillsboro,

545 S.W.2d 765, 766 (Tex. 1977).

MOTION FOR EXTENSION OF TIME TO FILE APPELLANT’S BRIEF ON APPEAL

Pursuant to Rule 38.6(d) of the Texas Rules of Appellate Procedure, this court

may modify the time for filing a brief if a motion complying with Rule 10.5(b) is filed.

Rule 10.5(b) requires an extension motion to provide the filing deadline, the length of

the extension sought, a reasonable explanation for the extension, and the number of

previous extensions granted.

Appellant’s brief was originally due to be filed on October 19, 2015. By letter

dated October 26, 2015, this court advised Appellant that his brief was overdue and the

deadline was extended to November 5, 2015. By his motion for extension of time,

Appellant explains that his request is based on challenging the completeness of the

clerk’s record. He seeks to have his briefing deadline suspended until the issue of the

incomplete record is resolved. While we grant the motion, we do so only for a period of

thirty days from the date the supplemental clerk’s record is filed. Except as otherwise

provided herein, Appellant’s request to suspend his briefing deadline is denied.

It is so ordered.

Per Curiam

Do not publish.