Jimmy Don Price v. State

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-11-00592-CR

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JIMMY DON PRICE, Appellant V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 411th District Court Polk County, Texas

Trial Cause No. 21122

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ORDER

On February 21, 2013, we abated the appeal to provide the appellant with an opportunity to investigate the professional licensing status of a testifying expert witness. On March 27, 2013, appellant filed a motion to remand for a hearing “to provide for the record” the extent to which the witness complied with the terms of a disciplinary order of the board regulating the witness’s profession. He provides no authority permitting an evidentiary hearing under these circumstances. The supplementation rules cannot be used to create a new record. Berry v. State, 995

2

S.W.2d 701, 702 n.5 (Tex. Crim. App. 1999); see also Tex. R. App. P. 34.5(c); 34.6(d). A new record may be created when the trial court erroneously withholds information necessary to evaluate a defendant’s claim on appeal, but “if the error in question is subject to the usual rules of procedural default, then it must have been preserved by objection.” LaPointe v. State, 225 S.W.3d 513, 522 (Tex. Crim. App. 2007); see also Tex. R. App. P. 44.4. The motion for remand is denied.

ORDER ENTERED April 11, 2013.

PER CURIAM

Before McKeithen, C.J., Kreger and Horton, JJ.