John F. Seay v. State

Opinion

Order entered May 2, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00362-CR No. 05-18-00363-CR No. 05-18-00364-CR

JOHN F. SEAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F17-44837-P, F17-44838-P & F17-44846-P

ORDER Before the Court are pro se appellant’s April 26, 2019 motion seeking to supplement the

clerk’s records with copies of a motion to suppress evidence and the reporter’s record with a

copy of Defense Exhibit 1, April 25, 2019 “first” motion for extension of time to file his brief,

and April 22, 2019 motion to compel trial court counsel to “surrender the court case/work file

she created in representing the Appellant in trial court.”

In his motion to supplement the record, appellant alleges trial counsel filed a motion to

suppress during the hearing on the motion to suppress held on March 2, 2018. Nothing in the

record shows counsel filed such a document. Instead, the record shows appellant filed motions

to suppress evidence on October 2, 2017 and February 15, 2018. The motion to suppress appellant filed on October 2, 2017 references the cause numbers

of appellant’s cases and was intended to apply to all of them. The three clerk’s records in these

appeals all contain a copy of appellant’s October 2, 2017 motion to suppress evidence.

Similarly, the motion to suppress appellant filed on February 15, 2018 purports to reference all

of the cause numbers of appellant’s cases and apply to all of them. However, the motion

incorrectly lists the trial court cause number for cause number 05-18-00362-CR as “F1744836”

rather than “F17-44837.” Because the February 15, 2018 motion to suppress was not filed in

cause no. 05-18-00362-CR, the February 15, 2018 motion to suppress appears only in the clerk’s

records in cause nos. 05-18-00363-CR and 05-18-00364-CR.

A review of the reporter’s record from the March 2, 2018 hearing on the motion to

suppress shows Defense Exhibit 1 was used to cross-examine a State’s witness, but it was not

admitted into evidence.

We conclude the appellate record is complete as filed. Accordingly, appellant’s motion

to supplement the record is DENIED.

Regarding the motion to compel, by order dated December 3, 2018, the Court granted

appellant permission to represent himself and ordered his brief filed within thirty days. On

January 25, 2019 appellant filed a letter explaining that he was unable to file a brief because he

had been arrested in Arizona for violating parole and he had lost access to all of his legal

materials. By order entered February 6, 2019, the Court granted appellant an extension and

ordered his brief filed within thirty days. On February 21, 2019, appellant requested a second

extension. By order entered February 27, 2019, the Court granted appellant thirty days to file his

brief. On March 27, 2019, appellant filed a motion seeking a third extension on his brief and a

motion seeking to compel his former appellate counsel to “surrender a copy of entire appellate

–2– record.” By order dated April 1, 2019, the Court denied the motion to compel, but ordered the

Clerk of the Court to furnish appellant with a copy of the appellate record. The April 1, 2019

order also ordered appellant to file his brief within thirty days and cautioned him that the Court

would not grant any further extensions absent extenuating circumstances. Under the Court’s

order, appellant’s brief is due May 1, 2019.

Appellant’s motion to compel trial counsel to surrender her case file is untimely.

Appellant’s brief is due after three extensions. He has shown no reason why he needs additional

materials from his former trial counsel. This Court’s review is limited to the appellate record

which the Clerk of the Court has provided to appellant. The Court DENIES appellant’s motion

to compel trial counsel to surrender her case file.

Regarding appellant’s motion to extend the time to file his brief, we note that the motion

appears to be have been written in February 2019, was filed with the district clerk on April 3,

2019, and not filed with the Clerk of this Court until April 25, 2019. It is a duplicate of

appellant’s February 21, 2019 motion for extension. Because the Court already granted relief on

the motion in its February 27, 2019 order, we DENY AS MOOT appellant’s April 25, 2019

motion for extension of time to file his brief.

Appellant’s brief is overdue. In the interest of justice, the Court extends the time to file

appellant’s brief until May 31, 2019. If appellant’s brief is not filed by May 31, 2019, the Court

will order these cases submitted without appellant’s brief.

/s/ LANA MYERS JUSTICE

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