Jose David Gutierrez v. State

Opinion

Order entered September 25, 2020

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-19-00560-CR

JOSE DAVID GUTIERREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F16-23201-H

ORDER

On September 22, 2020, appellant filed a motion for extension of time to file

his brief. Two days later, he tendered his brief and an affidavit executed September

22, 2020. The affidavit, executed by appellant’s wife, states that she was present

and prepared to testify at trial but was not called as a witness. The affidavit then

details what her testimony would have been if she had been called to testify.

An appellate court may not consider factual assertions that are outside the

record, and a party cannot circumvent this prohibition by submitting an affidavit for the first time on appeal. Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim.

App. 2004); Moore v. State, 999 S.W.2d 385, 398 (Tex. Crim. App. 1999);

Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996). An appellate

court’s review of the record itself is generally limited to the evidence before the

trial court at the time of the trial court’s ruling. Dragoo v. State, 96 S.W.3d 308,

313 (Tex. Crim. App. 2003).

The affidavit appellant filed with this Court was not evidence at trial, nor

was it part of the reporter’s or clerk’s record in this case. Because it is not properly

before the Court, we STRIKE the affidavit.

We GRANT appellant’s motion and ORDER the brief received by the

Court on September 24, 2020 filed as of the date of this order.

The State’s brief is DUE on October 26, 2020.

/s/ BILL PEDERSEN, III JUSTICE