Randall Bolivar v. State

Opinion

STATE OF TEXAS COUNTY OF WALKER CAUSE NO. 13-1

I, Randall Bolivar, presently incarcerated in the TDCO-CID, O.B. Ellis Unit, located in the County of Walker, the State of Texas, declare under penalty of perjury pursuant to 28 USC § 1746(1) that all statements made herewith are true, correct and complete according to Declarant's own belief's and knowledge. Since April 2015 I have been personally reviewing the Reporter's Record provided to me by Ms. Pam Esquivel, Official Court Reporter for the 107TH District Court. My review of the Reporter's Record compared with the portions of the Clerk's Record provided, and my own personal knowledge of facts, have found the Reporter's Record on appeal, filed in the THIRTEENTH COURT OF APPEALS and provided to Appellant/ Declarant, to be both INACCURATE AND INCOMPLETE. Below is a nonexhaustive list of the inaccuracies which I have been able to positively identify/locate: PROOF DF CLAIM 1 : Vol.4 2 p. 3; The Reporter did .not include-that attorney Alfredo Padilla actually stated, "Defense is ready. What's the state's announcement, Your Honor?" The Reporter's Record is devoid of the first portion, "Defense is ready." This critical statement will deprive Appellant the ability to raise a proper claim pursuant to Article 32.01,-TCCP, and a constitutional Speedy Trial claim. PROOF DF CLAIM 2: The.Court's Docket Sheet shows entries for September 24, 2009 for a "CHAMBERS CONFERENCE" where a "joint mtn for continuance" was presented without the knowledge or consent of Appellant. This will affect Appellant ability to prosecute his Art. 32.01 and Speedy Trial claims. PROOF OF CLAIM 3: The Court's Docket Sheet shows an entry'for January 14, 2010 for a "CHAMBERS CONFERENCE" wherein "Robert Garza substiuting in for court appt atty Alfredo Padilla, who is released from his appt." without the knowledge or consent of Appellant. Affecting his ability to prosecute his claims of constructive denial of counsel and ineffective assistance of counsel.

PROOF OF CLAIM 4: Vol. 3 p. 3; Attorney Robert Garza states: "... We had a motions hearing this morning for pretrial, and I understand my client was not brought from the — he's in Willacy County jail. They put him over there, and he's not here. And since the last time we appeared for arraignment, he was also not brought over. This is the second time that he has not been brought over, Dudge, and I need him..." Robert Garza is advising the Court of a previous hearing wherein Applleqt., was not--*.

Page 1 of 3 NOV 10 2015

13TH COURT OF APPEALS brought to court. This is the "CHAMBERS CONFERENCE" referenced in PROOF OF CLAIM 3. The record will show that motions were heard and ruled upon without the knowledge or consent of Appellant. PRDDF OF CLAIM 5: The Court's Docket Sheet shows an entry on April 7. 2010 for a "T.C. w/ROBERT GARZA AND OSCAR GUZMAN" which is shorthand for telephone conference. PROOF OF CLAIM 6: Vol. 7 p.1; Judge Pate did not preside over this hearing, as' he was not yet assigned to this case. PROOF OF CLAIM 7: Vol. B p.6; MOTION TO HAVE OFFICIAL COURT REPORTER MAKE A FULL RECP.RD IS GRANTED BY TRIAL COURT.

PROOF OF CLAIM 8: Vol. 12 p. 1; Judge Pate did not preside over this hearing. PROOF OF CLAIM 9: Vol. 19 pg. 15-16; Attorney Phillip Cowen states: "So there are some problems with the record up to this point..." and "I don't have it in the record." These statements were references to the missing transcriptions of hearings held,7G)hich''precluded: Mr. Cowen from raising the Speedy Trial claims on appeal. PROOF OF CLAIM 10: Vol. 21 p. 63; Ex parte or Chambers conference which was not recorded or transcribed.

PROOF OF CLAIM 11: Vol. 22 p.7; Judge Pate states: "... the most important person in the courtroom, that's Pam Esquivel. She's on my left, to your right. She's the court reporter. Her job is to take down all the words that are said in court here today." That would include bench conferences and the like.

PROOF OF CLAIM 12: Vol. 22 pg. 64-65; There is an entry of "(Off the record *• discussion at the bench)" which was not transcibed. PROOF" OF CLAIM 13: Vol. 23 p. 15; During direct examination of State Witness Rolando Garza, the prosecutor asks if the witness sees the same person who was with him on the night of the alleged crime. Witness responds: "A. He's over there. He's wearing the gray suit (pointing). Q. In the middle? A. Yes, sir, in the middle between Rebecca RuBane and the other attorney. MR. YZAGUIRRE: We'll object to the :.:=.-". •• identification. Mr. Gilman basically led him into pointing out the person. THE COURT: Overrruled. The Court takes notice he identified the defendant before. MR. YZAGUIRRE: Just for the record, Your- Honor, there's two people sitting at this table wearing suits." The Reporter failed to include that Mr. Yzaguirre actually said ^tooTpeople sitting at this table wearing gray suits." Both Mr. Yzaguirre and Appellant were wearing gray suits and sitting side-by-side. Additionally, Mr. Cordova was also seated at the same table making three people wearing suits, and that is why Mr. Yzaguirre stressed the two gray suits issue. PROOF OF CLAIM 14:Vol. 24 p. 9; "(Spanish spoken)" PROOF OF CLAIM 15:Vol. 2h p. 17; "(Spanish Spoken)" PROOF OF CLAIM 16: Vol. 24 P 19; "(Spanish Spoken)" PROOF OF CLAIM 17: Vol. 24 P 51; "(Spanish Spoken)" PROOF OF CLAIM 18: Vol. 24 P 59; "(Spanish Spoken)" PROOF OF CLAIM 19: Vol. 24 P 78; "(Spanish Spoken)" PROOF OF CLAIM 20: Vol. 24 P 79; "(Spanish Spoken)" PROOF OF CLAIM 21: Vol. 24 p. B7; Reporter transcribed "Alibran's house," when it should be "Malibran's house."

PROOF OF CLAIM 22: Vol. 24 p. 95; Reporter failed or refused to transcribe the bench conference, and instead entered "(Off the record discussion at the bench)".

PROOF" OF CLAIM 23: Vol. 24 p. 99; Ms. Rubane notified the Court: "Just that Judge Euresti before he recused himself had ordered all the witness statements transcribed."

Page 2 of 3 The transcribing was to be done by the State. Since the witnesses were called to testify, the Defense was entitled to a copy which was also designated for the record by Appellant with the District Clerk. PROOF OF CLAIM 24: Vol. 24 pg. 170-171; Argument by counsel regarding untranscribed statements of Eric Herrera and Stephanie Lee Lopez, as well as phone calls between the same.

PROOF OF CLAIM 25: Vol. 24 p.187 "(Off the record discussion at the bench)" PROOF OF CLAIM 26: Vol. 24 p.245 "(Off the record discussion at the bench)" PROOF OF CLAIM 27: Vol. 24 p.292 "(Off the'record discussion at the bench)" PRDOF GF CLAIM 2B: Vol. 24 p.353 "(Off the record discussion at the bench)" PROOF OF CLAIM 29: Vol. 25 pg. 108-109; "THE COURT: On the record, the jury has left the courtroom. We'll be off the record here for a minute so we can discuss the charge. (Discussion off the record) THE'COURT: Let's get this on the record..." .During the off the record discussion, Mr. Yzaguirre litigated a great deal of the time presenting the defense's position on law of parties. He presented case law and statutes which were binding and •. mandatory. The State offered almost no dispute .or rebuttal. PROOF OF CLAIM 30: Vol. 25 p.129; "(Off the record discussion at the bench)" This was in relation to acts of prosecutorial misconduct in which the State argued facts"not in evidence. Counsel moved for a mistrial which was denied by the court, and this matter is needed for appellate review by both the parties and the Court. PROOF OF CLAIM 31: Vol. 25 p.131; Reporter fails or refuses to include the prefix "dis" in Mr. Yzaguirre's statement to the court. "MR. YZAGUIRRE: That's ingenuous. They know their owrr:evidence or- they don't." Mr. Yzaguirre actually said, "That's disingenuous." To claim otherwise is without logic. PROOF OF CLAIM 32: Throughout the trial, the State regulary requested that their witnesses make drawing a chalkboard which was regularly erased and new drawings made by witnesses. Appellant has no record to cite or direct the court to on these matters.

PROOF OF CALIM 33: A large ariel map was used by the State for the jury to view as witnesses pointed out streets and directions- of travel. The transcription of witness statements give multiple phrases such as "this way", "that way", "left", "right", etc. which Appellant can not utilize without the map to show contradicting statements of witnesses. As stated above, inaccuracies include, but are not limited to, those outlined above. Additionally, I have found the Reporter's Record is incomplete due to the missing bench conferences, chamber's conferences, ex parte matters, and telephone conferences which were required to be recorded.

FURTHER AFFIANT SAYETH NAUGHT. . ^ y. Executed on October 30, 2015. Randall Bolivar, Affiant Ellis Unit, TDCJ # 1719379 1697 FM 980 Huntsville, Texas 77343 IN THE 13TH COURT OF APPEALS] EDINBURG

Randall Bolivar # 1719379 NOV 1 0 2015 1697 FM 980 Huntsville, Texas 77343 DORIAN E. RAMIREZ, CLE!= BY nrtnhmr 30, Pm^/? • ' Thirteenth Court of Appeals , **--,* /L ,.-#«. */#♦*. 100 E. Cano St., 5TH Floor *'* UktlM t> MAU11t>ttmt> ^021&I (Lib Edinburg, Texas 7B539

RE: Cause No. 13-14-00157-CR; RANDALL BOLIVAR 'V. THE STATE OF TEXAS

Dear Clerk of the Court, Enclosed for filing with the Court in accordance with your normal procedures please find the following: 1. APPELLANT'S AFFIDAVIT BY UNSU0RN DECLARATION PURSUANT TO 2B USC § 1746(1) PERTAINING TO AN INACCURATE AND INCOMPLETE REPORTER'S RECORD ON APPEAL;

2. GOOD FAITH NOTICE OF INACCURATE AND INC0MPELETE REPORTER'S RECORD;

3. 2ND DEMAND FOR STRICT ADHERENCE TO TRAP RULE 38.8(b) WITHIN FIFTEEN DAYS;

4- APPELLANT'S MOTION FOR ABATEMENT AND REMAND TO TRIAL COURT FOR RESOLUTION OF DISPUTE OVER ACCURACY AND COMPLETENESS OF REPORTER'S RECORD ON APPEAL PURSUANT TO WHITEHEAD V- STATE, 130 S.W.3d 866 (Tex. Crim- App. 2004);

5. NOTICE OF OBJECTION TO APPELLATE COURT CLERK'S LETTER REQUESTING APPELLEE *r "FILE'A RESPONSE TO THE APPELLANT'S MOTION FOR COMPLETE APPELLATE RECORD";

6. MOTION FOR ORDER DIRECTING COUNSEL TO PROVIDE APPELLANT WITH THE COMPLETE CASE FILE PURSUANT TO STATE BAR RULES AND MAXWELL V. FLORIDA, 107 S.CT. 474 (1986); and

7. DEMAND FOR EXPRESS RULINGS ON ALL PREVIOUSLY FILED MOTIONS WITH DESIGNATION FOR PUBLISHING.

Thank you far your time and efforts on this matter. God Bless You I

Respectfully Submitted,

Randall Bolivar, Appellant Pro Se

cc:

Cameron County DA's Office File