Smith v. State

722 S.W.2d 408, 1986 Tex. Crim. App. LEXIS 842

• Court: Court of Criminal Appeals of Texas
• Decided: October 15, 1986
• Docket: Nos. 156-84, 157-84
• Status: Published

Opinions

OPINION ON APPELLANTS’ PETITIONS FOR DISCRETIONARY REVIEW

PER CURIAM.

The prior opinion of the Court on original submission is withdrawn, and this opinion is substituted for it.

A jury convicted appellants of securing execution of a document by deception and assessed punishment for each at five years confinement and a fine of $2500. The Fourteenth Court of Appeals affirmed the judgment of conviction. Smith v. State, 681 S.W.2d 71 (Tex.App.—Houston [14th] 1983).

We granted ground for review one in appellants’ petitions for discretionary review to address a procedural issue concerning supplementation of an appellate record by a trial court under former Article 40.09, § 7, V.A.C.C.P, see now Tex.R.App.Pro. Rule 55, and consideration of it by an appellate court. Tex.Cr.App. Rule 302(c)(1) and (2), now Tex.R.App.Pro. Rule 200(c)(1) and (2).

The chronology of pertinent events leading to the decision of the Houston [14] Court is well documented in the opinion rendered below, and need not be iterated here. See Smith, supra, at 77. Relative to preliminary rulings denying supplementation of the record, appellants assert in their ground for review:

“The decision of the Court of Appeals that the trial court did not have authority to approve a supplemental record containing a motion to quash the indictment filed prior to trial misconstrues Article 40.09, Section 7, V.A.C.C.P.”

They claim the conflicting opinion is Deaton v. State, 642 S.W.2d 247 (Tex.App.— Houston [14th] 1982), no P.D.R. history.

When Deaton v. State, supra, is carefully compared with the opinion below, however, there is no conflict. In the instant cause, disdaining authorities cited by the parties, another panel of the Houston [14th] Court disposed of the supplementation issue on a theory somewhat different than that suggested in appellant’s ground for review, viz:

“We believe the issue before us is simple and none of the cases cited by either appellants or the state is controlling. We hold that once the appellate record is approved and filed in the appellate court and a motion to supplement that record is then made in the appellate court and the court denies the motion, the trial court does not thereafter have the authority to order the record supplemented.”

681 S.W.2d at 77-78. Accordingly, the court ordered the supplemental transcript stricken and returned to the clerk of the trial court. That done, the court found that a motion to quash was not in the record, so “[njothing was presented for review,” and for that reason overruled the relevant ground of error.

Thus the key to its overruling appellants’ ground of error is that the court had previously denied appellants’ motion to supplement the record. That ruling, as well as its order striking the supplemental transcript, is essentially interlocutory in nature, and we have determined that ordinarily this Court will not examine those kinds of actions of a court of appeals by way of a petition for discretionary review. Measeles v. State, 661 S.W.2d 732 (Tex.Cr.App.1983). We also observe that though more than one opportunity was afforded for objections to the original record and, indeed, appellants did object in another particular, they never objected to omission of their motion to quash. See Nethery v. State, 692 S.W.2d 686, 701 (Tex.Cr.App.1985), Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex.Cr.App.1981), and cases there cited.

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Therefore, the judgment of the court of appeals is affirmed.

Given provisions of Tex.R.App.Pro. Rule 55(b); we anticipate the scenario in this cause will not be replayed.