Steve McCraw v. Ricardo Valdez Gomez, Jr.

• Court: Court of Appeals of Texas
• Decided: February 4, 2014
• Docket: 01-13-00573-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Steve McCraw v. Ricardo Valdez Gomez, Jr.

Appellate case number: 01-13-00573-CV

Trial court case number: 94-CR-1573

Trial court: 122nd District Court of Galveston County

Appellee, Ricardo Valdez Gomez, Jr., has filed a “Motion for Abatement in Order to Supplement the Record with a Reporter’s Record and for an Extension of Time to File Appellee’s Brief.” We deny Gomez’s request for abatement and grant his request for an extension to file appellee’s brief.

Appellant, Steve McCraw, timely appealed from the trial court’s June 5, 2013 order. The clerk’s record, filed with this Court on July 30, 2013, does not indicate that McCraw or Gomez requested preparation of a reporter’s record. McCraw represented in his docketing statement that there was no reporter’s record, and no reporter’s record was filed with this Court. McCraw filed his appellant’s brief on September 27, 2013. See TEX. R. APP. P. 38.6(a). Gomez’s brief, therefore, was due on October 28, 2013. See TEX. R. APP. P. 38.6(b).

On November 4, 2013, Gomez filed his motion requesting that the Court abate the case and the record be supplemented “with the reporter’s record (if available).” Gomez contends that abatement is necessary “to provide an adequate appellate record” and “[a] reporter’s record, if one exists, would be important to the resolution of the issues raised by the appellant and to the appellee’s response.” Gomez’s motion, however, does not indicate that he has determined that a reporter’s record is available or necessary to the appeal, or requested preparation of a reporter’s record. In his response to Gomez’s motion, McCraw contends that a reporter’s record is not necessary to the appeal. According to McCraw, although a hearing was held on November 9, 2012, “no testimony or evidence was introduced. Only argument was presented.”

We deny Gomez’s request to abate the appeal. See TEX. R. APP. P. 34.1 (“The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”); Samara v. Samara, 52 S.W.3d 455, 457 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (citing TEX. R. APP. P. 37.3(c)) (stating that, without reporter’s record, court decides appeal based on briefs and clerk’s record). In his motion, Gomez further requests that, if the Court denies his request for abatement, the time within which to file his brief be extended for thirty days from the date of this Court’s order. We grant Gomez’s request for additional time within which to file his brief. Gomez’s brief, if any, is ORDERED to be filed within 30 days of the date of this order.

It is so ORDERED.

Judge’s signature:/s/ Justice Jim Sharp  Acting individually  Acting for the Court

Date: February 4, 2014