Steven Lamon Moore v. State

• Court: Court of Appeals of Texas
• Decided: October 20, 2015
• Docket: 12-15-00195-CR
• Status: Published

Opinion

ACCEPTED 12-15-00195-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 10/20/2015 4:51:30 PM Pam Estes CLERK

NO. 12-15-00195-CR

STEVEN LAMON MOORE § IN THE COURT OF APPEALS FILED IN § 12th COURT OF APPEALS vs. § TWELFTH JUDICIAL TYLER, TEXAS DISTRICT § 10/20/2015 4:51:30 PM STATE OF TEXAS § TYLER, TEXAS PAM ESTES Clerk

MOTION TO SUPPLEMENT THE RECORD

TO THE CLERK AND COURT REPORTER OF SAID COURT:

Now comes STEVEN LAMON MOORE, Appellant in the above styled and

numbered cause, and would request this Court order the record be completed pursuant

to Texas Rule of Appellate Procedure 34.5(b) and would show:

Background and Procedural History

This case is on direct appeal from the 7th District Court of Smith County, Texas

and was assigned cause number 007-0446-15. Notice of appeal and a designation of

the record was all timely filed on or about August 5, 2015. The case was prosecuted

as a first degree felony of Manufacture/Delivery of a Controlled Substance. Mr. Moore

entered a plea of guilty to the indictment.

On October 20, 2015, Appellant’s counsel has reviewed the record and

determined that it is currently incomplete, and will not be completed without an order

from this Court.

Pre-Sentence Investigation Report

On prior to the sentencing on August 3, 2015, the trial court ordered the

preparation of a pre-sentence investigation report. ICR ; Page 50 and 78. TEX. CODE

CRIM. PROC. ANN. art. 42.12 § 9 (Vernon 2011). At the time of the original sentencing,

the court took judicial notice of the pre-sentence report. The State of Texas argued

from facts contained in the pre-sentence report. Mr. Moore’s attorney also argued from

Page 1 of 3 the pre-sentence report. In assessing sentence, the trial court referred to the pre-

sentence report.

Appellate’s counsel designated the presentence investigation report to be made

part of the clerk’s record in this case. I CR 67-68, line 20. The Smith County District

Clerk’s Office has been ordered at least twice to include the pre-sentence report in the

clerk’s record. In one of the cases, the information from the pre-sentence report

resulted in a reversal and a hearing on an aspect of the punishment in the case.

McGill v. State, 2011 Tex. App. LEXIS 6767 (Tex. App – Texarkana Aug. 24, 2011, no

pet.)(unpublished). This Court has ordered the production of the pre-sentence report

previously. Aybar v. State, Nos. 12-09-00320-CR and 12-09-00321-CR (Tex. App. –

Tyler, April 22, 2010)(order to compel). These documents were properly designated as

part of the for purposes of this appeal, and are necessary for counsel to effectively

represent his client on appeal.

Appellate’s counsel contacted the Smith County District Clerk and asked that

the Presentence Report be included.

Conclusion

If anything relevant is omitted from the clerk’s record, the appellate court or any

party, may by letter direct the District Clerk to prepare, certify and file in the appellate

court a supplemental clerk’s record containing the omitted items. TEXAS R. APP. P.

34.5(c).

Specifically, Appellant requests that the Smith County District Clerk be ordered

to supplement the record in this case with the presentence investigation report.

Counsel does not object to the District Clerk’s Office providing the presentence report

in a sealed fashion, providing the parties have an opportunity to review those

documents for possible sources of error in this case.

WHEREFORE, PREMISES CONSIDERED, Steven Lamon Moore respectfully

Page 2 of 3 prays that this Court grant this request, and order preparation of a supplemental

Clerk’s Record in this case.

Respectfully submitted,

Law Office of James W. Huggler, Jr. 100 E. Ferguson, Suite 805 Tyler, Texas 75702 Tel: (903) 593-2400 Fax: (903) 593-3830

By: /S/ James W. Huggler, Jr. James W. Huggler, Jr. State Bar No. 00795437 Attorney for Steven Lamon Moore

CERTIFICATE OF SERVICE

This is to certify that on October 20, 2015, a true and correct copy of the above

and foregoing document was served on the District Attorney's Office, Smith County,

100 N. Broadway, 4th Floor, Tyler, Texas 75702, by hand delivery or regular mail or

electronic filing.

/S/ James W. Huggler, Jr. James W. Huggler, Jr.

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