AP-77,041 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/16/2015 12:00:00 AM Accepted 11/16/2015 7:47:33 AM IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN ABEL ACOSTA CLERK
BRIAN SUNIGA, § Appellant § November 16, 2015 § v. § § No. AP-77,041 THE STATE OF TEXAS, § Appellee § § _____________________________ §
FURTHER MOTION TO ABATE APPEAL FOR COMPLETION OF APPELLATE RECORD
Comes now, Brian Suniga, Appellant, by and through counsel and files this
Further Motion to Abate Appeal for Completion of Appellate Record, pursuant to
TEX. R. APP. P. 34.6(d), in support whereof Appellant states the following.
RELEVANT PROCEDURAL HISTORY AND FACTS
Appellant was convicted of capital murder and sentenced to death in the
140th Judicial District Court, Lubbock County, Texas, the Honorable Jim B.
Darnell presiding, Case # 2012-434,109. Appellant filed a designation of the
record on June 27, 2014. Upon a preliminary review of the record, it came to
counsel’s notice that there were omissions from both the Clerk’s Record and the
Reporter’s Record which needed to be remedied before the Appellant’s Opening
Brief could be prepared. 1 The missing items included a Motion to Suppress based on the Fourth
Amendment to the United States Constitution, requested Findings of Fact and
Conclusions of Law concerning the denial of the Motion to Suppress, exhibits to
two motions for a change of venue filed by defense counsel, a copy of the trial
court’s docket sheet, the transcript of the initial jury call and taking of juror
excuses, the transcript of a hearing concerning an attempt by Appellant to
discharge trial counsel and many sealed documents, motions and orders, which
were not reflected in the existing Clerk’s Record in any way.
On April 29, 2015, undersigned counsel filed a “Motion to Abate Appeal for
the Trial Court to Enter Findings of Fact and Conclusions of Law and for
Completion of Appellate Record,” asking this Court to order the trial court to
prepare the missing Findings of Fact and Conclusions of Law, the Clerk of the
140th District Court to provide a supplemental Clerk’s Record containing the
relevant missing items, and the Court Reporter of the 140th District Court to
provide a supplemental Reporter’s Record of any hearings or proceedings
conducted in this cause and not already provided. That motion was granted on
May 20, 2015, and supplemental Clerk’s and Reporter’s Records were filed on
2 June 22, 2015.1
Undersigned counsel subsequently sought two extensions of time, on July
15, 2015, and October 16, 2015, respectively, in which to file Appellant’s Opening
Brief. Those motions were granted and the opening brief is currently due on
November 19, 2015. However, the undersigned has recently discovered, in the
course of preparing the Opening Brief, that there remains at least one further
proceeding in the case that does not appear in the Reporter’s Record.
During the time that jury selection in this case was taking place, there had
been a flurry of media coverage concerning Mr. Suniga’s case and his alleged links
to the “Tango Blast” gang. Consequently, defense counsel moved for a change of
venue, which was denied. 3 CR 1849-75; 21 RR 13-25. A gag order had been
issued, 3 CR 1846, but there was further media coverage nonetheless. 25 RR 12-
16. On May 2, 2014, the trial court indicated on the record that it had instructed
the court coordinator to locate Lieutenant Billy Koontz and Chief Deputy Cody
Scott of the Lubbock County Sheriff’s Office, both of whom had been quoted in an
article in the Lubbock Avalanche Journal despite the gag order. The trial court
stated that “the Court is going to have a conversation with them.” 25 RR 16.
1 No docket sheet has ever been provided. It appears that Lubbock County does not maintain docket sheets in criminal cases, despite the statutory requirement to do so. TEX. CODE CRIM. PROC. Art. 33.07.
3 Although the record does not reflect whether Chief Deputy Scott was ever
interviewed by the trial court, or appeared at a hearing, defense counsel indicated
in “Defendant’s Second Motion for Change of Venue, Dismissal of Twelve
Presently Selected Jurors and the Remainder of the Venire,” 3 CR 1958-1985, that
Lieutenant Koontz had been brought before the court and interviewed on May 2,
2014, although “[t]he transcript of this portion of the record is not yet available to
defense counsel.” 3 CR 1964. That transcript still does not appear in the
Reporter’s Record as it currently stands.
The undersigned has attempted to contact the court reporter to request the
transcript of any proceedings concerning Lt. Koontz or Chief Deputy Scott, or any
other hearing or proceeding that has not yet been transcribed, but has not yet
received a response.
LEGAL PRINCIPLES CONCERNING PROVISION OF APPELLATE RECORD.
As stated in Appellant’s previous Motion to Abate, the importance of the
appellate record in a criminal case is well-established. In Griffin v. Illinois, 351
U.S. 12 (1956) the Supreme Court held that an indigent criminal defendant has a
right to the provision of the transcript of his trial, rooted in the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. The right to a transcript
4 when faced with “devastatingly adverse action” by the State was re-affirmed in
M.L.B. v. S.L.J., 519 U.S. 102, 117 (1996) (petitioner entitled to free transcript in
case concerning termination of parental rights). An indigent inmate’s access to his
trial transcript must not be impeded. In re Bonilla, 424 S.W.3d 528, 533 (Tex.
Crim. App. 2014) (indigent inmate had clear right to access to information about
cost of obtaining trial transcript, which was required by “unequivocal, well-settled,
and clearly controlling legal principles”).
It is also counsel’s duty to ensure that a complete record is before the court,
since the appealing party must present the appellate tribunal with the record
necessary to establish a right to relief. Newman v. State, 331 S.W.3d 447 (Tex.
Crim. App. 2011)(appellant who presented no record of a hearing concerning his
speedy trial claim should have lost in court of appeals). The duty of counsel in a
capital case to ensure that the official record of the proceedings is complete is
explicitly imposed by the State Bar of Texas: Guidelines and Standards for Texas
Capital Counsel, Texas Bar Journal 966-982 (November 2006), see Guideline
11.1.C: “Counsel at every stage have an obligation to satisfy themselves
independently that the official record of the proceedings is complete and to
supplement it as appropriate;” Guideline 12.2.A.7.
Where the Reporter’s Record is found to be incomplete, the appellate court
5 may direct the court reporter to prepare, certify, and file the missing items or
record in the appellate court. TEX. R. APP.P. 34.6(d). Although Appellant’s
opening brief is in the latter stages of preparation, it cannot be filed before the
record in the case is finally complete and any relevant items taken into account in
the points of error that are being raised.
CONCLUSION AND PRAYER.
WHEREFORE, Appellant Brian Suniga, prays that the Court of Criminal
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AP-77,041 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/16/2015 12:00:00 AM Accepted 11/16/2015 7:47:33 AM IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN ABEL ACOSTA CLERK
BRIAN SUNIGA, § Appellant § November 16, 2015 § v. § § No. AP-77,041 THE STATE OF TEXAS, § Appellee § § _____________________________ §
FURTHER MOTION TO ABATE APPEAL FOR COMPLETION OF APPELLATE RECORD
Comes now, Brian Suniga, Appellant, by and through counsel and files this
Further Motion to Abate Appeal for Completion of Appellate Record, pursuant to
TEX. R. APP. P. 34.6(d), in support whereof Appellant states the following.
RELEVANT PROCEDURAL HISTORY AND FACTS
Appellant was convicted of capital murder and sentenced to death in the
140th Judicial District Court, Lubbock County, Texas, the Honorable Jim B.
Darnell presiding, Case # 2012-434,109. Appellant filed a designation of the
record on June 27, 2014. Upon a preliminary review of the record, it came to
counsel’s notice that there were omissions from both the Clerk’s Record and the
Reporter’s Record which needed to be remedied before the Appellant’s Opening
Brief could be prepared. 1 The missing items included a Motion to Suppress based on the Fourth
Amendment to the United States Constitution, requested Findings of Fact and
Conclusions of Law concerning the denial of the Motion to Suppress, exhibits to
two motions for a change of venue filed by defense counsel, a copy of the trial
court’s docket sheet, the transcript of the initial jury call and taking of juror
excuses, the transcript of a hearing concerning an attempt by Appellant to
discharge trial counsel and many sealed documents, motions and orders, which
were not reflected in the existing Clerk’s Record in any way.
On April 29, 2015, undersigned counsel filed a “Motion to Abate Appeal for
the Trial Court to Enter Findings of Fact and Conclusions of Law and for
Completion of Appellate Record,” asking this Court to order the trial court to
prepare the missing Findings of Fact and Conclusions of Law, the Clerk of the
140th District Court to provide a supplemental Clerk’s Record containing the
relevant missing items, and the Court Reporter of the 140th District Court to
provide a supplemental Reporter’s Record of any hearings or proceedings
conducted in this cause and not already provided. That motion was granted on
May 20, 2015, and supplemental Clerk’s and Reporter’s Records were filed on
2 June 22, 2015.1
Undersigned counsel subsequently sought two extensions of time, on July
15, 2015, and October 16, 2015, respectively, in which to file Appellant’s Opening
Brief. Those motions were granted and the opening brief is currently due on
November 19, 2015. However, the undersigned has recently discovered, in the
course of preparing the Opening Brief, that there remains at least one further
proceeding in the case that does not appear in the Reporter’s Record.
During the time that jury selection in this case was taking place, there had
been a flurry of media coverage concerning Mr. Suniga’s case and his alleged links
to the “Tango Blast” gang. Consequently, defense counsel moved for a change of
venue, which was denied. 3 CR 1849-75; 21 RR 13-25. A gag order had been
issued, 3 CR 1846, but there was further media coverage nonetheless. 25 RR 12-
16. On May 2, 2014, the trial court indicated on the record that it had instructed
the court coordinator to locate Lieutenant Billy Koontz and Chief Deputy Cody
Scott of the Lubbock County Sheriff’s Office, both of whom had been quoted in an
article in the Lubbock Avalanche Journal despite the gag order. The trial court
stated that “the Court is going to have a conversation with them.” 25 RR 16.
1 No docket sheet has ever been provided. It appears that Lubbock County does not maintain docket sheets in criminal cases, despite the statutory requirement to do so. TEX. CODE CRIM. PROC. Art. 33.07.
3 Although the record does not reflect whether Chief Deputy Scott was ever
interviewed by the trial court, or appeared at a hearing, defense counsel indicated
in “Defendant’s Second Motion for Change of Venue, Dismissal of Twelve
Presently Selected Jurors and the Remainder of the Venire,” 3 CR 1958-1985, that
Lieutenant Koontz had been brought before the court and interviewed on May 2,
2014, although “[t]he transcript of this portion of the record is not yet available to
defense counsel.” 3 CR 1964. That transcript still does not appear in the
Reporter’s Record as it currently stands.
The undersigned has attempted to contact the court reporter to request the
transcript of any proceedings concerning Lt. Koontz or Chief Deputy Scott, or any
other hearing or proceeding that has not yet been transcribed, but has not yet
received a response.
LEGAL PRINCIPLES CONCERNING PROVISION OF APPELLATE RECORD.
As stated in Appellant’s previous Motion to Abate, the importance of the
appellate record in a criminal case is well-established. In Griffin v. Illinois, 351
U.S. 12 (1956) the Supreme Court held that an indigent criminal defendant has a
right to the provision of the transcript of his trial, rooted in the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. The right to a transcript
4 when faced with “devastatingly adverse action” by the State was re-affirmed in
M.L.B. v. S.L.J., 519 U.S. 102, 117 (1996) (petitioner entitled to free transcript in
case concerning termination of parental rights). An indigent inmate’s access to his
trial transcript must not be impeded. In re Bonilla, 424 S.W.3d 528, 533 (Tex.
Crim. App. 2014) (indigent inmate had clear right to access to information about
cost of obtaining trial transcript, which was required by “unequivocal, well-settled,
and clearly controlling legal principles”).
It is also counsel’s duty to ensure that a complete record is before the court,
since the appealing party must present the appellate tribunal with the record
necessary to establish a right to relief. Newman v. State, 331 S.W.3d 447 (Tex.
Crim. App. 2011)(appellant who presented no record of a hearing concerning his
speedy trial claim should have lost in court of appeals). The duty of counsel in a
capital case to ensure that the official record of the proceedings is complete is
explicitly imposed by the State Bar of Texas: Guidelines and Standards for Texas
Capital Counsel, Texas Bar Journal 966-982 (November 2006), see Guideline
11.1.C: “Counsel at every stage have an obligation to satisfy themselves
independently that the official record of the proceedings is complete and to
supplement it as appropriate;” Guideline 12.2.A.7.
Where the Reporter’s Record is found to be incomplete, the appellate court
5 may direct the court reporter to prepare, certify, and file the missing items or
record in the appellate court. TEX. R. APP.P. 34.6(d). Although Appellant’s
opening brief is in the latter stages of preparation, it cannot be filed before the
record in the case is finally complete and any relevant items taken into account in
the points of error that are being raised.
CONCLUSION AND PRAYER.
WHEREFORE, Appellant Brian Suniga, prays that the Court of Criminal
Appeals should abate this case and its briefing schedule with immediate effect and
remand the case to the 140th District Court with instructions to the Court Reporter
to prepare and file the missing transcript of any proceedings involving Lt. Koontz
or Chief Deputy Scott, and also to ascertain whether there are any remaining
hearings or proceedings in this case that have not been transcribed and made part
of the Reporter’s Record.
Appellant further prays for a period of fourteen days from the time that the
supplemental Reporter’s Record filed, in order to review the additional materials
and incorporate them into the Opening Brief.2
2 Although TEX. R. APP. P. 38.6 provides for thirty days for the preparation of an Appellant’s Brief after the record is filed, given the advanced stage of preparation of the Brief in this case, no more time than fourteen days is likely to be needed for its completion, unless it transpires that any further Supplemental Reporter’s Record is very substantial.
6 Respectfully submitted,
__________________________ HILARY SHEARD Law Office of Hilary Sheard 7421 Burnet Road # 300-512 Austin, Texas 78757 Phone (512) 524 1371 Fax (512) 646 7067 HilarySheard@Hotmail.com
Attorney for Appellant .
7 CERTIFICATE OF SERVICE
I certify that on November 14, 2015, a copy of the foregoing pleading was served electronically via www.efileTexas.gov on:
Jeffrey S. Ford, Esq. Chief - Appellate Division Lubbock County District Attorney’s Office Lubbock County Courthouse 904 Broadway - 2nd Floor P.O. Box 10536 Lubbock, Texas 79408. JFord@LubbockCDA.com
____________________________ Hilary Sheard.