Dane Whitworth. David Sheppard, Ruth Ellen Gura and Gerry orris ...

The initial stages of an appeal are highly
important for the criminal defense lawyer.
Without a complete record, your client will
not have a meaningful appeal. If, however,
yon do have a complete record, you will
know exactly what happened at trial-and
this is especially important if you are look-
ing for appellate issues when you did not
try the case. On the other hand, if you do
not file the proper requests, an important
document or portion of the testimony
might not be included in the record and you
could he denied the right to supplement at
a later time. In an extreme case, you could
lose your client's right to a statement of
facts entirely, thus raising the ugly spec-
tre of ineffective assistance of counsel.
This article discusses the mechanics for
getting the record fie and dealing with oc-
casional problems which may arise. n-
lustmtive motions are included at the end.
The Transcript on Appeal
The transcript on appeal is a collection
of the important documents and papers
from the case. It will always include copies
of the indictment or information; any
special pleas or motions of the defendant
which were presented to the court and
overruled, any written waivers; the court's
docket sheet; the charge to the jury and its
verdict; the court's judgment; any motion
for new trial and the ruling thereon; the
John Nation has been Chief Staff At-
torney for the Dallas Courf ofAppeals and
an Assistat@ District Attorney assigned to
the AppeNate Section in Dallas County,
Texas. He is now in private practice in
Dallas, Texas.
26 VOZCEfor the Defense I November 1987
Getting Started on an Appeal:
Preparing the Record
by John D. Nation
notice of appeal; any bills of exception and
any other papers designated by any party,
Tex. R. App. Pro. 51(a).
Although the rules of appellate pro-
cedure require the clerk to include the
above material in the transcript, you should
neveaheless fde a designation of the record
both to ensure that this material is included
and provide that any other papers you
deem relevant will be included with the
record. A designation is a request for cer-
tain listed papers, such as those mentioned
above, to be included in the record. [See
example and Rule 51@)]. Most appellate
practitioners will use a specific and ex-
haustive designation. This is necessary for
two reasons: what you do not request
might not make it into the transcript and
you cannot complain on appeal if papers
which you did not designate werenot in-
cluded in the record. Rule 51(h). Further,
a general designation, such as "all papers
filed in the cause", will be disregarded.
Id. A copy of the designation must be
served upon the State. Id.
Before filing your designation, you may
wish to review the trial court's jacket and
make notes of any material you think
should be included in the record. If the case
has been reindicted, check to see if there
were any important papers fled under the
previous indictment. Similarly, if you are
appealing a probation revocation based on
a previous guilty plea, make sure that the
plea papers and judgment are included. Re-
member that it is your responsibility to
have an adequate record prepared show-
ing error requiring reversal. Rule 50(d).
Time to File the
Designation and Transcript
Your designation must be filed "at or
before the time for perfecting the appeal."
Rule 51(b). This means that the designa-
tion is due within thirty days of imposition
of sentence if no motion for new trial is
filed or ninety days if a motion for new
trial is timely filed. Rule 41@)(1). If you
have filed your notice of appeal early, it
would appear under Rule 51(h) that you
can file the designation by the last day provided
for filing notice of appeal.
Once appeal is perfected, the clerk of the
trial court must immediately prepare and
transmit the transcript to the appropriate
appellate court. Rule 51(c). The transcript
must he made in duplicate, and one copy
will he retained by the trial court for use
by the parties with the permission of the
trial court. Id.
The transcript and statement of facts are
due in the appellate court within sixty days
of sentence, or within one hundred days
if a motion for new trial is filed. Rule
54(b). You may obtain an extension of
time to file the transcript and statement of
factsby filing a motion reasonably explaining
the need for more time in the court of
appeals not later than fifteen days after the
last date for filin~ the record. Rule 54(c).
See Sections 4 and 5, in*.
There is no speciiic provision for obtaining
an extension of time to file the designation
of the record. Under Rule 54(c), however,
as part of a motion for extension of
time to file the transcript and statement of
facts, you may explain any delay in filing
the request for the statement of facts. See
Sections 4 and 5, in*. It is submittedthat
if you have late fded the designation of the
record, you could explain any delay in a
subsequent mation to extend time for ffi
the record. Otherwise, you could petition
the appellate court to allow late filing of
the designation under Rule 2(b). (For good
cause shown, a court of appeals may suspend
the provisions and requirements of
any rule of appellate procedure upon the
application of any party).