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

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easonably explain the need for an a waiver of the right to a statement of facts. extension; and Rhoda v. Stale, 514 SWZd 937, 939 (i) when an extension of time is (Tex.Crim.App. 1974); Shead v. Stale, requested for filing the statement of 697 SW2d 784, 786 (Tex.App.-Dallas facts, the facts relied upon to 1985) (holding that because Defendant did reasonably explain the need for an not timely designate record, he waived extension must be supported by the r~ght to file statement of facts on appeal, affidavit of the court reporter, or the and court lacked authority to grant motion certificate of the trial judge, which to extend time for filing designation), on shall include the court reporter's rehearing, 711 SWZd 345,347-348 (Tex. estimate of the earliest date whem the App.-Dallas 1986) (holding that such failstatement of facts will be available ure constituted ineffective assistance of for filing. counsel and remanding cause so that record Rule 73(a)-(i). This motion must also rea- could be prepared). sonably explain any delay in filing the re- With the adoption of the new rules, quest for the statement of facts. Rule 54(c). especially Rule 54(c), it now appears that Bear in mind that court reporters are as the failure to request the statement of facts overworked as you are. You may need to on time does not waive the right to have request one or more extensions of time to the statement of facts included on appeal. file the statement of facts. Along these Note also that the amendment to Rule lines, you should be aware of your court 53(a), effective January 1, 1988, elimiof appeals' policy on the number and nates the opening phrase, "in order to prelength of extensions for filing the record sent a statement of facts on appeal." In any so that you may press the court reporter event, should you fail to file your request when necessary. on time, file it late and be prepared to Problems with the Statement of Facts argue that this fact does not defeat your right to a statement of facts. If no statement of facts is filed, the clerk One of the major problems in this area will notify the appellant's attorney that in is the appellant's failure to file the request the absence of a statement of facts, that the for the statement of facts on time. If you appeal will be submitted on the transcript fail to file such a request, the court reporter alone. Rule 53(m). The appellate court may go ahead and prepare the record; then may order the trial court to hold a hearing again, he or she might not. You may be to determine whether this failure was due in serious trouble when it comes time to to ineffective assistance of counsel, or any file the record or an extension of time other reason; to make findings of fact and therefor. conclusions of law; to appoint counsel if If you are beyond the time for filing the necessary and transmit to the appellate request, go ahead and file it anyway. Rule court a record of the hearing. The appellate 54(c) provides that you may reasonably ex- court may order the late filing of a stateplain the delay in filing the request in your ment of facts. Id. motion to extend tie for filing the record. If the appellant is indigent, the appellate This provision has been interpreted as court likely will order the trial court to hold allowing an appellant to file a statement of such a hearing. This may not be so certain facts when the request was not filed rather if the appellant is not. If you represent an than forcing the appellant to proceed with- appellant who is in this situation, you out a statement of facts. Corltainer Part Services v. Gage, 719 SW2d 663,664-665 should petition the court of appeals to remand the cause to the trial court for a hear- (Tex.App.-El Paso 1986, no writ). A rea- ing. Should the evidence reveal that the sonable explanation includes any plausible failure to file the statement of facts was due set of circu~nstances indicating that failure to counsel's failure to designate, the apto file on time was not deliberate or inten- pellant will probably still receive a record tional, but the result of inadvertance, mis- -but only on a finding of ineffective take or mischance. Mes11,vert v. mesh we^?, assistance of that counsel. 549 SW2d 383, 384 (Tex. 1977). To summarize, if you don't get the re- Prior to the adoption of the Texas Rules quest for the slatement of facts filed on of Appellate Procedure, it was held that the I time, go ahead and file it late. This will failure to designate the record constituted prevent you from having to fall on your 28 VOICE for the Defense I November 1987 sword at a later time. If you have made a timely request for the statement facts, but the court reporter's notes and records have been lost or de- stroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts. This points up the need for a specific and exhaustive designation of the testimony: if you have requested all items such as sup- pression hearings, etc., you may win a new trial for your client if the notes for one of those hearings has been lost. Supplementing the Record Occasionally, despite your best efforts, supplementation of the record will be necessary. The clerk might accidentally omit one of your requested documents or the importance of a missing paper might not become apparent until the briefing stage. Fortunately, supplementing the record has become subst ntially easier under the new rules of appe 7 late procedure. Before submission of the case in the court af appeals, omitted matter may be supplemented as follows: (a) by stipulation of the parties (apparently directed either to the trial court or the court of appeals); (b) by order of the trial court, after notice and hearing, either before or after the record has been transmitted to the appellate court; (c) by the appellate court, on a proper suggestion on its own initiative. Rule 550). Under any of these methods, the clerk of the trial court or the official court reporter must transmit a certified supplem~ntal record supplying the omitted matter. Id. The appellate court shall permit it to be filed unless supplementation would unreasonably delay submission of the appeal. Id. Inaccuracies in the statement of facts may be corrected by stipulation. If the parties disagree as to whether correction is necessary, the appellate court will snbmit the matter to the trial court, which, after notice and hearing, will settle the dispute. Rule 55(a). [As a practical matter, it is not worth attempting to correct the statement of facts over minor inaccuracies; it is worth doing only if the court reporter has mistranscribed a critical portion of the testimony or a crucial objection].
. . I. I. After submission, if it appears that the record has not been properly prepared, the court of appeals may decline to receive submission. Rule 55(c). The court may also make such orders as are necessary "to secure a morc satistidctory suhniission of the case." , . ~resulnablv includinc " orderinc - supplementation on its own motion. Id. If the statement of facts was prepared in violation of the rules, the court may require thc appcllunt to furnish n propcr statumcnt, and upon his failure to do so may disreg:~rd it. Id. Vety rarely will supplementation be necessary after the case is submitted. Given the liberality of Rule 55(a) and (b), you should be able to take care of any supplementation problems before submission. Conclusion 2. All pleadings tiled by the Defendant and by the State of Texas and any and all rulings of the trial court thereon: 3. All docket entries made by the trial court: 4. All communications between the trial court and the jury: 5. All written waivers signed by the Defen- dant or his attorney; 6. All communications between the trial -court and counsel for all parties; 7. The Court's charge submitted by the trial court to the jury during the hearings on guilt1 inr~ocence and punshment; 8. All objections to the Court's charge and all requested inshuct~ons tiled by the Defendant during the hearings on guiltlinnacence and punishment; 9. The respective verdicts bf the jury during the hearings on guilt/innocence and punishment; 10. TRe judgment and sentence of the trial court; 11. The Defendant's notice of appeal; More exhaustive treatment of "lne of 12. All writtenmotions, pleasandordersof these issues may be found in the Texas the court; Criminal Appellate Manual (State Bar of 13. AU BU of~x"Ption, rulings ofthe trial Texas 1986). If yon intend todomore than court on any and all Bills of Exception, and one appeal per year, you should become transcripts of all proceedings held pursuant to familk with the rul& of appellate pro- said ifi is of Exception; - cedure; those attorneys who demonstrate 14. The Defendant's Motion For New Trial knowledge of appellate procedure tend to and Amended Motion New Trkl; haveless trouble with the appellate courts 15. The order of the trial court on Defendant's Motion For New Trial; when problems arise than those who do 16. The list of prospective jurors in which not. It is also worth consulting your local the Jury of this cause was selected; appellate court clerk about local rules and 17, ~h~ ~~~~d J~~ testimony of all w,tpolicies which may affect preparation of the record. NO. F81-12%3 H NO. BS7-b785Ml STATE OP TEXAS. IN THE CRIMINAL Aslln. VS OISTRTCT COURT OF 108 0. PUBLIC. 4~11a0t. DESIGNATION OF RECORD ON APPEAL TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Joe Q. Public, theDefendant in the above styled and numbered cause, prior to the time prescribed for prefecting the appeal, and fdes this Designationof Record on Appeal, pursuant to TEX. APP. PROC. R. 50 & 51, and requests that the Clerk of this Honorable Court make and prepare as a part of the record in the appeal in this cause, true copies of the following matters: 1. A copy ofthe indictment or information; nesses testifying for the State; 18. The written repons and statements of any witnesses testifying for the State; 19. All jury notes sent by thejury to thetrial coun during the hearings on guill!innocence and punishment, the response by the Court to said jury notes, the objections and requests made by the Defendant with respect to said notes and responses by the Court and the orders of the Court on each such objection and request; 20. The jury list showing the str~kes ofjurors by the State of Texas; 21. The jury list showing the strikes ofjurors by the defense; 22. All exhibits introduced into evidence; 23. All exhibits marked but not introduced into evidence. 24. In the event that this cause is a reindictment from an earlier case, the Appellant asks that all of the aforementioned items from the earlier case he included in the transcript of this case as part of the Appellate record as well. 25. In the event that this is a cause where the Defendant was placed on probation, and thereafter, his probation was revoked, the Appellant asks that all papers relating to both the initial plea proceedings and the probation revocation proceedings be included as well. Your Movant further urges the Court that all the above be assembled under one cover to thereby constitute the transcript on appeal; that the pages of said record he numbered con- secutively; that there be an index prepared by the Clerk showing each document incident in the record; and that, further, this record SENTENCING ALTERNATIVE PLANNING Our Defense Pre-Sentence Investigations and Reports: Carry favorable weight in the sentencing decisions of 85% of the judges who read them. Minimize potential post-conviction problems 0 Incorporate anticipated changes in federal and state sentencing practicing 0 Include a sentencing recommendation and, when ap- propriate, alternatives to incarceration Sentencing and Parole Consultants National Legal Services 71 0 Lake View Avenue, Atlanta, GA 30308 Call now: 1-800-241 -0095 November 1987 1 VOICE far the Defense 29
Page 1 and 2: ' Dane Whitworth. David Sheppard, R
Page 3 and 4: President's Report Should We or Sho
Page 5 and 6: David A. Sheppard obtained his J.D.
Page 7 and 8: set in pan or in whole he casts of
Page 9 and 10: H.B. 2575 writinz. If rhe murf d c
Page 11 and 12: taken outsidethemuttroom and he rec
Page 13 and 14: adopted by the health care agency o
Page 15 and 16: The DWI Roadblock Dilemma An Explic
Page 17 and 18: cause because the DWI iquad was aga
Page 19 and 20: that warrantless arrests in this St
Page 21 and 22: solely from thelips of the officers
Page 23 and 24: ests are being made. Potential viol
Page 25 and 26: SHOULD CONSIDER FACTORS SUCH AS BOT
Page 27 and 28: COURT OF CRIMNAL A P P E A L S Alex
Page 29 and 30: ARREST -- WARRANTLESS -- PROBABLE C
Page 31 and 32: 2. Would D confined without bail be
Page 33 and 34: Melvin Edward BUTLER, No. 1063-83 -
Page 35: Preparing the Record co~rlinuedfmm
Page 39 and 40: The Sex Offense Laws The Texas Pena
Page 41 and 42: it was noibeing offered to prove th
Page 43 and 44: difficulty of obtaining a convictio
Page 45 and 46: En Garde: The State's Rebuttal "Onc
Page 47 and 48: Another possible remedy may he to p
Page 50 and 51: On August 21, 1987, the Court of Ap
Page 52 and 53: Juan C. Duran 3103 Bee Cave Rd., a2
Page 54 and 55: Dale A. McCleary 310 N. Mesa, 3rd F
Page 56 and 57: Ray Velarde 10i3 Montana El Pasa, T
Page 58 and 59: Sometimes keeping this column going
Page 60: I ! TEXAS CRIMINAL DEFENSE LAWYERS

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

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