Order entered October 25, 2019




                                              In the
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                      No. 05-19-00326-CR

                             RAYNALDO MARTINEZ, Appellant

                                                V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 1
                                   Dallas County, Texas
                          Trial Court Cause No. MA17-24740-A

                                            ORDER
       Before the court is appellant’s October 22, 2019 amended motion to complete the clerk’s

and reporter’s records and reset the briefing timetable. In his motion, appellant for the first time

requests supplementation of the clerk’s record filed on March 27, 2019, and the reporter’s record

filed on June 18, 2019. Appellant’s brief was due initially on July 18, 2019.

                                      Factual Background

       Counsel did not file a brief but instead, on July 22, 2019, moved for more time to file the

brief. The court granted that motion and ordered the brief due August 17, 2019. On August 9,

2019, counsel again moved for more time and the court again granted it, this time until

September 16, 2019. In that second order, the court “cautioned that the failure to file [the] brief

by that time may result in the appeal being abated for a hearing under rule 38.8.” Counsel filed a
third motion to extend the time to file appellant’s opening brief on September 16, 2019, the then-

due date for his brief. We granted that motion, stating, “If appellant’s brief is not filed by

October 16, 2019, this appeal may be abated for the trial court to make findings in accordance

with rule of appellate procedure 38.8.”

       Counsel filed a fourth motion. He styled this one as a “Motion to Complete Clerk’s and

Reporter’s Records and Reset Briefing Timetable.” In the motion, counsel contended the clerk’s

record as filed does not “include any jury notes, any responses from the court or supplemental

instructions, the defendant’s letter requesting the reporter’s record attached hereto, the

designation of record mentioned above and attached hereto, or the Order Appointing Counsel of

August 18, 2017.” Appellant conceded that jury notes, responses, and supplemental instructions

do not appear in the County Clerk’s online records, but he alleged “such documents were

probably in existence based on information from trial counsel.” Similarly, with regard to the

reporter’s record, appellant alleged, based on trial counsel’s recollection, not reflected in the

reporter’s record filed, that the jury transmitted a note to the trial court and the trial court

responded with a supplemental instruction to the jury.

       Counsel indicated that on October 10, 2019, he filed a designation for a supplemental

record on appeal. On October 11, 2019, counsel filed an amended designation for supplemental

record on appeal and then a second amended designation for supplemental record on appeal.

Counsel indicated he might file a third amended designation to obtain unspecified potential

missing items. He also has sent the court reporter a note asking for a supplemental reporter’s

record reflecting the alleged jury note and supplemental instruction or verification that such

proceedings did not occur.




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       Court reporter Georgina Ware responded October 16, 2019, stating that “no [Allen]

charge was read or submitted to the jurors and/or directed to be reported on the record and,

therefore, does not exist. Any juror’s note, or notes, directed to the court in this matter consisted

of any or all admitted exhibits to be reviewed, witness testimony, and matters resulting in a

possible deadlocked decision that prompted a response to continue deliberations agreed by the

parties, but no Allen charge was submitted.” This appears to answer the question regarding an

Allen charge, but does not resolve the issue of juror notes in that the letter appears to advert to

jury notes and court responses being sent in this case.

       Counsel filed an amended fourth motion on October 22, 2019, noting that a different

reporter, Vicki Tuck, indicated a jury note had been filed and stored with evidence. Counsel

indicates Ms. Tuck has informed him that Ms. Ware will supplement the record with this

material. Counsel again requested this court order the records supplemented.

                                         Legal Principles

       The rules of appellate procedure provide for supplementation of the record when relevant

items are omitted. See TEX. R. APP. P. 34.5(c), 34.6(d). The rules further provide that the

appellate court must accept supplemental clerk’s and reporter’s records even when such records

have not been timely requested. See TEX. R. APP. P. 34.5(b)(4), 34.6(b)(3). That said, nothing in

the rules of appellate procedure requires this court’s intervention to supplement the record with

materials such as those counsel requests here. Rule 34.5(c)(1) says “the trial court, the appellate

court, or any party may by letter direct the trial court clerk to prepare, certify, and file in the

appellate court a supplement containing the omitted item.” Rule 34.6(d) is worded similarly.

       Counsel has articulated no basis requiring this court’s intervention with the clerk or court

reporter. Counsel may, as the record-supplementation rules contemplate, direct the clerk or




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reporter “by letter” to prepare the desired records. See TEX. R. APP. P. 34.5(c), 34.6(d). Counsel

appears to have done so.

                                           Conclusions

       The court DENIES appellant’s amended motion to order the clerk or reporter to

supplement the record. We ORDER appellant’s opening brief due within forty days of this

order. The court will grant no further extensions of time for the opening brief, absent

extraordinary circumstances. If the brief is not filed during that time, the court will order counsel

to appear and show cause why his failure to timely file a rule-compliant brief should not subject

him to contempt.

       We DIRECT the Clerk of the Court to transmit a copy of this order, by electronic

transmission, to the Honorable Dan Patterson, Presiding Judge, County Criminal Court No. 1;

Vicki Tuck, Official Court Reporter, County Criminal Court No. 1; court reporter Georgina

Ware; John F. Warren, Dallas County Clerk; to Lynn Pride Richardson, Chief Public Defender

for Dallas County; and to individual counsel for the parties.




                                                      /s/       CORY L. CARLYLE
                                                                JUSTICE




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