                             Fourth Court of Appeals
                                     San Antonio, Texas
                                          January 27, 2017

                                        No. 04-16-00807-CR

                                          Shari HUSTEAD,
                                              Appellant

                                                   v.

                                       The STATE of Texas,
                                             Appellee

                  From the 216th Judicial District Court, Gillespie County, Texas
                                      Trial Court No. 5772
                         Honorable N. Keith Williams, Judge Presiding


                                           ORDER
        On January 10, 2017, the court reporter responsible for filing the record in this case filed
a notification of late record, stating that the reporter’s record had not been filed because
appellant’s court-appointed counsel, Leland McRae, had failed to file a designation of record.
We ordered Mr. McRae to file, on or before January 20, 2017, written proof to this court that he
had filed a designation of record with the court reporter.

        On January 11, 2017, we received notice that on December 20, 2016, the trial court
granted Mr. McRae’s motion to withdraw as appellate counsel and appointed Pat McGuire to
represent appellant on appeal. We, therefore, ORDER Mr. McGuire to file, on or before
February 7, 2017, written proof to this court that he has filed a designation of record with the
court reporter. The reporter’s record is due thirty (30) days after the designation of record is
filed with the court reporter.

         On January 11, 2017, the trial court clerk filed a notification of late record stating that
part of the reason the clerk’s record had not been filed was that she had not received a
designation of record from Mr. Maguire. Texas Rule of Appellate Procedure 35.3(a) states that
the trial court clerk is responsible for preparing, certifying, and timely filing the clerk’s record if:

        (1)     a notice of appeal has been filed;

        (2)     the trial court has certified the defendant=s right of appeal; and
       (3)     the party responsible for paying for the preparation of the clerk=s
               record has paid the clerk’s fee, has made satisfactory arrangements
               to pay the fee, or is entitled to appeal without paying the fee.

TEX. R. APP. P. 35.3(a). Here, the trial court clerk does not claim in her notification that a notice
of appeal has not been filed, that the trial court did not certify the defendant’s right of appeal, or
that appellant is not entitled to proceed without paying the fee for the clerk’s record. Thus,
pursuant to Rule 35.3(a), the trial court clerk is responsible for preparing, certifying, and timely
filing the clerk’s record.

       Additionally, Rule 34.5(a) lists the documents to be included in the clerk’s record
“[u]nless the parties designate the filings in the appellate record by agreement under Rule 34.2.”
TEX. R. APP. P. 34.5. In criminal cases, the documents to be included in the clerk’s record are the
following:

       (1)     the indictment or information;
       (2)     any special plea or defense motion that was presented to the court and
               overruled;
       (3)     any written waiver, any written stipulation, and, in cases in which a
               plea of guilty or nolo contendere has been entered, any documents
               executed for the plea;
       (4)     the court’s docket sheet,
       (5)     the court’s charge and the jury’s verdict, or the court’s findings of
               fact and conclusions of law;
       (6)     the court’s judgment or other order that is being appealed;
       (7)     any request for findings of fact and conclusions of law, any post-
               judgment motion, and the court’s order on the motion;
       (8)     the notice of appeal;
       (9)     any formal bill of exception;
       (10)    any request for a reporter’s record, including any statement of
               points or issues under Texas Rule of Appellate Procedure 34.6(c);
       (11)    any request for preparation of the clerk’s record;
       (12)    the trial court’s certification of the defendant’s right of appeal
               under Texas Rule of Appellate Procedure 25.2; and
       (13)    any filing that a party designates to have included in the record.

Thus, Mr. McGuire may file a designation of materials to be included in the clerk’s record but he
is not required to do so. See TEX. R. APP. P. 35.3(a); 34.5(a).

       We, therefore, ORDER the trial court clerk, Jan Davis, to file the clerk’s record on or
before February 17, 2017. In preparing the clerk’s record, the trial court clerk is ORDERED to
follow Texas Rule of Appellate Procedure 34.5(a).



                                                      _________________________________
                                                      Karen Angelini, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 27th day of January, 2017.
___________________________________
Keith E. Hottle
Clerk of Court
