                                                                                        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.




                                        8
