                                                                                   PD-0483-15
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                 Transmitted 6/22/2015 1:28:24 PM
                                                                  Accepted 6/24/2015 10:08:17 AM
                             No. PD-0483-15                                        ABEL ACOSTA
                                                                                           CLERK

         TO THE COURT OF CRIMINAL APPEALS OF TEXAS

                             RUBEN TOTTEN
                                Appellant

                                    v.

                          THE STATE OF TEXAS,
                                Appellee

       ______________________________________________________

              Reply to State’s Petion for Discretionary Review
       ______________________________________________________

             From the First Court of Appeals, No. 01-14-00189-CR
                 reversing the judgment in Cause No. 1365961
             from the 228th District Court of Harris County, Texas.
       ______________________________________________________


Oral Argument Requested
                                         ALEXANDER BUNIN
                                         Chief Public Defender
                                         Harris County, Texas

                                         SARAH V. WOOD
                                         Assistant Public Defender
                                         Harris County, Texas
                                         Texas Bar Number 24048898
                                         1201 Franklin, 13th Floor
                                         Houston, Texas 77002
                                         Phone: (713) 368-0016
                                         Fax: (713) 368-9278
        June 24, 2015
                                         Sarah.Wood@pdo.hctx.net

                                         Counsel for Appellant
Comes Now, Ruben Totten, and files this Reply to the State’s Petition for Discretionary
Review pursuant to Texas Rule of Appellate Procedure 68.9.


       The State Prosecuting Attorney (“SPA”) has filed a petition for discretionary

review in this case that fails to comport with established procedure.

       First, the petition improperly urges this Court to consider an affidavit outside the

record that it has attached as an appendix. As Professors Dix and Schmolesky note, “It

is clear that informal efforts to put material not in the record before an appellate court

are neither proper nor effective.” 43B Tex. Prac., Criminal Practice And Procedure §

55:62 (3d ed.).

       In Hill v. State, the State sought abatement and remand from the Court of

Criminal Appeals regarding some discrepancy with the transcript. This Court refused

to consider the request, holding, “Although the State relies on an affidavit attached to

its motion to abate, that affidavit is not part of the appellate record and may not be

considered.” Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App. 2002).

       Second, the SPA’s petition fails to explicitly set forth “reasons for granting

review” and therefore does not comply with Texas Rule of Appellate Procedure 68.4(h)

requiring petitions to “amplify” the reasons for review under Rule 66.3. As this Court

has stated, “Manifestly, the presentation of reasons for review must focus on the

opinion of the court of appeals and its impact on our jurisprudence.” Hunter v. State,

954 S.W.2d 767, 768-69 (Tex. Crim. App. 1995). The SPA’s petition fails to do so.
       Moreover, the SPA’s primary “reason”—that the transcript is allegedly

inaccurate—does not properly fall under any of the six “Reasons for Granting Review”

set forth in Rule 66.3. Discretionary review is limited in scope and its purpose is to

review the decisions of the courts of appeals. Tex. R. App. Proc. 68.1; Stringer v. State, 241

S.W.3d 52, 59 (Tex. Crim. App. 2007). “This court will not consider a ground for review

that does not implicate a determination by the court of appeals of a point of error

presented to that court in an orderly and timely fashion.” Bynum v. State, 767 S.W.2d

769, 776 (Tex. Crim. App. 1989); Lambrecht v. State, 681 S.W.2d 614 (Tex. Crim. App.

1984). The State asks this Court to side-step the work of the Court of Appeals.

       Third, the SPA should be estopped from complaining about any alleged defect

in the record at this very late hour. As Professors Dix and Schmolesky observed,

“Appellate courts' power to abate is not general authority in the appellate judiciary to

give appellants a second chance to do what they failed to do when the case was before

the trial court.” 43B Tex. Prac., Criminal Practice And Procedure § 56:227 (3d ed.).

Fairness dictates that this principle should be applied with equal force against the State

in this case.1

       The record was filed in March of 2014. The State never mentioned the possibility

of an inaccuracy in the transcript. In fact, as the Court of Appeals noted, the State in its


1It is interesting to note that the State also argues appellant failed to apprise the courts below
of his objection to the jury charge. The State wishes to penalize the defendant for the adequacy
of his objection made seconds after the error while simultaneously arguing that its objection,
untimely by more than a year, should nonetheless be humored.
brief “does not respond directly to appellant’s argument…” (Op. at 5). The Harris

County District Attorneys Office did not elect to raise the transcript issue in the court

of appeals and neither does it raise the issue now, despite having litigated the case from

the beginning.

         Furthermore, the proper procedure for correcting a transcript is laid out in Rule

34.6(e) and it does not contemplate the issue being raised in this Court since it specifies

only that the court of appeals may remand the case to the trial court to resolve a record

dispute. As three judges of this Court have noted, “Rule 34.6(e) should not be applied

to provide appellant with another opportunity to do what he should have done well

before now…” Amador v. State, 221 S.W.3d 666, 680 (Tex. Crim. App. 2007) (Hervey

dissenting, in which Keller and Keasler joined). The State failed to avail itself of the

remedy provided in 34.6 and now it is quite untimely.

         Moreover, the State does not have a due process right or a fundamental liberty

interest that could weigh in favor of sacrificing judicial economy and procedural finality.

The State’s remedy, at this point, is to simply elect to re-prosecute Mr. Totten for the

possession of drugs, for which he was previously sentenced to 25 years in prison. The

reversal from the Court of Appeals is not the end of this case and it does not release

Mr. Totten. If the State feels that justice requires Mr. Totten to serve the minimum 25

years in prison for the 1.2 grams of crack found in his shoe, then it can simply try him

again.
       This Court has generally propounded a policy of restraint in granting PDRs

because otherwise it “only tends to undermine the respective roles of this and the

intermediate courts without significant contribution to the criminal jurisprudence of the

State.” Arcila v. State, 834 S.W.2d 357, 361 (Tex. Crim. App. 1992), overruled on other

grounds by Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). The unpublished

opinion in this case is fine as it stands. As this Court has noted of other cases, “It fairly

addresses the issues raised on appeal, evaluates those issues according to settled rules

of law, accounts for all evidence relevant to the questions presented, and reaches a

conclusion adequately supported by the law and the evidence.” Id. The State’s petition

should be denied.



                                                  Respectfully submitted,

                                                  ALEXANDER BUNIN
                                                  Chief Public Defender
                                                  Harris County Texas


                                                  /s/ Sarah V. Wood
                                                  SARAH V. WOOD
                                                  Assistant Public Defender
                                                  Harris County Texas
                                                  1201 Franklin, 13th Floor
                                                  Houston Texas 77002
                                                  (713) 368-0016 (phone)
                                                  (713) 368-9278 (fax)
                                                  State Bar Number 24048898
                                                  Sarah.Wood@pdo.hctx.net
                    CERTIFICATE OF SERVICE AND COMPLIANCE
       This is to certify that this filing has 968 words and that a copy of the foregoing
reply to the State’s petition for discretionary review has been served on the District
Attorney of Harris County, Texas, by the efile service and to the State Prosecuting
Attorney.

                                               /s/ Sarah V. Wood
                                               SARAH V. WOOD
