                                                                                           ACCEPTED
                                                                                       03-14-00570-CR
                                                                                               5873430
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                  6/30/2015 9:07:50 AM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                               NO. 03-14-00570-CR

ERIC BYRON CRAYTON                       §         IN THE THIRD FILED IN
                                                            3rd COURT OF APPEALS
                                                                AUSTIN, TEXAS
VS.                                      §         DISTRICT 6/30/2015
                                                             COURT9:07:50
                                                                        OF AM
                                                              JEFFREY D. KYLE
THE STATE OF TEXAS                       §         APPEALS OF TEXAS Clerk


  FIRST SUPPLEMENTAL MOTION TO SUPPLEMENT RECORD AND
            RESPONSE TO APPELLANT’S OBJECTION

TO THE HONORABLE JUSTICES OF SAID COURT:

      Now comes the State of Texas, Appellee in the above-styled and -numbered

cause, and moves the Court to order the preparation, certification and filing of a

supplemental reporter’s record under Rule 34.6(d) of the Texas Rules of Appellate

Procedure, or in the alternative to remand the cause to the trial court under

34.6(e)(3) of the Texas Rules of Appellate Procedure, and for good cause would

show the following:

                                        I.
      The State has diligently pursued supplementation of the record from the

moment it discovered the omission. I discovered that the version of State’s Exhibit

73 on file with the Court of Appeals omitted relevant parts of the admitted exhibit

on June 22, 2015. The State did not have notice or actual knowledge of the

omission prior to June 22, 2015. The omitted material is relevant and important

because every point of error raised by Appellant concerns the admission, contents

or sufficiency of State’s Exhibit 73.

                                        1
      I called Appellant’s attorney and – upon being told he was out of the office

until Wednesday – left a message explaining the issue. I subsequently spoke with

him about the issue on Wednesday, June 24th. Although I tried to speak with the

Court Reporter on June 24th and 25th, I learned that she was at a conference for the

remainder of that week. On June 26, 2015, the State submitted a Motion to Order a

Supplemental Reporter’s Record in cause 03-14-00570-CR. The State hereby

incorporates that motion by reference in full as if set forth herein verbatim,

including all statements, arguments and evidence from said motion. Motion,

attached.

                                         II.

      Appellant has filed an objection to the State’s earlier motion, arguing that

the State should “make use of the remedy provided in TEX. R. APP. P. 34.6(e)(3)”

instead. Appellant’s Objection at 2. However, subsection (e) deals with

inaccuracies in the record. See Tex. R. App. P. 34.6(e). The State seeks to

supplement omitted material under Rule 34.6(d). Although Appellant apparently

contends that the five minutes and 12 seconds of State’s Exhibit 73 currently on

file with the Third Court is the complete version (see Appellant’s Objection at 2),

as noted on the record, the actual exhibit entered at trial was much longer than five

minutes and 12 seconds:

      (State’s Exhibit 73 Published)


                                         2
      THE COURT:           Can you get the volume up a little?

      [State]:             Your Honor, I’m sorry. I think we started in the
                           middle of it there.

      THE COURT:           Oh, I see.

      [State]:             There is no conversation of any substance during
                           the first ten minutes, so the State will be skipping
                           ahead ten minutes. But it’s on the disk.

      [Defense]:           No objection. We don’t want the jury to fall asleep
                           again.

IV R.R. at 146 (emphasis added).

      Because the transcript already before the Court enables it to determine that it

does not have the complete exhibit entered into evidence, the Court should order

the Court Reporter to submit a supplemental record containing the full exhibit

introduced into evidence. See Lopez v. State, 314 S.W.3d 70, 72 (Tex. App.—

Waco 2010, no pet.) (Rule 34.6(d) grants appellate courts wide discretion to

supplement the transcript or statement of facts so as to include omitted matter); see

also Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim. App. 2003) (it is

“the appealing party’s burden to ensure that the record on appeal is sufficient to

resolve the issue he presents”). Alternatively, if by the time the Court proceeds on

the instant motion such a record has already been submitted, the Court should

allow the filing of the supplemental record containing the full version of State’s

Exhibit 73 actually admitted at trial.


                                           3
                                          III.

      Furthermore, if the Court does not obtain the supplemental record outright

under 34.6(d), in the alternative it should remand the cause to the trial court under

34.6(e)(3) of the Rules of Appellate Procedure. See Amador v. State, 221 S.W.3d

666, 677 (Tex. Crim. App. 2007) (“In the present case, the State requested

supplementation of the record. Thus, when a dispute arose over what and precisely

how much the record should be supplemented, the court of appeals was mistaken

to deny that request without also ordering the trial court to resolve the dispute”).

                                          IV.

      While Appellant stresses the fact that no further extensions will be granted

to the State (Appellant’s Objection at 3), the State in its first motion made clear

that it would submit its brief by the current deadline regardless of any

supplementation. Motion at 1, 2 n.1. Supplementing the record under either Rule

34.6(d) or 34.6(e)(3) therefore has no effect on the State’s timetable to submit its

brief, which will already be on file with the Court. Supplementing under 34.6(d)

will occasion no delay. Alternatively, the Court may order a speedy determination

of the issue before the trial court under Rule 34.6(e)(3); particularly in light of the

clear record cited supra, the State is ready to resolve the issue before the trial court

immediately, and the cause could conceivably be returned to the Court of Appeals

before Appellant’s response brief would be due. In any event – due to the heavy


                                           4
docket of cases before the appellate courts – the remand will not delay the

consideration of Appellant’s appeal for an unreasonable amount of time; in reality,

it will likely result in no delay whatsoever. See, e.g., Cause Numbers 03-14-00320-

CR (State’s brief filed August 28, 2014, not yet submitted), 13-14-00088-CR

(State’s brief filed August 20, 2014, to be submitted on briefs on July 15, 2015).

      Though Appellant also emphasizes that the record has been on file eight

months, the Court has recently remanded such a case in similar circumstances. See

Smith v. State, 03-11-00597-CR, 2012 WL 3629792, at *1 (Tex. App.—Austin

Aug. 23, 2012, no pet.) (mem. op., not designated for publication) (Court of

Appeals abated for supplementation on August 23, 2012, more than eight months

after the original reporter’s record had been filed with the Court on December 8,

2011); see also Lopez, 314 S.W.3d at 71-72 (after the appellate court issued its

original opinion reversing the trial court, it allowed supplementation of the record

over objection, and on rehearing affirmed the trial court).

                                          V.

      WHEREFORE, PREMISES CONSIDERED, the State’s counsel

respectfully prays that this Honorable Court order the preparation, certification and

filing of a supplemental record containing the full version (25 minutes and 58

seconds) of State’s Exhibit 73, or in the alternative, that it allow the filing of said

supplemental record into the record on appeal if it has already been submitted to


                                          5
the Court when the instant motion is heard and decided. Further, the State’s

counsel alternatively prays that in the event the Court finds there is a “dispute”

within the meaning of 34.6(e) of the Texas Rules of Appellate Procedure, that it

submit such a dispute to the trial court for a speedy resolution. Finally, the State’s

counsel prays for all further relief, both special and general, in law and in equity, to

which it may be entitled.



                                        Respectfully submitted,

                                        /s/ Clayten Hearrell
                                        Clayten Hearrell
                                        SBN: 24059919
                                        hearrc@co.comal.tx.us
                                        Assistant District Attorney
                                        Comal Criminal District Attorney’s Office
                                        150 N. Seguin Avenue, Suite 307
                                        New Braunfels, Texas 78130
                                        Ph: (830) 221-1300 / Fax: (830) 608-2008




                                           6
                          CERTIFICATE OF SERVICE

      I, Clayten Hearrell, Assistant District Attorney for the State of Texas,

Appellee, hereby certify that a true and correct copy of this First Supplemental

Motion and Response to Appellant’s Objection, including the attached and earlier-

filed Motion to Order a Supplemental Reporter’s Record, has been delivered to the

following:

      Mary Scopas
      Court Reporter
      scopam@co.comal.tx.us
      207th District Court
      150 N. Seguin Ave., Suite 317
      New Braunfels, TX 78130

      Richard E. Wetzel
      Attorney for Appellant ERIC BYRON CRAYTON on Appeal
      wetzel_law@1411west.com
      1411 West Avenue
      Suite 100
      Austin, TX 78701

By electronically sending it to the above-listed email addresses through

efile.txcourts.gov e-filing service this 30th day of June, 2015.



                                               /s/ Clayten Hearrell
                                                Clayten Hearrell




                                           7
Attachment




    8
                                                                                            ACCEPTED
                                                                                        03-14-00570-CR
                                                                                                5848498
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                   6/26/2015 4:20:35 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK
                               NO. 03-14-00570-CR

ERIC BYRON CRAYTON                         §         IN THE THIRD FILED IN
                                                              3rd COURT OF APPEALS
                                                                  AUSTIN, TEXAS
VS.                                        §         DISTRICT 6/26/2015
                                                               COURT4:20:35
                                                                          OF PM
                                                                JEFFREY D. KYLE
THE STATE OF TEXAS                         §         APPEALS OF TEXAS Clerk




   MOTION TO ORDER A SUPPLEMENTAL REPORTER’S RECORD

TO THE HONORABLE JUSTICES OF SAID COURT:

      Now comes the State of Texas, Appellee in the above-styled and -numbered

cause, and moves the Court to order the preparation, certification and filing of a

supplemental reporter’s record for good cause would show the following:

                                          I.
      Appellant was convicted by a jury of Tampering with Physical Evidence on

August 11, 2014 in the 207th District Court of Comal County. The jury then

sentenced Appellant to 35 years confinement in the institutional division of the

Texas Department of Criminal Justice. Appellant timely filed his notice of appeal

and requested that the Reporter submit a record containing all exhibits. The State’s

brief is due by July 3, 2015, and will be filed before the deadline.

                                          II.

      Mr. Clayten Hearrell is handling this appeal for the State. During further

review of the record while writing the State’s brief, Mr. Hearrell noticed that the

copy of State’s Exhibit 73 he obtained from the Court Reporter omitted part of the

                                          1
video which was entered into evidence. Whereas the full version of State’s Exhibit

73 – which the District Clerk has in its possession – is 25 minutes and 58 seconds

long, the version on file with the Third Court is apparently only five minutes and

12 seconds long. The State has need of and intends to cite to portions of the full

video which were omitted from the shorter version on file with the Third Court.1

Accordingly, under rule 34.6(d) of the Texas Rules of Appellate Procedure, the

State has requested that the Reporter prepare, certify and file the full version of

State’s Exhibit 73 in a supplemental reporter’s record. Request, attached.

                                                 III.

       Out of an abundance of caution, the State moves this Honorable Court to

order the preparation, certification and filing of said supplemental record. Because

the Court will not likely hear or decide the instant motion until 10 days after the

motion is filed, in the event said supplemental record has already been submitted to

the Court, the State alternatively moves the Court to accept the filing of said

supplemental record into the record on appeal. See Tex. R. App. P. 10.3, 34.6(d).

                                                 IV.

       WHEREFORE, PREMISES CONSIDERED, the State’s counsel

respectfully prays that this Honorable Court order the preparation, certification and

filing of a supplemental record containing the full version (25 minutes and 58

1
  Because the State’s brief will be filed before the deadline on July 3, 2015, it will cite to video
times in the anticipated supplemental record.

                                                  2
seconds) of State’s Exhibit 73, or in the alternative, that it allow the filing of said

supplemental record into the record on appeal if it has already been submitted to

the Court when the instant motion is heard and decided.



                                        Respectfully submitted,

                                        /s/ Joshua D. Presley
                                        Joshua D. Presley SBN: 24088254
                                        preslj@co.comal.tx.us
                                        Comal Criminal District Attorney’s Office
                                        150 N. Seguin Avenue, Suite 307
                                        New Braunfels, Texas 78130
                                        Ph: (830) 221-1300 / Fax: (830) 608-2008




                                          3
                          CERTIFICATE OF SERVICE

      I, Joshua D. Presley, Assistant District Attorney for the State of Texas,

Appellee, hereby certify that a true and correct copy of this Motion to Order a

Supplemental Reporter’s Record has been delivered to the following:

      Mary Scopas
      Court Reporter
      scopam@co.comal.tx.us
      207th District Court
      150 N. Seguin Ave., Suite 317
      New Braunfels, TX 78130

      Richard E. Wetzel
      Attorney for Appellant ERIC BYRON CRAYTON on Appeal
      wetzel_law@1411west.com
      1411 West Avenue
      Suite 100
      Austin, TX 78701

By electronically sending it to the above-listed email addresses through

efile.txcourts.gov e-filing service this 26th day of June, 2015.



                                               /s/ Joshua D. Presley
                                                Joshua D. Presley




                                           4
                            CAUSE NO. CR2012-225
                     (APPELLATE CAUSE NO. 03-14-00570-CR)                                     .....              ..,
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       RE UEST TO FILE SUPPLEMENTAL REPORTER'S RECO

TO THE HONORABLE REPORTER OF SAID COURT:

       Now comes the State of Texas, by and through its Assistant District

Attorney, and requests pursuant to rule 34.6(d) of the Texas Rules of Appellate

Procedure that the Court Reporter prepare, certify, and file in the Court of Appeals

for the Third District of Texas- in Appellate Cause Number 03-14-00570-CR- a

supplemental Reporter's Record containing the following items:

       a)      The full and complete video entered into evidence as State's Exhibit
               73 in CR2012-225, totaling approximately 25 minutes and 58
               seconds. 1

       b)      This State's Request to File Supplemental Reporter's Record.

Because the Defendant/Appellant is indigent, the record is to be prepared at

taxpayer expense.




1
  While the District Clerk appears to have the full version (25 minutes and 58 seconds long) on
file, the version of State' s Exhibit 73 currently on file with the Third Court of Appeals appears to
contain only a portion of the exhibit (around five minutes and 12 seconds long).
                                                  1
                                             Respectfully submitted,

                                               j_   P.   :i.

                         CERTIFICATE OF SERVICE

       I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
hereby certify that a true and correct copy of the above and foregoing Request to
File a Supplemental Reporter's Record was sent to the following:

      Mary Scopas
      Court Reporter
      207'h District Court
      150 N. Seguin Ave., Suite 317
      New Braunfels, TX 78130
      Fax: (830) 608-2030

      Richard E. Wetzel
      Attorney for Appellee ERIC BYRON CRAYTON on Appeal
      wetzel _law@ 1411 west. com
      1411 West A venue, Suite I 00
      Austin, TX 7870 I
      Fax: (512) 474-5594

By fax to the above-listed numbers on this the 26th day of June, 2015.




                                         2
