                                                                    ACCEPTED
                                                                03-15-00539-CR
                                                                        7801300
                                                     THIRD COURT OF APPEALS
                                                                AUSTIN, TEXAS
                                                          11/12/2015 2:10:53 PM
                                                              JEFFREY D. KYLE
                                                                         CLERK
           No. 03-15-00539-CR

        IN THE COURT OF APPEALS              FILED IN
                                      3rd COURT OF APPEALS
   FOR THE THIRD JUDICIAL DISTRICT OF      AUSTIN, TEXAS
         TEXAS AT AUSTIN, TEXAS       11/12/2015 2:10:53 PM
                                           JEFFREY D. KYLE
                                                Clerk
                 *********

        MATTHEW DIAZ
               APPELLANT

                   VS.

    THE STATE OF TEXAS
                 ********

ON APPEAL FROM THE 426th DISTRICT COURT
        OF BELL COUNTY, TEXAS
            Cause no. 72269

                  ******
  STATE’S MOTION FOR LEAVE
 TO SUPPLEMENT THE RECORD

                  HENRY GARZA
                  DISTRICT ATTORNEY

                  BOB D. ODOM
                  ASSISTANT DISTRICT ATTORNEY
                  P.O. Box 540
                  Belton, Texas 76513
                  (254) 933-5215
                  FAX (254) 933-5704
                  SBA No.15200000


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TO THE HONORABLE JUDGES OF SAID COURT:

      COMES NOW, the undersigned Attorney representing the State of Texas

in this cause and respectfully moves the Court to grant leave to supplement

the record, and in support hereof, would respectfully show the Court as

follows:

                                     I.

      The Appellant, Matthew Diaz, has filed his Brief alleging, in part, that the

trial court failed to enter an affirmative finding of the use of a deadly weapon

as alleged in the indictment.

                                     II.

      The disposition of this case in the trial court involved an initial hearing

on the Appellant’s plea of guilty, a hearing on the State’s First Amended

Motion to Adjudicate, and a punishment hearing. In his Brief at footnote 12 on

page 15 the Appellant notes that the record of the original plea hearing is not

“presently part of the record”. The undersigned counsel for the State has

examined the Reporter’s Record and discovered that, while the hearing on the

motion to adjudicate is duplicated in that record, there is no record of the

guilty plea proceeding in that Reporter’s Record.        The hearing upon the

Appellant’s plea of guilty was conducted on March 31, 2015.



                                           2
      Because the Appellant has raised an issue that will need to be evaluated

in the light of all of the hearings before the trial court in this case in order to

determine whether or not the trial court’s finding the Appellant guilty “as

charged in the indictment” and the court also references the finding regarding

the use of a deadly weapon at the plea of guilty at the adjudication hearing

(RR2-15), it is necessary to have the record of the plea hearing included

within the record in order to resolve the issue on appeal.

                                        III.

      The undersigned counsel for the State has contacted Peggy A. Morris,

official court reporter for the trial court and been advised that apparently the

Reporter’s Record of the hearing upon the Appellant’s plea of guilty has not

been prepared or filed.

      WHEREFORE, premises considered, the State respectfully prays this

Court to grant leave to supplement the record in this cause and to order the

official court reporter to prepare and file the Reporter’s Record of the plea

hearing conducted in this case on March 31, 2015 and file it of record with this

Court.




                                         3
                                           Respectfully Submitted,

                                           HENRY GARZA
                                           District Attorney


                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney
                                           P.O. Box 540
                                           Belton, Tx 76513
                                           (254) 933-5215
                                           FAX (254) 933-5704
                                           SBA No. 15200000




                       CERTIFICATE OF SERVICE


      This is to certify that a true and correct copy of this State’s Motion for

Leave to Supplement the Record was served upon John A. Kuchera, counsel for

Appellant, by Email addressed to him at johnkuchera@210law.com, on this

the 12th day of November, 2015.


                                           /s/ Bob   D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney




                                       4
           CERTIFICATE OF COMPLIANCE WITH RULE 9

     This is to certify that the State’s Motion is in compliance with Rule 9 of

the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 408 words.



                                          /s/ Bob   D. Odom
                                          BOB D. ODOM
                                          Assistant District Attorney




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