      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-16-00499-CR



                               Thomas Santellana, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
         NO. CR2014-391, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Thomas Santellana, Jr., was charged by indictment with the felony offense

of escape. See Tex. Penal Code § 38.06. He filed a pre-trial application for writ of habeas corpus,

in which he contended that the double-jeopardy clauses of the United States and Texas Constitutions

bar his prosecution. The trial court denied his application, and Santellana now appeals. We will

affirm the trial court’s order denying his application.

               On appeal, Santellana argues that prosecution for escape would expose him to

double jeopardy because he was already tried and convicted for offenses that he committed during

the same episode that gave rise to his escape charge. Specifically, Santellana states that he was

convicted of “multiple counts of Forgery, a count of Possession of a Controlled Substance, a count

of Theft (over $1,500.00 less than $20,000.00), and a count of Tampering with Evidence” in a separate

case. Santellana asserts that, during his trial for those offenses, the State introduced evidence of
his escape, which allegedly took place as Santellana was being transported to jail after his arrest

for those offenses. Although Santellana was not tried or convicted for escape in his earlier trial,

he argues that the double-jeopardy clauses bar his prosecution for escape because “the evidence of

escape was part of the prosecution of the case in the [earlier] trial . . . and used to support both the

verdict and punishment of the Appellant.”

                However, Santellana has not included the record from his earlier trial in the record

before us in this case.1 The only reporter’s record before us is the record for the hearing on

Santellana’s pre-trial habeas application. Moreover, it is not clear from the record before us that the

record of Santellana’s previous trial was before the trial court when it denied his habeas application.

Because Santellana has not provided us with a record of his previous trial and demonstrated from

that record how the State used evidence of his alleged escape during the trial, we conclude that

Santellana has not met his burden of showing that he is entitled to habeas relief. See Ex parte Kimes,

872 S.W.2d 700, 703 (Tex. Crim. App. 1993) (“A writ applicant has the burden of proving the facts



        1
          Santellana has attached portions of the reporter’s record for his earlier trial to his appellate
brief in this case. However, documents attached to a brief are not part of the record and will not
be considered by this Court. See Raspberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976)
(“We note that the documents attached to the pro se brief are not part of the record and cannot be
considered by this Court.”); Polsky v. State, No. 03-14-00068-CV, 2016 WL 2907975, at *8 (Tex.
App.—Austin May 13, 2016, pet. abated) (mem. op., not designated for publication) (“We are not
permitted to consider documents attached to an appellate brief that do not appear in the record.”);
Cantrell v. State, No. 10-12-00269-CR, 2014 WL 2069279, at *6 (Tex. App.—Waco May 15, 2014,
no pet.) (mem. op., not designated for publication) (refusing to consider booking record included
in appellant’s appendix); Williams v. State, No. 07-12-00285-CR, 2013 WL 4779728, at *1 (Tex.
App.—Amarillo Sept. 5, 2013, no pet.) (mem. op., not designated for publication) (“[A]ppellant has
not presented us with an appellate record sufficiently adequate to resolve the dispute, and his
attaching the missing document to his brief does not fill the void.”). Moreover, even if these
excerpts were properly before us, Santellana does not call our attention to any particular passages
or explain how these excerpts entitle him to habeas relief.

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which would entitle the applicant to relief.”); Ex parte Escobedo, No. 04-17-00150-CV, 2017 WL

1161139, at *1 (Tex. App.—San Antonio Mar. 29, 2017, no pet. h.) (mem. op., not designated for

publication) (per curiam) (“Relator bears the burden of providing this court with a record sufficient

to establish his right to habeas corpus relief.”); State v. Mutei, No. 08-15-00056-CR, 2017 WL

542025, at *5 (Tex. App.—El Paso Feb. 10, 2017, no pet. h.) (not designated for publication) (“An

applicant for a writ of habeas corpus bears the burden of proving his allegations by a preponderance

of the evidence. The applicant also bears the burden of ensuring that a sufficient record is presented

to show error requiring reversal on appeal.”) (citation omitted); Ex parte Riley, No. 03-16-00350-CR,

2016 WL 6068254, at *3 (Tex. App.—Austin Oct. 11, 2016, pet. ref’d) (mem. op., not designated

for publication) (“The applicant bears the burden of establishing by a preponderance of the evidence

that the facts entitle him to relief.”); Stanley v. State, No. 03-13-00585-CR, 2015 WL 4911801, at

*1 (Tex. App.—Austin Aug. 14, 2015, pet. ref’d) (mem. op., not designated for publication) (“When

raising a double-jeopardy claim on a pretrial writ of habeas corpus, the applicant bears the burden

of proof under a preponderance of the evidence standard.”).

               Accordingly, we affirm the trial court’s order denying Santellana’s application for

writ of habeas corpus.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Chief Justice Rose, Justices Field and Bourland

Affirmed

Filed: April 26, 2017

Do Not Publish

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