                                                                                              ACCEPTED
                                                                                          03-15-00316-CR
                                                                                                  7889321
                                                                               THIRD COURT OF APPEALS
                                                                                          AUSTIN, TEXAS
                                                                                    11/18/2015 3:00:15 PM
                                                                                        JEFFREY D. KYLE
                                                                                                   CLERK
                               NO. 03-15-00316-CR

HEATHER LAUREN RICHARDS                    §               IN THE THIRD
                                                                    FILED IN
                                                               3rd COURT OF APPEALS
                                           §                        AUSTIN, TEXAS
v.                                         §               DISTRICT   COURT
                                                               11/18/2015 3:00:15OF
                                                                                 PM
                                           §                       JEFFREY D. KYLE
THE STATE OF TEXAS                         §               APPEALS OFClerkTEXAS

STATE’S OBJECTION AND RESPONSE TO APPELLANT’S MOTION TO
             SUPPLEMENT APPELLATE RECORD

TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW THE STATE OF TEXAS, by and through its Assistant

District Attorney, and files this its Objection and Response to Appellant’s Motion

to Supplement Appellate Record in the above-captioned cause. The State objects to

and asks that this Honorable Court deny Appellant’s Motion, and would show the

following:


 I. Appellant Cannot “Supplement” Her Own Record With Testimony From
                     Another Case Outside the Record.

      Appellant seeks to “supplement” her own appellate record with part of the

reporter’s record from another case. Appellant’s Motion at 3. However, under the

applicable Rule, “the reporter’s record consists of the court reporter’s transcription

of so much of the proceedings … that the parties to the appeal designate.” Tex. R.

App. P. 34.6(a)(1) (emphasis added). The testimony Appellant now seeks to

“supplement” the record with does not come from “the proceedings” in Appellant’s



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case as contemplated by Rule 34.6. See id. Appellant’s attempt to supplement the

record with new evidence from another case is improper.

      While the record may be supplemented under the appellate rules if
      something has been omitted, the supplementation rules cannot be used
      to create new evidence. Moreover, an appellate court’s review of the
      record itself is generally limited to the evidence before the trial court
      at the time of the trial court’s ruling.

Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) (internal

citations omitted); see also Amador v. State, 221 S.W.3d 666, 676 (Tex. Crim.

App. 2007) (“It would be improper to ignore evidence that the trial judge did

consider, but it would be equally improper to consider evidence that the trial judge

did not consider”); Martinez v. State, 03-10-00138-CR, 2012 WL 512659, at *5

(Tex. App.—Austin Feb. 16, 2012, no pet.) (not designated for publication) (“With

limited exception, this Court cannot consider matters outside the appellate record

…. [s]uch materials cannot be made part of the record by supplementation”)

(noting among other things that the appellate record consists of the “reporter’s

record in the case” (emphasis added), and denying motion to supplement record

with trial testimony from another case to support appellant’s earlier-denied request

for expert assistance); cf. Warren v. State, 05-04-00472-CR, 2005 WL 1426174, at

*2 (Tex. App.—Dallas June 20, 2005, no pet.) (not designated for publication)

(appellant filed a “notarized statement from the victim asserting appellant is

innocent. The victim’s statement does not appear in the appellate record. We may


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not consider evidence from outside the record, and appellant may not supplement

the appellate record with affidavits submitted for the first time on appeal.”).


     II. The Appropriate Avenue for Appellant’s Ineffective Assistance Claim
    Based on Evidence Outside the Record Is a Post-Conviction Writ of Habeas
                                    Corpus.

        Furthermore, Appellant has failed to assert how Ms. Chavira’s testimony

“directly impeaches” the testimony of codefendants in Appellant’s trial.1 Notably,

neither the State – which called Ms. Chavira – nor the Defense in cause number

03-15-00247-CR had motivation to develop Ms. Chavira’s testimony as it related

to Appellant. Even if the record was supplemented with said testimony, it would

still lack evidence of trial counsel’s potential motivations for deciding not to call

Ms. Chavira. For example, Appellant was charged as a party, and Ms. Chavira’s

testimony – which mentioned Appellant herself – might have harmed her client at

trial.2 Ms. Chavira might also have testified to additional matters in Appellant’s


1
  Appellant’s only specific assertion is the tenuous claim that Barkley’s statements that the
victim was tased “several” times and that she was tased “at least 12, [and] as many as 20 times”
demonstrate “contradictory testimony.” Appellant’s Motion at 4.
2
  To prevail on a claim of ineffective assistance of counsel, an appellant must provide a record
that affirmatively demonstrates that defense counsel’s performance was not based on sound
strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Hollis v. State, 219 S.W.3d
446, 456 (Tex. App.—Austin 2007, no pet.); Mayhue v. State, 969 S.W.2d 503, 511 (Tex.
App.—Austin 1998, no pet.). If the appellate record is silent regarding the reasons for defense
counsel’s conduct, then it is insufficient to overcome the strong presumption that counsel was
following a legitimate strategy. Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000);
Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d
768, 771 (Tex. Crim. App. 1994) (refusing to hold counsel’s performance deficient given the
absence of evidence concerning counsel’s reasons for choosing the course he did); Hollis v.
State, 219 S.W.3d at 456.
                                               3
trial which were not elicited in 03-15-00247-CR. Appellant’s ineffective assistance

arguments – to the extent they are based on evidence outside Appellant’s record –

should be pursued through a post-conviction writ of habeas corpus.

      As the Court stated in Ex parte Torres, “[i]n most instances, the record on

direct appeal is inadequate to develop an ineffective assistance claim.” 943 S.W.2d

469, 475 (Tex. Crim. App. 1997) (internal citations omitted). Courts will not

speculate to find trial counsel’s strategies ineffective. Gamble v. State, 916 S.W.2d

92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). The Court has noted that

“trial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective. Absent such an opportunity, an appellate

court should not find deficient performance unless the challenged conduct was ‘so

outrageous that no competent attorney would have engaged in it.’” Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Rylander v. State,

101 S.W.3d 107, 111 (Tex. Crim. App. 2003)).

      Accordingly, the Court has repeatedly held that post-conviction writs of

habeas corpus are the more appropriate or preferable means of raising a claim of

ineffective assistance of counsel. See, e.g., Rylander, 101 S.W.3d at 110-11;

Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Mata v. State, 226

S.W.3d 425, 430 (Tex. Crim. App. 2007) (“[t]he lack of a clear record usually will

prevent the appellant from meeting the first part of the Strickland test, as the


                                         4
reasonableness of counsel’s choices and motivations during trial can be proven

deficient only through facts that do not normally appear in the appellate record”).

      In the instant case, Appellant cannot supplement her record with testimony

or evidence outside said record. Moreover, even assuming arguendo Appellant had

some legitimate ground which could be supported by such evidence, the

appropriate avenue to pursue such a claim is through a post-conviction writ of

habeas corpus, where facts which do not appear in the appellate record may be

considered. See Mata, 226 S.W.3d at 430. To hold otherwise would lead to an

avalanche of further supplementation requests – in the instant case and in future

cases – related to “evidence” one side or another will claim supports its cause on

appeal. Because Appellant has a more suitable and efficient avenue to pursue her

claim based on evidence outside the record, this Court should deny the instant

motion.


                                   III.     PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State respectfully prays

that Appellant’s Motion be, in all things, DENIED. Further, the State prays for all

other relief to which it may be entitled.




                                            5
                                       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



                          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 State’s Objection and

Response to Appellant’s Motion to Supplement Appellate Record has been

delivered to Appellant HEATHER LAUREN RICHARD’s attorney of record in

this matter:

        Amanda Erwin
        109 East Hopkins Street, Suite 200
        San Marcos, Texas 78666
        Phone: (512) 938-1800
        amanda@theerwinlawfirm.com
        Counsel for Appellant on Appeal

by electronic mail service through efile.txcourts.gov, this 18th day of November,

2015.

                                             /s/ Joshua D. Presley
                                              Joshua D. Presley



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