                                                                                                ACCEPTED
                                                                                            03-14-00701-CR
                                                                                                    6628655
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       8/24/2015 4:27:25 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                               NO. 03-14-00701-CR

 BARRY PIZZO                               §    IN THE            FILED IN
                                                           3rd COURT OF APPEALS
                                           §                   AUSTIN, TEXAS
 VS.                                       §    THIRD COURT8/24/2015 4:27:25 PM
                                           §                 JEFFREY D. KYLE
 STATE OF TEXAS                            §    OF APPEALS         Clerk


                    MOTION TO SUPPLEMENT
            APPELLATE RECORD WITH OMITTED EXHIBITS

TO THE HONORABLE JUSTICES OF SAID COURT:

       Now comes BARRY PIZZO, Appellant in the above styled and numbered

cause, and pursuant to Tex.R.App.Pro. Rule 34.6(d), requests this Court to supplement

the appellate record with omitted audio/video exhibits from trial, and for good cause

would show as follows:

       1.    This case is on appeal from the 207th Judicial District Court of Comal

County, Texas.

       2.    The case below was styled the STATE OF TEXAS vs. BARRY PIZZO,

and numbered CR-2013-146.

       3.    Appellant was convicted of TAMPERING WITH OR FABRICATING

PHYSICAL EVIDENCE, a felony offense.

       4.    Appellant was assessed a sentence of confinement in the Texas

Department of Criminal Justice for LIFE.

       5.    Counsel for appellant has reviewed the appellate record, with the

exception of all the trial exhibits and, in particular, the items detailed below, and is
researching potential claims for relief. Through his review, Counsel has determined

that several exhibits have been omitted from the Reporter’s Record.

            These items are:

            a.     State’s Exhibit Number 76—a USB drive which contains material

                   published to the jury during the course of the trial but only a

                   photo of the USB drive is currently included in the appellate

                   record;

            b.     State’s Exhibit Number 75—a USB drive which contains material

                   that was published to the jury during the course of the trial but

                   only a photo of the USB drive is currently included in the

                   appellate record;

            c.     State’s Exhibit Number 51—a ‘box’ of photographs was admitted

                   at trial but only a photo of the ‘box’ of photographs is currently

                   included in the appellate record;

            d.     State’s Exhibit Number 52—a ‘box’ of photographs was admitted

                   at trial but only a photo of the ‘box’ of photographs is currently

                   included in the appellate record;

            e.     State’s Exhibit Number 53—a ‘plastic tub’ of photographs and

                   negatives was admitted at trial but only a photo of the ‘plastic

                   tub’ of photographs is currently included in the appellate
     record;

f.   State’s Exhibit Number 54—a ‘banker’s box’ of photographs and

     negatives was admitted at trial but only a photo of the ‘banker’s

     box’ of photographs is currently included in the appellate

     record;

g.   State’s Exhibit Number 55—a ‘banker’s box’ of photographs and

     negatives was admitted at trial but only a photo of the ‘banker’s

     box’ of photographs is currently included in the appellate

     record;

h.   State’s Exhibit Number 56—a ‘banker’s box’ of photographs and

     negatives was admitted at trial but only a photo of the ‘banker’s

     box’ of photographs is currently included in the appellate

     record;

i.   State’s Exhibit Number 57—a ‘box’ of photographs and negatives

     was admitted at trial but only a photo of the ‘box’ of photographs

     is currently included in the appellate record;

j.   State’s Exhibit Number 58—a ‘box’ of photographs and negatives

     was admitted at trial but only a photo of the ‘box’ of photographs

     is currently included in the appellate record;

k.   State’s Exhibit Number 59—a ‘box’ of photographs and negatives
                   was admitted at trial but only a photo of the ‘box’ of photographs

                   is currently included in the appellate record;

             l.    State’s Exhibit Number 60—a ‘box’ of photographs and negatives

                   was admitted at trial but only a photo of the ‘box’ of photographs

                   is currently included in the appellate record;

             m.    State’s Exhibit Number 61—Child Advocacy Center paperwork

                   was admitted at trial but only a photo of the Child Advocacy

                   Center paperwork is currently included in the appellate record;

             n.    State’s Exhibit Number 63—an envelope containing 12 letters

                   from the appellant was admitted at trial but only a photo of the

                   envelope containing 12 letters from the appellant is currently

                   included in the appellate record; and

             o.    State’s Exhibit Number 66—a folder containing court documents

                   and newspaper articles was admitted at trial but only a photo of

                   the folder containing court documents and newspaper articles is

                   currently included in the appellate record.

      6.     Accordingly, the record before this Court is incomplete and does not

provide an adequate basis for review of the merits of potential claims. At a minimum,

the omitted evidentiary items are believed to be relevant to the evaluation and

development of claims relating to whether appellant was provided with the effective
assistance of counsel.

      7.     The omitted exhibits are currently possessed by the Comal County

District Clerk and/or the Official Court Reporter for the 207th Judicial District Court

of Comal County, Texas.

      8.     In order to facilitate a full review of the appellate record by appellate

counsel and by this Court on appellate review, Appellant requests this Court to direct

the Comal County District Clerk and/or the Official Court Reporter for the 207th

Judicial District Court of Comal County, Texas to expeditiously copy and forward to

this Court for inclusion within the appellate record, complete, accurate, legible and/or

audible copies of the matters depicted in:

             a.     State’s Exhibit Number 76—a USB drive which contains material

                    published to the jury during the course of the trial but only a

                    photo of the USB drive is currently included in the appellate

                    record;

             b.     State’s Exhibit Number 75—a USB drive which contains material

                    that was published to the jury during the course of the trial but

                    only a photo of the USB drive is currently included in the

                    appellate record;

             c.     State’s Exhibit Number 51—a ‘box’ of photographs was admitted

                    at trial but only a photo of the ‘box’ of photographs is currently
     included in the appellate record;

d.   State’s Exhibit Number 52—a ‘box’ of photographs was admitted

     at trial but only a photo of the ‘box’ of photographs is currently

     included in the appellate record;

e.   State’s Exhibit Number 53—a ‘plastic tub’ of photographs and

     negatives was admitted at trial but only a photo of the ‘plastic

     tub’ of photographs is currently included in the appellate

     record;

f.   State’s Exhibit Number 54—a ‘banker’s box’ of photographs and

     negatives was admitted at trial but only a photo of the ‘banker’s

     box’ of photographs is currently included in the appellate

     record;

g.   State’s Exhibit Number 55—a ‘banker’s box’ of photographs and

     negatives was admitted at trial but only a photo of the ‘banker’s

     box’ of photographs is currently included in the appellate

     record;

h.   State’s Exhibit Number 56—a ‘banker’s box’ of photographs and

     negatives was admitted at trial but only a photo of the ‘banker’s

     box’ of photographs is currently included in the appellate

     record;
i.   State’s Exhibit Number 57—a ‘box’ of photographs and negatives

     was admitted at trial but only a photo of the ‘box’ of photographs

     is currently included in the appellate record;

j.   State’s Exhibit Number 58—a ‘box’ of photographs and negatives

     was admitted at trial but only a photo of the ‘box’ of photographs

     is currently included in the appellate record;

k.   State’s Exhibit Number 59—a ‘box’ of photographs and negatives

     was admitted at trial but only a photo of the ‘box’ of photographs

     is currently included in the appellate record;

l.   State’s Exhibit Number 60—a ‘box’ of photographs and negatives

     was admitted at trial but only a photo of the ‘box’ of photographs

     is currently included in the appellate record;

m.   State’s Exhibit Number 61—Child Advocacy Center paperwork

     was admitted at trial but only a photo of the Child Advocacy

     Center paperwork is currently included in the appellate record;

n.   State’s Exhibit Number 63—an envelope containing 12 letters

     from the appellant was admitted at trial but only a photo of the

     envelope containing 12 letters from the appellant is currently

     included in the appellate record; and

o.   State’s Exhibit Number 66—a folder containing court documents
                    and newspaper articles was admitted at trial but only a photo of

                    the folder containing court documents and newspaper articles is

                    currently included in the appellate record.

      9.     Each of the requested exhibits are essential on appeal to the evaluation

and development of claims relating to whether appellant was provided with the

effective assistance of counsel. It is apparent that many of the exhibits that were

omitted from the appellate record were ‘unnecessarily’ admitted at the trial of the

instant cause. However, in order to evaluate and develop a potential claim of

ineffective assistance of counsel on appeal, each of these exhibits are essential to the

appellate record. See Tex.R.App.Pro. Rule 34.6(c)(3).

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

grant this Motion to Supplement the Appellate Record and for such other and further

relief as the Court may deem appropriate.

                                        Respectfully submitted,

                                        THE PASTRANO LAW FIRM, P.C.
                                        The Old Cotton Exchange Building
                                        202 Travis Street, Suite 307
                                        Houston, Texas 77002
                                        Telephone: 713.222.1100
                                        Facsimile: 832.218.7114


                                        By:____________________________
                                          E. CHEVO PASTRANO
                                          State Bar No. 24037240
                                          chevo@pastranolaw.com
                         CERTIFICATE OF SERVICE

      This is to certify that on August 24, 2015, a true and correct copy of the above

and foregoing document was served on the District Attorney's Office, Comal County,

Texas, via facsimile and/or email.




                                       E. Chevo Pastrano
