                                   IN THE
                           TENTH COURT OF APPEALS

                                 No. 10-09-00317-CR

KAYELYNN M. HALL,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 12th District Court
                              Walker County, Texas
                              Trial Court No. 24,520


                           MEMORANDUM OPINION


      Kayelynn M. Hall was convicted of the offense of burglary of a habitation. TEX.

PENAL CODE ANN. § 30.02 (West 2003). She was sentenced to 20 years in prison with a

$10,000 fine. We affirm.

      In her first issue, Hall contends that the trial court abused its discretion by

admitting into evidence at the punishment phase a letter Hall had written because the

State violated a Standing Discovery Order by not producing it to her before trial.

      The Standing Discovery Order relied upon by Hall is not a part of the record on

appeal. Assuming without deciding, however, that the State violated the Standing
Discovery Order, counsel did not ask for a recess or a continuance. Counsel's "failure to

request postponement or seek a continuance waives any error urged in an appeal on the

basis of surprise." Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982); see also

Oprean v. State, 201 S.W.3d 724, 730 n.10 (Tex. Crim. App. 2006) (Cochran, J., concurring)

("Thus, the trial court may always exclude the undisclosed evidence, but if he does not,

any error in causing 'surprise' to the defense is forfeited on appeal unless the defendant

has also requested a postponement or recess."). Accordingly, error, if any, is waived,

and Hall’s first issue is overruled.

        In her second issue, Hall argues that we should grant her a new punishment

hearing because the letter referenced in issue one has been lost. See TEX. R. APP. P.

34.6(f). However, there is nothing in this record to show that the letter has been lost or

destroyed, only counsel’s statements in Hall’s brief. Id (f)(2). Further, there is nothing

in the record to show whether the letter cannot be replaced either by agreement of the

parties or with a copy determined by the trial court to accurately duplicate the letter

with reasonable clarity. Id. (f)(4). Accordingly, Hall has not shown she is entitled to a

new punishment hearing. Her second issue is overruled.

        In her third issue, Hall contends her trial counsel rendered ineffective assistance

because he failed to timely obtain a hearing on Hall’s motion for new trial. However, a

hearing was held, albeit past the 75 day deadline to rule on the motion. TEX. R. APP. P.

21.8. Hall contends that because the hearing was held past the deadline, the trial court

was without jurisdiction to hold the hearing and we cannot consider the record of that

hearing. See Laidley v. State, 966 S.W.2d 105, 107-08 (Tex. App.—Houston [1st Dist.]

Hall v. State                                                                        Page 2
1998, pet ref’d). Whether or not we can consider the record of the hearing, the record

before us is still undeveloped as to counsel’s actions or alleged inactions and is not

adequate to determine if his performance was deficient.          See Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009) (A claim of ineffective assistance of counsel

generally will not be addressed on direct appeal because the record on appeal usually is

not sufficient to determine if counsel's performance was deficient.).

        Accordingly, Hall has failed to show the first prong, deficient performance, of

the Strickland test for ineffective assistance of counsel. See Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Her third issue is overruled.

        Having overruled each of Hall’s issues on appeal, we affirm the judgment of the

trial court.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
 Opinion delivered and filed February 2, 2011
Do not publish
[CR25]




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