                                                                                                           ACCEPTED
                                                                                                      12-14-00158-CR
                                                                                          TWELFTH COURT OF APPEALS
                                                                                                       TYLER, TEXAS
                                                                                                 1/20/2015 3:25:10 PM
                                                                                                         CATHY LUSK
                                                                                                               CLERK

                             CASE NO.: 12-14-00158-CR CR
                          Trial Court Case Number: 007-0505-13
                                                                             FILED IN
RICKY NEAL, JR.,                                                      12th COURT OF APPEALS
Appellant,                                                 THE TWELFTH COURT         OF
                                                                           TYLER, TEXAS
                                                           APPEALS, TYLER   DIVISION
                                                                      1/20/2015 3:25:10 PM
                                                                           CATHY S. LUSK
                                                                               Clerk
    vs.

THE STATE OF TEXAS,
Appellee.


          APPELLANT’S UNOPPOSED MOTION TO ABATE THE APPEAL
           AND MOTION FOR LEAVE TO SUPPLEMENT THE RECORD

       TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, the Appellant, RICKY NEAL, JR., in the above-styled and

numbered cause, by and through the undersigned counsel, and files this Motion to Abate

the Appeal and Leave to Supplement the Record in accordance with Texas Rules of

Appellate Procedure 34.6(d) and 34.6(e)(3). In support thereof, the undersigned would show

this Honorable Court as follows:

       A Smith County jury returned a verdict of guilty against Appellant for the offense of

murder on May 21, 2014. The 7th Judicial District Court thereafter sentenced Appellant to a

term of Life in the Texas Department of Criminal Justice. On June 16, 2014, Appellant filed his

notice of appeal with this Court.

       On September 20, 2014, the undersigned received 19 volumes of the official court

reporter’s record of the case. Appellant’s brief is presently due on or before this day, January 20,

2015.1 On January 12, 2015, the undersigned file a third motion for extension with this Court.

As of the filing this motion, no ruling has been made on this motion.
1
  On November 19, 2014, the Court granted the undersigned’s second motion for extension and
ordered that no further extensions would be entertained by the Court.
     On January 17, 2015, while in the process of completing the procedural history section of

Appellant’s brief, the undersigned discovered that portions of the reporters record are missing

from the record filed with this Court.

     On September 20, 2014, the court reporter for the 7th Judicial District Court filed 19

volumes of the electronic record with this Court. Upon closer inspection of volume 18 of the

transcripts, the undersigned discovered reference to the trial court recessing the proceedings at

the close of the punishment trial. Volume 19 of the record is the Exhibit Index. Accordingly the

final stage of the punishment trial, including the charge, closing arguments of counsel, the verdict

and Appellant’s sentencing are missing from the record. Upon discovery of this incomplete

record, the undersigned immediately contacted the reporter. As of the filing of this motion, the

reporter has not yet responded as to this issue. In addition, on January 20, 2015 the undersigned

has also faxed a letter to the official reporter requesting supplementation of the record in this

case. Accordingly, counsel hereby request that this Honorable Court abate this appeal to permit a

supplementation of the record with the missing transcripts prior to the filing of Appellant’s brief.

Texas Rule of Appellate Procedure 34.6(d) states that:

       If anything relevant is omitted from the reporter's record, the trial court, the
       appellate court, or any party may by letter direct the official court reporter to
       prepare, certify, and file in the appellate court a supplemental reporter's record
       containing the omitted items. Any supplemental reporter's record is part of the
       appellate record.

Texas Rule of Appellate Procedure 34.6(e)(3) provides that when a “dispute arises” concerning

the accuracy of the record after it has been filed in an appellate court, the court may abate the

appeal and submit the dispute to the trial court for resolution. See Contreras v. State, No. 07-04-

0085-CR, 2004 WL 1597973, at *1 (Tex. App. July 15, 2004).




                                                 2
     On January 20, 2015, the undersigned contacted Assistant District Attorney Michael J.

West with respect to this motion. The State does not oppose this motion.

     WHEREFORE, PREMISES CONSIDERED, the Defendant hereby specifically requests

that this Honorable Court: 1) abate this appeal, including the deadline to file Appellant’s brief,

until such time as the record is made complete. In the alternative, the undersigned prays that this

Honorable Court permit the undersigned to file Appellant’s brief after the record has been

supplemented with the missing record transcripts.

                                             Respectfully submitted,



                                             /s/ Carlo D’Angelo
                                             CARLO D’ANGELO
                                             ATTORNEY AT LAW
                                             100 East Ferguson, Suite 1210
                                             Tyler, Texas 75702
                                             Texas State Bar No. 24052664
                                             Tel 903.595.6776
                                             Fax 903.407.4119
                                             carlo@dangelolegal.com
                                             Attorney for Appellant



                                CERTIFICATE OF SERVICE


       I HEREBY CERTIFY that a true and correct copy of the foregoing motion was
furnished to Assistant District Attorney Michael J. West, Office of the District Attorney, 100
North Broadway, 4th Floor, Smith County, Texas, 75702 via electronic filing on this 20 January
2015.


                                             /s/ Carlo D’Angelo
                                             Carlo D’Angelo




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