Ricky Neal Jr. v. State

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 3 4