NO. PD-0347-15 COURT OF CRIMINAL APPEALS
IN THE MAY 04 2015
COURT OF CRIMINAL APPEALS
Abel Acosta, Clerk
AUSTIN, TEXAS
FILED IN
MICHAEL WAYNE BOHANNAN COURT OF CRIMINAL APPEALS
v. NAY 04 2015
THE STATE OF TEXAS
Abel Acosta, Clerk.
From Appeal No. 09-13-00090-CR
TRIAL CAUSE NO. 12-10-10953-CR
Montgomery County
PETITIONER'S MOTION TO SUPPLEMENT THE APPELLATE RECORD
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Petitioner Bohannan, pro se, and moves the Court
for an order to the trial, court clerk to supplement the appellate
record. In support thereof, would show the following:
HISTORY
On November 21, 2013, the appellate court declined to
consider Bohannan's pro se Motion to Intervene and informed him
the court would not even consider his pro se submissions while
he was being represented by imposed counsel. On October 29, 2014,
the appellate court handed down its Memorandum Opinion,.and
imposed counsel notified Bohannan of same on November 4, 2014.
By November 17, 2014 letter, counsel informed Bohannan that his
imposition had ceased in the appeal. By letters dated December
5, 2014, Bohannan requested the trial court clerk and court
reporter supplement the appellate record, detailing the items
needed to be included in those supplements, so the court would
have an accurate and complete record for review when it
considered Bohannan's rehearing request. Bohannan forwarded
copies of those.letters to the appellate court clerk, on December
5th, as well.
On December 12, 2014, under the prison mailbox rule, Bohannan
filed his motion for rehearing, wherein he noted the attempts he
was making to have the appellate record supplemented.
On December 22, 2014, having received no response from
either the trial court clerk or reporter, Bohannan wrote them
again, providing them a second copy of his original December 5th
request.
On January 8, 2015, the appellate court overruled Bohannan's
rehearing motion.
By letter of January 12, 2015, the reporter informed Bohannan
there was no hearing on the date he had requested a transcript
for. Realizing he had made a typographical error, Bohannan wrote
the reporter back on January 16, 2015, informing her of the
correct date.
On February 3, 2015, Bohannan again wrote the trial court
clerk requesting the supplemental clerk's record be filed.
On February 7, 2015, Bohannan recevied a letter from the
reporter informing Bohannan she had "been out of the country"
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but would prepare and file the requested supplemental reporter's
record.
On February 13, 2015, under the prison mailbox rule, Bohannan
filed his Rule 34.5(c)(1) motion to supplement the appellate
record in the appellate court.
On February 20, 2015, without ruling on Bohannan's motion to
supplement, the appellate court overruled Bohannan's motion for
rehearing en banc. Later that same day, the appellate clerk filed
the supplemental reporter's record.
As of the date of this motion, the trial court clerk has
continued to refuse to produce the supplemental clerk's record.
ARGUMENT
Bohannan has repeatedly requested the trial court clerk
supplement the appellate record, pursuant to Fed.R.App.Proc.
34.5(c)(1), detailing the limited records needed. Despite those
requests, the clerk has refused to do so. As such., Bohannan is
forced to have to move this Court to order production of the
withheld records.
Bohannan has been very careful to limit his supplemental
requests to only those withheld records relevant to the issues
before the Court.
Bohannan has raised claims involving his being denied the
right of self-representation, by the trial court, and that court's
refusal to rule on his pro se motions.
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The appellate court relied upon an October 2, 2012 letter
from Bohannan to the trial court, with a stamped October 30, 2012
file date upon it* in denying Bohannan's claims; Opinion @ 14;
CR 14-19.
Bohannan requested the following records from the trial court
clerk:
1) Criminal Notes from Cause No. 11-04-04462-CR;
2) Criminal Notes from Cause No. 12-10-10953-CR;
3) letter and cover sheet to clerk filed on October 9, 2012, in
Cause No. 11-04-04462-CR; and
4) letter filed by the trial court on October 30, 2012 in Cause
No. 11-04-04462-CR.
These records prove that the record the appellate court relied
upon to deny Bohannan's claims was (1) filed in a?, cause that was
not before the court on appeal and (2) that the letter had been
fraudulently altered by someone in the trial court clerk's office.
II
Bohannan has raised claims involving his being denied the
right of self-representation in this appeal by Judge Seller's
March 20. 2014 refusal to allow imposed appellate counsel to
withdraw from this appeal. The appellate court did not address
Bohannan's timely appeal of that March 20th Order.
Bohannan requested the following records from the trial
court clerk.:
1) March 12, 2014 Motion To Withdraw;
2) March 20, 2014 Order denying Motion To Withdraw;
3) Trial court's notice/certification of Bohannan1s right to
appeal the March 20, 2014 Order;
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4) April 18, 2014 Notice of Appeal (filed on April 24th); and
5) June 5, 2014 letter to Susie Herman, Clerk, inquiring about
the status of the appeal of the March 20th Order.
These records prove the trial .court denied Bohannan's request to
represent himself in this appeal, after imposed counsel informed
that court that Bohannan had asserted that right; and they will
shiow that Bohannan timely appealed that denial,. The records will
show that the trial court failed to notify the appellate court of
that appeal and/or that the appellate court failed to rule on
Bohannan's appeal of that denial.
CONCLUSION
The trial court clerk's refusal to produce the requested
supplemental records have, and will continue to, result in the
appellate courts making their determinations on an incomplete and
fraudulently altered record.
WHEREFORE, PREMISES CONSIDERED, Bohannan prays this Honorable
Court grant this motion and order the trial court clerk to
promptly supplement the appellate record with those records
requested in Bohannan's December 5, 2014 letter, and that this
Court delay consideration of Bohannan's request for PDR until
that supplemental record has been obtained and considered.
Respectfully submitted,
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Michael W. Bohannan #1841746
9601 Spur 591
Amarillo, Texas 79107-9606
806-381-7080
UNSWORN DECLARATION
I, Michael Bohannan, being presently imprisoned in Potter
County, Texas, and under penalty of perjury, do hereby affirm
that the foregoing facts are true and correct.
on this the 2-~lfh day of Apr* I , 2015.
Petitioner/Affiant
CERTIFICATE OF MAILING AND SERVICE
I, Michael Bohannan, being presently imprisoned in Potter
County, Texas, and. under penalty of perjury, do hereby affirm
that I have delivered a copy, of this motion, to a TDCJ. official,
first-class postage prepaid, for mailing to:
Clerk of the Court
Texas Court of Criminal Appeals
P.O. Box 12308, Capitol Station
Austin, Texas 787/11-2308
William Delmore, Asst. Dist. Att'y
207 W. Phillips Street
Conroe, Texas 77301
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State Prosecuting Attorney
P.O. Box 12405, Capitol Station
Austin, Texas 78 711-2405
on this the 27/-^ day of (\t> r. \ , 2015,
Petitioner/Affiant
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Bohannan, Michael Wayne
Combined Opinion