ACCEPTED
03-15-00539-CR
7801300
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/12/2015 2:10:53 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00539-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 11/12/2015 2:10:53 PM
JEFFREY D. KYLE
Clerk
*********
MATTHEW DIAZ
APPELLANT
VS.
THE STATE OF TEXAS
********
ON APPEAL FROM THE 426th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause no. 72269
******
STATE’S MOTION FOR LEAVE
TO SUPPLEMENT THE RECORD
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Texas 76513
(254) 933-5215
FAX (254) 933-5704
SBA No.15200000
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TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW, the undersigned Attorney representing the State of Texas
in this cause and respectfully moves the Court to grant leave to supplement
the record, and in support hereof, would respectfully show the Court as
follows:
I.
The Appellant, Matthew Diaz, has filed his Brief alleging, in part, that the
trial court failed to enter an affirmative finding of the use of a deadly weapon
as alleged in the indictment.
II.
The disposition of this case in the trial court involved an initial hearing
on the Appellant’s plea of guilty, a hearing on the State’s First Amended
Motion to Adjudicate, and a punishment hearing. In his Brief at footnote 12 on
page 15 the Appellant notes that the record of the original plea hearing is not
“presently part of the record”. The undersigned counsel for the State has
examined the Reporter’s Record and discovered that, while the hearing on the
motion to adjudicate is duplicated in that record, there is no record of the
guilty plea proceeding in that Reporter’s Record. The hearing upon the
Appellant’s plea of guilty was conducted on March 31, 2015.
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Because the Appellant has raised an issue that will need to be evaluated
in the light of all of the hearings before the trial court in this case in order to
determine whether or not the trial court’s finding the Appellant guilty “as
charged in the indictment” and the court also references the finding regarding
the use of a deadly weapon at the plea of guilty at the adjudication hearing
(RR2-15), it is necessary to have the record of the plea hearing included
within the record in order to resolve the issue on appeal.
III.
The undersigned counsel for the State has contacted Peggy A. Morris,
official court reporter for the trial court and been advised that apparently the
Reporter’s Record of the hearing upon the Appellant’s plea of guilty has not
been prepared or filed.
WHEREFORE, premises considered, the State respectfully prays this
Court to grant leave to supplement the record in this cause and to order the
official court reporter to prepare and file the Reporter’s Record of the plea
hearing conducted in this case on March 31, 2015 and file it of record with this
Court.
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Respectfully Submitted,
HENRY GARZA
District Attorney
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
SBA No. 15200000
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this State’s Motion for
Leave to Supplement the Record was served upon John A. Kuchera, counsel for
Appellant, by Email addressed to him at johnkuchera@210law.com, on this
the 12th day of November, 2015.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Motion is in compliance with Rule 9 of
the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 408 words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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