ACCEPTED
03-14-00701-CR
6628655
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/24/2015 4:27:25 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00701-CR
BARRY PIZZO § IN THE FILED IN
3rd COURT OF APPEALS
§ AUSTIN, TEXAS
VS. § THIRD COURT8/24/2015 4:27:25 PM
§ JEFFREY D. KYLE
STATE OF TEXAS § OF APPEALS Clerk
MOTION TO SUPPLEMENT
APPELLATE RECORD WITH OMITTED EXHIBITS
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes BARRY PIZZO, Appellant in the above styled and numbered
cause, and pursuant to Tex.R.App.Pro. Rule 34.6(d), requests this Court to supplement
the appellate record with omitted audio/video exhibits from trial, and for good cause
would show as follows:
1. This case is on appeal from the 207th Judicial District Court of Comal
County, Texas.
2. The case below was styled the STATE OF TEXAS vs. BARRY PIZZO,
and numbered CR-2013-146.
3. Appellant was convicted of TAMPERING WITH OR FABRICATING
PHYSICAL EVIDENCE, a felony offense.
4. Appellant was assessed a sentence of confinement in the Texas
Department of Criminal Justice for LIFE.
5. Counsel for appellant has reviewed the appellate record, with the
exception of all the trial exhibits and, in particular, the items detailed below, and is
researching potential claims for relief. Through his review, Counsel has determined
that several exhibits have been omitted from the Reporter’s Record.
These items are:
a. State’s Exhibit Number 76—a USB drive which contains material
published to the jury during the course of the trial but only a
photo of the USB drive is currently included in the appellate
record;
b. State’s Exhibit Number 75—a USB drive which contains material
that was published to the jury during the course of the trial but
only a photo of the USB drive is currently included in the
appellate record;
c. State’s Exhibit Number 51—a ‘box’ of photographs was admitted
at trial but only a photo of the ‘box’ of photographs is currently
included in the appellate record;
d. State’s Exhibit Number 52—a ‘box’ of photographs was admitted
at trial but only a photo of the ‘box’ of photographs is currently
included in the appellate record;
e. State’s Exhibit Number 53—a ‘plastic tub’ of photographs and
negatives was admitted at trial but only a photo of the ‘plastic
tub’ of photographs is currently included in the appellate
record;
f. State’s Exhibit Number 54—a ‘banker’s box’ of photographs and
negatives was admitted at trial but only a photo of the ‘banker’s
box’ of photographs is currently included in the appellate
record;
g. State’s Exhibit Number 55—a ‘banker’s box’ of photographs and
negatives was admitted at trial but only a photo of the ‘banker’s
box’ of photographs is currently included in the appellate
record;
h. State’s Exhibit Number 56—a ‘banker’s box’ of photographs and
negatives was admitted at trial but only a photo of the ‘banker’s
box’ of photographs is currently included in the appellate
record;
i. State’s Exhibit Number 57—a ‘box’ of photographs and negatives
was admitted at trial but only a photo of the ‘box’ of photographs
is currently included in the appellate record;
j. State’s Exhibit Number 58—a ‘box’ of photographs and negatives
was admitted at trial but only a photo of the ‘box’ of photographs
is currently included in the appellate record;
k. State’s Exhibit Number 59—a ‘box’ of photographs and negatives
was admitted at trial but only a photo of the ‘box’ of photographs
is currently included in the appellate record;
l. State’s Exhibit Number 60—a ‘box’ of photographs and negatives
was admitted at trial but only a photo of the ‘box’ of photographs
is currently included in the appellate record;
m. State’s Exhibit Number 61—Child Advocacy Center paperwork
was admitted at trial but only a photo of the Child Advocacy
Center paperwork is currently included in the appellate record;
n. State’s Exhibit Number 63—an envelope containing 12 letters
from the appellant was admitted at trial but only a photo of the
envelope containing 12 letters from the appellant is currently
included in the appellate record; and
o. State’s Exhibit Number 66—a folder containing court documents
and newspaper articles was admitted at trial but only a photo of
the folder containing court documents and newspaper articles is
currently included in the appellate record.
6. Accordingly, the record before this Court is incomplete and does not
provide an adequate basis for review of the merits of potential claims. At a minimum,
the omitted evidentiary items are believed to be relevant to the evaluation and
development of claims relating to whether appellant was provided with the effective
assistance of counsel.
7. The omitted exhibits are currently possessed by the Comal County
District Clerk and/or the Official Court Reporter for the 207th Judicial District Court
of Comal County, Texas.
8. In order to facilitate a full review of the appellate record by appellate
counsel and by this Court on appellate review, Appellant requests this Court to direct
the Comal County District Clerk and/or the Official Court Reporter for the 207th
Judicial District Court of Comal County, Texas to expeditiously copy and forward to
this Court for inclusion within the appellate record, complete, accurate, legible and/or
audible copies of the matters depicted in:
a. State’s Exhibit Number 76—a USB drive which contains material
published to the jury during the course of the trial but only a
photo of the USB drive is currently included in the appellate
record;
b. State’s Exhibit Number 75—a USB drive which contains material
that was published to the jury during the course of the trial but
only a photo of the USB drive is currently included in the
appellate record;
c. State’s Exhibit Number 51—a ‘box’ of photographs was admitted
at trial but only a photo of the ‘box’ of photographs is currently
included in the appellate record;
d. State’s Exhibit Number 52—a ‘box’ of photographs was admitted
at trial but only a photo of the ‘box’ of photographs is currently
included in the appellate record;
e. State’s Exhibit Number 53—a ‘plastic tub’ of photographs and
negatives was admitted at trial but only a photo of the ‘plastic
tub’ of photographs is currently included in the appellate
record;
f. State’s Exhibit Number 54—a ‘banker’s box’ of photographs and
negatives was admitted at trial but only a photo of the ‘banker’s
box’ of photographs is currently included in the appellate
record;
g. State’s Exhibit Number 55—a ‘banker’s box’ of photographs and
negatives was admitted at trial but only a photo of the ‘banker’s
box’ of photographs is currently included in the appellate
record;
h. State’s Exhibit Number 56—a ‘banker’s box’ of photographs and
negatives was admitted at trial but only a photo of the ‘banker’s
box’ of photographs is currently included in the appellate
record;
i. State’s Exhibit Number 57—a ‘box’ of photographs and negatives
was admitted at trial but only a photo of the ‘box’ of photographs
is currently included in the appellate record;
j. State’s Exhibit Number 58—a ‘box’ of photographs and negatives
was admitted at trial but only a photo of the ‘box’ of photographs
is currently included in the appellate record;
k. State’s Exhibit Number 59—a ‘box’ of photographs and negatives
was admitted at trial but only a photo of the ‘box’ of photographs
is currently included in the appellate record;
l. State’s Exhibit Number 60—a ‘box’ of photographs and negatives
was admitted at trial but only a photo of the ‘box’ of photographs
is currently included in the appellate record;
m. State’s Exhibit Number 61—Child Advocacy Center paperwork
was admitted at trial but only a photo of the Child Advocacy
Center paperwork is currently included in the appellate record;
n. State’s Exhibit Number 63—an envelope containing 12 letters
from the appellant was admitted at trial but only a photo of the
envelope containing 12 letters from the appellant is currently
included in the appellate record; and
o. State’s Exhibit Number 66—a folder containing court documents
and newspaper articles was admitted at trial but only a photo of
the folder containing court documents and newspaper articles is
currently included in the appellate record.
9. Each of the requested exhibits are essential on appeal to the evaluation
and development of claims relating to whether appellant was provided with the
effective assistance of counsel. It is apparent that many of the exhibits that were
omitted from the appellate record were ‘unnecessarily’ admitted at the trial of the
instant cause. However, in order to evaluate and develop a potential claim of
ineffective assistance of counsel on appeal, each of these exhibits are essential to the
appellate record. See Tex.R.App.Pro. Rule 34.6(c)(3).
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
grant this Motion to Supplement the Appellate Record and for such other and further
relief as the Court may deem appropriate.
Respectfully submitted,
THE PASTRANO LAW FIRM, P.C.
The Old Cotton Exchange Building
202 Travis Street, Suite 307
Houston, Texas 77002
Telephone: 713.222.1100
Facsimile: 832.218.7114
By:____________________________
E. CHEVO PASTRANO
State Bar No. 24037240
chevo@pastranolaw.com
CERTIFICATE OF SERVICE
This is to certify that on August 24, 2015, a true and correct copy of the above
and foregoing document was served on the District Attorney's Office, Comal County,
Texas, via facsimile and/or email.
E. Chevo Pastrano