PD-0483-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/22/2015 1:28:24 PM
Accepted 6/24/2015 10:08:17 AM
No. PD-0483-15 ABEL ACOSTA
CLERK
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
RUBEN TOTTEN
Appellant
v.
THE STATE OF TEXAS,
Appellee
______________________________________________________
Reply to State’s Petion for Discretionary Review
______________________________________________________
From the First Court of Appeals, No. 01-14-00189-CR
reversing the judgment in Cause No. 1365961
from the 228th District Court of Harris County, Texas.
______________________________________________________
Oral Argument Requested
ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
SARAH V. WOOD
Assistant Public Defender
Harris County, Texas
Texas Bar Number 24048898
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
June 24, 2015
Sarah.Wood@pdo.hctx.net
Counsel for Appellant
Comes Now, Ruben Totten, and files this Reply to the State’s Petition for Discretionary
Review pursuant to Texas Rule of Appellate Procedure 68.9.
The State Prosecuting Attorney (“SPA”) has filed a petition for discretionary
review in this case that fails to comport with established procedure.
First, the petition improperly urges this Court to consider an affidavit outside the
record that it has attached as an appendix. As Professors Dix and Schmolesky note, “It
is clear that informal efforts to put material not in the record before an appellate court
are neither proper nor effective.” 43B Tex. Prac., Criminal Practice And Procedure §
55:62 (3d ed.).
In Hill v. State, the State sought abatement and remand from the Court of
Criminal Appeals regarding some discrepancy with the transcript. This Court refused
to consider the request, holding, “Although the State relies on an affidavit attached to
its motion to abate, that affidavit is not part of the appellate record and may not be
considered.” Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App. 2002).
Second, the SPA’s petition fails to explicitly set forth “reasons for granting
review” and therefore does not comply with Texas Rule of Appellate Procedure 68.4(h)
requiring petitions to “amplify” the reasons for review under Rule 66.3. As this Court
has stated, “Manifestly, the presentation of reasons for review must focus on the
opinion of the court of appeals and its impact on our jurisprudence.” Hunter v. State,
954 S.W.2d 767, 768-69 (Tex. Crim. App. 1995). The SPA’s petition fails to do so.
Moreover, the SPA’s primary “reason”—that the transcript is allegedly
inaccurate—does not properly fall under any of the six “Reasons for Granting Review”
set forth in Rule 66.3. Discretionary review is limited in scope and its purpose is to
review the decisions of the courts of appeals. Tex. R. App. Proc. 68.1; Stringer v. State, 241
S.W.3d 52, 59 (Tex. Crim. App. 2007). “This court will not consider a ground for review
that does not implicate a determination by the court of appeals of a point of error
presented to that court in an orderly and timely fashion.” Bynum v. State, 767 S.W.2d
769, 776 (Tex. Crim. App. 1989); Lambrecht v. State, 681 S.W.2d 614 (Tex. Crim. App.
1984). The State asks this Court to side-step the work of the Court of Appeals.
Third, the SPA should be estopped from complaining about any alleged defect
in the record at this very late hour. As Professors Dix and Schmolesky observed,
“Appellate courts' power to abate is not general authority in the appellate judiciary to
give appellants a second chance to do what they failed to do when the case was before
the trial court.” 43B Tex. Prac., Criminal Practice And Procedure § 56:227 (3d ed.).
Fairness dictates that this principle should be applied with equal force against the State
in this case.1
The record was filed in March of 2014. The State never mentioned the possibility
of an inaccuracy in the transcript. In fact, as the Court of Appeals noted, the State in its
1It is interesting to note that the State also argues appellant failed to apprise the courts below
of his objection to the jury charge. The State wishes to penalize the defendant for the adequacy
of his objection made seconds after the error while simultaneously arguing that its objection,
untimely by more than a year, should nonetheless be humored.
brief “does not respond directly to appellant’s argument…” (Op. at 5). The Harris
County District Attorneys Office did not elect to raise the transcript issue in the court
of appeals and neither does it raise the issue now, despite having litigated the case from
the beginning.
Furthermore, the proper procedure for correcting a transcript is laid out in Rule
34.6(e) and it does not contemplate the issue being raised in this Court since it specifies
only that the court of appeals may remand the case to the trial court to resolve a record
dispute. As three judges of this Court have noted, “Rule 34.6(e) should not be applied
to provide appellant with another opportunity to do what he should have done well
before now…” Amador v. State, 221 S.W.3d 666, 680 (Tex. Crim. App. 2007) (Hervey
dissenting, in which Keller and Keasler joined). The State failed to avail itself of the
remedy provided in 34.6 and now it is quite untimely.
Moreover, the State does not have a due process right or a fundamental liberty
interest that could weigh in favor of sacrificing judicial economy and procedural finality.
The State’s remedy, at this point, is to simply elect to re-prosecute Mr. Totten for the
possession of drugs, for which he was previously sentenced to 25 years in prison. The
reversal from the Court of Appeals is not the end of this case and it does not release
Mr. Totten. If the State feels that justice requires Mr. Totten to serve the minimum 25
years in prison for the 1.2 grams of crack found in his shoe, then it can simply try him
again.
This Court has generally propounded a policy of restraint in granting PDRs
because otherwise it “only tends to undermine the respective roles of this and the
intermediate courts without significant contribution to the criminal jurisprudence of the
State.” Arcila v. State, 834 S.W.2d 357, 361 (Tex. Crim. App. 1992), overruled on other
grounds by Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). The unpublished
opinion in this case is fine as it stands. As this Court has noted of other cases, “It fairly
addresses the issues raised on appeal, evaluates those issues according to settled rules
of law, accounts for all evidence relevant to the questions presented, and reaches a
conclusion adequately supported by the law and the evidence.” Id. The State’s petition
should be denied.
Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas
/s/ Sarah V. Wood
SARAH V. WOOD
Assistant Public Defender
Harris County Texas
1201 Franklin, 13th Floor
Houston Texas 77002
(713) 368-0016 (phone)
(713) 368-9278 (fax)
State Bar Number 24048898
Sarah.Wood@pdo.hctx.net
CERTIFICATE OF SERVICE AND COMPLIANCE
This is to certify that this filing has 968 words and that a copy of the foregoing
reply to the State’s petition for discretionary review has been served on the District
Attorney of Harris County, Texas, by the efile service and to the State Prosecuting
Attorney.
/s/ Sarah V. Wood
SARAH V. WOOD