ACCEPTED
03-14-00701-CR
7046512
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/22/2015 8:15:59 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00701-CR
BARRY PIZZO § IN THE FILED IN
3rd COURT OF APPEALS
§ AUSTIN, TEXAS
VS. § THIRD COURT9/22/2015 8:15:59 PM
§ JEFFREY D. KYLE
STATE OF TEXAS § OF APPEALS Clerk
MOTION TO SUPPLEMENT
APPELLATE RECORD WITH OMITTED TRANSCRIPTIONS
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 transcriptions of trial proceedings, 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 partial appellate record submitted
to this Court. Through his review, Counsel has determined that a speedy trial
violation occurred and a motion to set aside the indictment due to the speedy trial
violation was denied by the trial court. (RR V 22, 24).
In arguing against the motion to set aside the indictment due to the speedy trial
violation, the State made several allegations regarding the cause for delay. (RR V 11).
Specifically, the State addressed the cause for the delays of the May 2014 trial setting
and the August 2014 trial setting. (RR V 11).
The instant cause was set for trial four separate times. (RR V 6). See also
Exhibit A.
The attached exhibit details the instant matter being set for trial on May 27,
2014. No transcription of announcements made in connection with that trial setting
are part of the present record.1
The attached exhibit details the instant matter being set for trial on July 7, 2014.
No transcription of announcements made in connection with that trial setting are
part of the present record.
The attached exhibit details the instant matter being set for trial on August 18,
2014. Volume 4 of the present reporter’s record is a transcription of the
announcements made in connection with that trial setting.
The attached exhibit details the instant matter being set for trial on September
1
In a separate instance, the State represented that evidence was not provided to the Defense due to
its contents including child pornography. (RR V 21). Later in the record, it was revealed that the
evidence in question did not contain child pornography. (RR IV 90). Accordingly, while counsel
29, 2014. Volume 5 of the present reporter’s record is a transcription of the
announcements made in connection with that trial setting.
6. Accordingly, the record before this Court is incomplete and does not
provide an adequate basis for review of the merits of potential claims, in particular a
claim regarding a speedy trial violation. 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 his right to a speedy trial.
7. The omitted recordings/transcriptions are currently possessed by 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 Official Court Reporter for the 207th Judicial District Court of Comal County,
Texas to expeditiously forward to this Court for inclusion within the appellate record
transcriptions of any and all settings had in the instant cause to include, but not limited
to, the announcements made in the trial court of the May 27, 2014 trial setting and the
July 7, 2014 trial setting. Additionally, appellant would request the appellate record
be supplemented with transcriptions of each and every setting in the trial court in the
instant matter.
9. Each of the requested transcriptions are essential on appeal to the
for appellant would accept the State’s version of the announcements made in connection with the
evaluation and development of claims relating to whether appellant was provided with
a speedy trial.
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
Counsel for Appellant
May 2014 trial setting, a transcription of the announcements can verify those events.
CERTIFICATE OF SERVICE
This is to certify that on September 16, 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
9/14/15, 3:53 PM
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REGISTER OF ACTIONS
CASE NO. CR2013-146
State of Texas vs. BARRY LOUIS PIZZO § Case Type: Adult Felony
§ Date Filed: 04/10/2013
§ Location: 207th District Court
§
§
PARTY INFORMATION
Attorneys
Defendant PIZZO, BARRY LOUIS Male White EUSEBIO CHEVO
725 SAN GABRIEL LOOP DOB: 07/19/1957 PASTRANO
NEW BRAUNFELS, TX 78132 5' 11", 185 lbs Court Appointed
832-392-6100(W)
ATANACIO CAMPOS
Court Appointed
830-620-1515(W)
JAMES PEPLINSKI
Court Appointed
210-416-1129(W)
State State of Texas Other
3005 W San Antonio St
New Braunfels, TX 78130
CHARGE INFORMATION
Charges: PIZZO, BARRY LOUIS Statute Level Date
1. TAMPERING WITH PHYSICAL EVIDENCE-CT.I 37.09(a) PC Third Degree Felony 02/15/2013
2. TAMPERING WITH PHYSICAL EVIDENCE-CT.II 37.09(a) PC Third Degree Felony 02/15/2013
EVENTS & ORDERS OF THE COURT
DISPOSITIONS
09/29/2014 Plea (Judicial Officer: Boyer, R. Bruce)
1. TAMPERING WITH PHYSICAL EVIDENCE-CT.I
Not Guilty
2. TAMPERING WITH PHYSICAL EVIDENCE-CT.II
Not Guilty
10/07/2014 Disposition (Judicial Officer: Boyer, R. Bruce)
1. TAMPERING WITH PHYSICAL EVIDENCE-CT.I
Jury Conviction & Sentenced
2. TAMPERING WITH PHYSICAL EVIDENCE-CT.II
Jury Conviction & Sentenced
10/07/2014 Life Sentence (Judicial Officer: Boyer, R. Bruce)
1. TAMPERING WITH PHYSICAL EVIDENCE-CT.I
Confinement to Commence 10/07/2014
Life, Texas Dept. of Criminal Justice, Texas Department of Criminal Justice
CT. I AND II TO RUN C/C COURT COST - $1028.00
2. TAMPERING WITH PHYSICAL EVIDENCE-CT.II
Confinement to Commence 10/07/2014
Life, Texas Dept. of Criminal Justice, Texas Department of Criminal Justice
CT. I AND II TO RUN C/C COURT COST - $1028.00
OTHER EVENTS AND HEARINGS
02/21/2013 SEARCH WARRANT
03/07/2013 ARREST WARRANT (Judicial Officer: Rust, Mike )
03/07/2013 MAGISTRATE WARNING (Judicial Officer: Salyers, Ellen )
03/07/2013 PAUPERS AFFIDAVIT (OCA) (Judicial Officer: Salyers, Ellen )
03/15/2013 MOTION FOR EXAMING TRIAL
03/19/2013 NOTICE OF HEARING
04/03/2013 REQUEST FOR SUBPOENA
04/03/2013 SUBPOENA ISSUED
04/10/2013 Indictment (OCA)
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04/10/2013 ORDER ON CONDITIONS OF BOND (Judicial Officer: Robison, Jack )
04/12/2013 CAPIAS ISSUED (Judicial Officer: Robison, Jack )
04/12/2013 PRECEPT TO SERVE ISSUED
04/13/2013 MAGISTRATE WARNING
04/23/2013 NOTICE OF HEARING
05/03/2013 MOTION FOR EXAMING TRIAL
05/03/2013 Motion
05/03/2013 MOTION TO SUPPRESS
05/03/2013 MOTION FOR DISCOVERY AND INSPECTION
05/03/2013 MOTION FOR INVESTIGATOR
05/03/2013 DEFENDANT'S REQUEST
05/03/2013 Motion
05/16/2013 Arraignment (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
05/16/2013 ORDER APPOINTING INVESTIGATOR (Judicial Officer: Waldrip, Dib )
05/21/2013 NOTICE OF HEARING
05/31/2013 REQUEST FOR SUBPOENA
06/03/2013 SERVICE
06/03/2013 Subpoena
GROFF, RICHARD Served 06/04/2013
06/13/2013 Pre Trial (Evidentary) (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
06/17/2013 NOTICE OF HEARING
07/11/2013 Pre Trial (Evidentary) (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
07/17/2013 NOTICE OF HEARING
07/17/2013 REQUEST FOR SUBPOENA
07/17/2013 SERVICE
07/17/2013 Subpoena
GROFF, RICHARD Served 07/18/2013
08/08/2013 Pre Trial (Evidentary) (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
08/08/2013 MOTION TO QUASH
08/08/2013 MOTION TO SUPPRESS
08/08/2013 AFFIDAVIT
08/08/2013 MOTION TO QUASH
08/09/2013 NOTICE OF HEARING
08/26/2013 Pre Trial (Evidentary) (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
08/30/2013 NOTICE OF HEARING
10/17/2013 Pre Trial (Evidentary) (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
11/07/2013 Pre Trial (Evidentary) (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
11/07/2013 AMENDED ORDER
11/12/2013 MOTION TO PAY COURT APPOINTED ATTORNEY
11/13/2013 ORDER TO PAY COURT APPOINTED ATTORNEY (Judicial Officer: Boyer, R. Bruce )
12/03/2013 Pre-Trial Hearing (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
01/16/2014 Pre-Trial Hearing (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
02/11/2014 Pre Trial (Evidentary) (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
03/03/2014 MOTION TO DISMISS
03/10/2014 Pre Trial (Evidentary) (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
04/10/2014 Pre Trial (Evidentary) (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
05/06/2014 REQUEST FOR SUBPOENA
05/09/2014 SERVICE
05/09/2014 Subpoena
ZANCA, LYNN MARIE Unserved
05/09/2014 Subpoena
WAHRMUND, TREY Served 05/16/2014
ORTIZ, JIMMY Served 05/19/2014
05/27/2014 CANCELED Jury Trial (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Re-Set
06/09/2014 REQUEST FOR SUBPOENA
06/18/2014 SERVICE
06/18/2014 Subpoena
ZANCA, LYNN MARIE Unserved
06/26/2014 MOTION TO QUASH (Judicial Officer: Boyer, R. Bruce )
07/07/2014 Jury Trial (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Reset
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07/24/2014 REQUEST FOR SUBPOENA
07/24/2014 SERVICE
07/24/2014 Subpoena
ZANCA, LYNN MARIE Served 07/29/2014
Returned 08/01/2014
08/18/2014 CANCELED Jury Trial (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Re-Set
09/03/2014 REQUEST FOR SUBPOENA
09/03/2014 SERVICE
09/03/2014 Subpoena
ZANCA, LYNN MARIE Served 09/15/2014
09/03/2014 Subpoena
LUNA, RENE Served 09/09/2014
09/19/2014 Motion For Speedy Trial
09/19/2014 MEMORANDUM (Judicial Officer: Boyer, R. Bruce )
09/22/2014 REQUEST FOR SUBPOENA
09/22/2014 SERVICE
09/22/2014 Subpoena
SCHULLE, CANDACE HUGHES Returned Unserved 10/07/2014
Returned 10/07/2014
09/23/2014 REQUEST FOR SUBPOENA
09/23/2014 SERVICE
09/23/2014 Subpoena
STOVER, KELLY Returned Unserved 09/29/2014
Returned 09/29/2014
CRAIN, DENNIS Served 09/23/2014
09/29/2014 Jury Trial (9:00 AM) (Judicial Officers Steel, Gary, Robison, Jack, Ramsay, Charles, Waldrip, Dib)
Result: Convicted
09/29/2014 JURYLIST (Judicial Officer: Boyer, R. Bruce )
09/30/2014 REQUEST FOR SUBPOENA
09/30/2014 SERVICE
09/30/2014 Subpoena
ZANCA, LYNN MARIE Returned Unserved 10/08/2014
Returned 10/08/2014
10/07/2014 MOTION IN LIMINE
10/07/2014 DEF'S ELECTION AS TO PUNISHMENT
10/07/2014 AGREEMENT TO WAIVE SEQUESTRATION
10/07/2014 CHARGE OF THE COURT
10/07/2014 CHARGE ON PUNISHMENT (Judicial Officer: Boyer, R. Bruce )
10/07/2014 CERTIFICATE FOR RIGHT TO APPEAL (Judicial Officer: Boyer, R. Bruce )
10/07/2014 WRIT
10/07/2014 RECEIPT FOR EXHIBITS
10/07/2014 JUDGMENT (Judicial Officer: Boyer, R. Bruce )
10/08/2014 COURT COST
10/08/2014 MOTION TO PAY COURT APPOINTED ATTORNEY (Judicial Officer: Boyer, R. Bruce )
10/16/2014 ORDER TO PAY COURT APPOINTED ATTORNEY (Judicial Officer: Boyer, R. Bruce )
10/21/2014 WITNESS FEE CLAIM (Judicial Officer: Boyer, R. Bruce )
10/31/2014 STATEMENT OF FACT FORM
11/04/2014 MOTION FOR NEW TRIAL (Judicial Officer: Boyer, R. Bruce )
11/04/2014 NOTICE OF APPEAL (Judicial Officer: Boyer, R. Bruce )
11/04/2014 Motion (Judicial Officer: Boyer, R. Bruce )
11/04/2014 WRITTEN DESIGNATION
11/04/2014 REQUEST FOR PREPERATION OF REPORTER'S RECORD
11/05/2014 APPEAL INFORMATION SHEET
11/06/2014 ORDER (Judicial Officer: Boyer, R. Bruce )
11/06/2014 ORDER FOR FREE REPORTER'S RECORD
11/06/2014 ORDER (Judicial Officer: Boyer, R. Bruce )
11/07/2014 NOTICE OF APPEARANCE
11/18/2014 PEN PACKET DOCUMENT CHECKLIST
11/18/2014 COMMITMENT
12/01/2014 WITNESS FEE CLAIM (Judicial Officer: Boyer, R. Bruce )
02/17/2015 LETTER
06/05/2015 MOTION TO WITHDRAW
06/05/2015 ORDER (Judicial Officer: Boyer, R. Bruce )
06/08/2015 ORDER APPOINTING ATTORNEY ON APPEAL (Judicial Officer: Boyer, R. Bruce )
06/10/2015 LETTER
06/11/2015 LETTER
06/12/2015 LETTER
08/26/2015 LETTER
08/28/2015 LETTER
FINANCIAL INFORMATION
Defendant PIZZO, BARRY LOUIS
Total Financial Assessment 14,698.00
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Total Payments and Credits 0.00
Balance Due as of 09/14/2015 14,698.00
11/19/2013 Transaction Assessment 950.00
10/08/2014 Transaction Assessment 1,028.00
10/16/2014 Transaction Assessment 12,720.00
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