Fourth Court of Appeals
San Antonio, Texas
September 15, 2017
No. 04-17-00126-CR
Terrell BUSH,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 14-01-00046-CRW
Honorable Stella Saxon, Judge Presiding
ORDER
On September 6, 2017, the State filed a Motion to Abate Appeal, requesting that we abate
this appeal and remand to the trial court for correction of inaccuracies in the clerk’s record, as
well as extend the time for filing the State’s brief. The State’s motion specifically requests that
we order the trial court to determine whether the Pre-Sentence Investigation Report (PSI)
prepared in this case should be included in the appellate record. Appellant has filed a response
opposing abating this appeal and remanding to the trial court. Appellant does not oppose
including the PSI in the appellate record, but points out that the trial court did not consider the
PSI prior to considering appellant’s motion to withdraw his plea.
When relevant items have been omitted from the clerk’s record, “the trial court, the
appellate court, or any party may by letter direct the trial court clerk to prepare, certify, and file
in the appellate record a supplement containing the omitted item.” See TEX. R. APP. P. 34.5(c);
Ruffin v. State, 3 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (court of
appeals ordered appellate record supplemented with PSI report when the existence and contents
of PSI were relevant to appellate complaints); see also Lara v. State, 962 S.W.2d 148, 151 (Tex.
App.—San Antonio 1998, no pet.) (permitting supplementation of appellate record with
defendant’s stipulations which, though not admitted into evidence, were reviewed and
considered by the trial court).
It is undisputed the PSI was not admitted into evidence. Although the record before us
indicates the trial court considered the PSI during the punishment portion of appellant’s trial, the
record does not indicate the trial court considered the PSI prior to ruling on appellant’s motion to
withdraw his plea. Therefore, from the record before us, we cannot ascertain how the PSI is
relevant to appellant’s sole complaint on appeal.
Accordingly, we ORDER the State to file a response on or before October 2, 2017,
informing this court whether the trial court considered the PSI prior to ruling on appellant’s
motion to withdraw his plea and explaining the relevance of the PSI to appellant’s sole complaint
on appeal.
_________________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 15th day of September, 2017.
___________________________________
Keith E. Hottle
Clerk of Court