James Friend v. State

06-15-00099-CR | Tex. Crim. App. | Dec 14, 2015

ACCEPTED 06-15-00099-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/14/2015 3:47:54 PM DEBBIE AUTREY CLERK NO. 06-15-00099-CR IN THE COURT OF APPEALS FILED IN 6th COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXASTEXARKANA, TEXAS AT TEXARKANA 12/14/2015 3:47:54 PM DEBBIE AUTREY JAMES FRIEND Clerk Appellant v. STATE OF TEXAS Appellee APPELLANT’S SECOND MOTION TO SUPPLEMENT RECORD ON APPEAL AND MOTION TO STAY BRIEFING DEADLINES TO THE HONORABLE COURT OF APPEALS: COMES NOW the Appellant, James Friend, by and through counsel of record, Jason Horton, and for his Second Motion to Supplement Record on Appeal and Motion to Stay Briefing Deadlines states as follows: I. On November 4, 2015, this Court ordered the trial court to conduct a hearing to determine whether one or more of the following documents were filed with the trial court: 1. Defendant’s Motion to Limit Jury Argument of State (referenced in Reporter’s Record (RR) Volume 4, p. 33); James Friend v. State of Texas Appellant’s Second Motion to Supplement Record on Appeal and Motion to Stay Briefing Deadlines 6th Court of Appeals No. 06-15-00099-CR Page 1 of 5 2. Defendant’s Motion in Limine (referenced in RR Volume 4, pp. 4-5; eight (8) separate paragraphs); 3. Defendant’s Motion to Invoke Husband-Wife Confidential Communication Privilege With Authorities and Argument (referenced in RR Vol. 4, pp. 14-33 and Vol. 5, pp. 5-14); and 4. Defendant’s Brief in Support of Admission of Certain Bad Acts of the Decedent was made Court’s Exhibit No. 1 and not included in the Clerk’s Record. (V10 RR at Court’s Exhibit No. 1). On November 13, 2015, the trial court conducted a hearing in compliance with this Court’s November 4, 2015 order. During that hearing, the trial court formally marked as filed items 1 and 3 above, while also explaining that item number 4 was not filed of record and instead made a record exhibit. (Supp. RR pp. 4-12) However, although the trial court addressed item number 2, there appears to have been some confusion as to exactly what is referenced in item number 2. In Volume 4, page 5, of the original reporter’s record, the trial court references “Defendant’s Motion in Limine, and it’s one page with eight items on there. Are we all looking at the same one?” Appellant’s trial counsel indicated that the parties agreed to items 4-8, and the remaining items 1-3 remained in dispute. (V4 RR p.5) James Friend v. State of Texas Appellant’s Second Motion to Supplement Record on Appeal and Motion to Stay Briefing Deadlines 6th Court of Appeals No. 06-15-00099-CR Page 2 of 5 The trial court heard argument from both parties on pages 6-13, and overruled Appellant’s request the following morning. (V5 RR p.4) Although this Motion in Limine is referenced during the trial court’s November 13, 2015 supplemental record hearing, the Motion that was made part of the supplemental record is entitled “Defendant’s Motion in Limine to Prevent the State from Using Specific Hypothetical Facts to Commit the Venire to an Answer.” (Supp. CR pp.24-26) However, this Motion was previously filed of record on March 9, 2015, and already included in the original clerk’s record. (CR 75-77) The subject 8- paragraph “Motion in Limine” is not part of the original or supplemental clerk’s records. II. Appellant requests that this Court grant his Second Motion to Supplement Record on Appeal and remand this case to the trial court to address the Motion in Limine referenced herein. In addition, Appellant requests that the Court stay the current briefing deadlines, thereby allowing Appellant at least thirty (30) days from the date the supplemental record is filed to file his Brief. James Friend v. State of Texas Appellant’s Second Motion to Supplement Record on Appeal and Motion to Stay Briefing Deadlines 6th Court of Appeals No. 06-15-00099-CR Page 3 of 5 III. This motion is made in good faith and not for purposes of delay. Without additional time, Appellant will be denied effective assistance of counsel on appeal, to which he is entitled. Respectfully submitted, JASON HORTON LAW FIRM 114 West Broad Street Texarkana, Texas 75501 Mail to: P.O. Box 1596 Texarkana, Texas 75504 T- (903) 792-2000 F- (903) 792-2100 BY: /s/ Jason Horton Jason Horton jason@jasonhortonlaw.com Texas Bar Number 24041130 ATTORNEY FOR APPELLANT James Friend v. State of Texas Appellant’s Second Motion to Supplement Record on Appeal and Motion to Stay Briefing Deadlines 6th Court of Appeals No. 06-15-00099-CR Page 4 of 5 CERTIFICATE OF SERVICE On this 14th day of December, 2015, I hereby certify that a true and correct copy of the foregoing instrument will be served on the Bowie County District Attorney’s Office, according to the Texas Rules of Appellate Procedure and the rules of this Court. /s/ Jason Horton Jason Horton James Friend v. State of Texas Appellant’s Second Motion to Supplement Record on Appeal and Motion to Stay Briefing Deadlines 6th Court of Appeals No. 06-15-00099-CR Page 5 of 5