Opinion
No. 10-08-00189-CR
Order issued and filed October 15, 2008. DO NOT PUBLISH.
Appealed from the 21st District Court Burleson County, Texas, Trial Court No. 11136-B.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray dissenting).
ORDER
Anthony Charles Graves is appealing the trial court's denial of his pretrial petition for writ of habeas corpus, which seeks to bar the State from retrying him for capital murder on double-jeopardy and due-process grounds.
On July 23, 2008, we received a supplemental clerk's record consisting of the following reporter's record excerpts from Graves' first trial:
1. Master Index Volume 1 of 48 of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
2. Master Index Volume 2 of 48 — Chronological — Alphabetical — Exhibit — from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
3. Volume 34 of 48 — Motions — Guilt/Innocence — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
4. Volume 35 of 48 — Guilt/Innocence — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
5. Volume 36 of 48 — Guilt/Innocence — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
6. Volume 37 of 48 — Guilt/Innocence — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
7. Volume 38 of 48 — Guilt/Innocence — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
8. Volume 39 of 48 — Guilt/Innocence — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
9. Volume 40 of 48 — Guilt/Innocence — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
10. Volume 41 of 48 — Guilt/Innocence — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
11. Volume 42 of 48 — Guilt/Innocence — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
12. Volume 43 of 48 — Punishment — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;
13. Volume 44 of 48 — Punishment — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994; and
14. Volume 45 of 48 — Motion for New Trial — of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994.In a July 30 letter, we ordered the parties to advise us by August 6 why this supplemental clerk's record should be filed in this cause. The State responded:
The State requested the supplement of the record. . . . It is believed by the State that the trial record is important to the Court of Appeals in analyzing the applicant's due process and due course of law complaints. . . .
In other words, the State believes the trial record is important for the Court to resolve the applicant's due process claim.
Graves responded and requested that we file the supplemental clerk's record, asserting:
The Court should consider the supplemental clerk's record because it shows that at Graves' first trial the State intentionally used perjured testimony to avoid a likely acquittal, and that Double Jeopardy has attached.Graves then quotes from the supplemental clerk's record testimony that supports his assertion. The State's Brief, Graves' Reply Brief, and Graves' Surreply Brief all cite to and quote from the supplemental clerk's record. Also, in his petition for writ of habeas corpus, Graves requested the trial court to take judicial notice of all the proceedings in the cause and in both the state and federal writ proceedings. Based on the foregoing, we order the Clerk of this Court to file the proposed supplemental clerk's record. See TEX. R. APP. P. 34.5(c)(1, 3).