Opinion
05-22-00965-CR
04-27-2023
EX PARTE ZOHAIB MUHAMMAD IMRAN
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. WX22-90074-Q.
ORDER
ROBERT D. BURNS, III, CHIEF JUSTICE.
Before the Court is the State's April 13, 2023 motion to strike the appendix attached to appellant's brief and appellant's April 21, 2023 response to the State's motion. The State seeks to strike the appendix on the ground that the rules of appellate procedure do not authorize the filing of an appendix in criminal appeals and appellant's brief cites to a copy of the reporter's record in the appendix even though the reporter's record has not been filed in this case. The State requests we strike the appendix and order appellant to request the reporter's record be filed.
Appellant responds that his appeal is "civil in nature" and thus governed by rule of appellate procedure 38.1 which requires him to file an appendix. Appellant complains about difficulty with the trial court, district clerk, and the court reporter in assembling the record. Appellant attaches as an exhibit to his response a set of email exchanges showing what he alleges is evidence that he had difficulty securing the reporter's record and that it was filed on June 17, 2022. Appellant represents he does not know why the designation of the record on appeal was not included in the clerk's record and suggests the Court consider his email exchange as the designation. Appellant further represents he does not know why the reporter's record is not included in the clerk's record filed in this case.
Appellant is challenging the trial court's denial of his post-conviction application for writ of habeas corpus filed under article 11.072 of the code of criminal procedure. Our records show appellant filed his notice of appeal in the trial court on September 14, 2022, and it was filed in this Court on September 26, 2022. On September 26, 2022, the Clerk of the Court issued a notice directing appellant to file a docketing statement within ten days. On September 27, 2022, the Court issued a scheduling order directing the trial court clerk to file the clerk's record by October 12, 2022 and the official court reporter to file either the reporter's record or a letter indicating why no reporter's record had been filed by October 12, 2022.
On October 18, 2022, the official court reporter filed a letter with the Court representing that there were no hearings on the writ application. On October 19, 2022, the clerk's record was filed. The clerk's record does not contain a designation of the record on appeal nor any indication that a reporter's record had been requested. Appellant has never filed a docketing statement that would have revealed the existence of a reporter's record.
On February 17, 2023, appellant filed a brief. Within a large appendix to the brief, appellant filed a copy of the reporter's record from the writ hearing. The reporter's record was prepared by court reporter Marissa Garza. Appellant cites to the appendix copy of the reporter's record in arguing for reversal of the trial court's order denying relief on his habeas application. The State then moved to strike the appendix.
An appeal from the denial of an article 11.072 writ application is a criminal appeal. See Tex. Code Crim. Proc. Ann. arts. 11.072, §8, 44.02; Tex.R.App.P. 31. Accordingly, appellant is not required to file an appendix to his brief. See Tex. R. App. P. 31.1(b), 38.1.
The record in such an appeal consists of the clerk's record and, if necessary for the appeal, the reporter's record. Tex.R.App.P. 34.1. If appellant desires the Court to consider a reporter's record, appellant must request preparation of the reporter's record and either pay the reporter's fee or make arrangements to pay the reporter's fee. Tex.R.App.P. 35.3(b).
Attachments to a brief are not considered part of the record on appeal and may not be considered by an appellate court. See Ex parte Simpson, 136 S.W.3d 660, 668 (Tex. Crim. App. 2004) ("Evidentiary affidavits, letters, transcripts, or other documents relating to a habeas claim should not be attached to motions or briefs, and they shall not, and will not, be considered by this Court."). Thus, it is not sufficient for appellant to attach a copy of the reporter's record to his brief in lieu of filing the reporter's record into the official record. See Brown v. State, 632 S.W.3d 75, 77- 80 (Tex. App.-El Paso 2020, no pet.).
Accordingly, we GRANT the State's motion to the extent we ORDER appellant to file, within TEN DAYS of the date of this order, a formal written request that court reporter Marissa Garza file the reporter's record into the appellate record.
We ORDER court reporter Marissa Garza to file, within THIRTY DAYS of the date of this order, either the reporter's record of the writ hearing held on March 16, 2022, or a status letter explaining why the reporter's record has not been filed.
Because the appendix is part of the electronic document that includes the brief, the Court will not strike the appendix. We caution appellant, however, that if the reporter's record is not filed officially into the appellate record, the Court will order the appeal submitted without a reporter's record and the Court will not consider the reporter's record in the appendix or any issues raised that depend upon a review of the reporter's record. See Brown, 632 S.W.3d at 79.
The State's brief shall be due thirty days after the reporter's record is filed. If no reporter's record is filed, the Court will set a due date for the State to file its brief in the order for the case to be submitted without a reporter's record.
We DIRECT the Clerk to transmit copies of this order to court reporter Marissa Garza and to counsel for the parties.