Opinion
No. 06-15-00099-CR
01-04-2016
JAMES FRIEND, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court Bowie County, Texas
Trial Court No. 14F0439-102 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
James Friend appeals from his conviction of murder. Friend's appellate counsel has filed a second motion to supplement the record on appeal and to stay the appellate briefing deadlines. This Court previously entered an abatement order on November 4, 2015, for the purpose of determining the status of three motions and one brief presented to the trial court on Friend's behalf, but which were not made a part of the appellate record: (1) defendant's motion to limit jury argument, (2) defendant's motion in limine, (3) defendant's motion to invoke husband-wife confidential communication privilege, and (4) brief in support of admission of certain bad acts of the decedent.
On November 13, 2015, the trial court conducted a hearing in compliance with this Court's November 4 order. As a result of that hearing, a supplemental clerk's record was filed in this Court. That record included (1) defendant's motion in limine to prevent the State from using specific hypothetical facts to commit the venire to an answer, (2) defendant's motion to limit jury argument, and (3) defendant's motion to invoke husband-wife confidential communication privilege with authorities and argument.
Friend seeks a second abatement to supplement the record on appeal. He complains that although items two and three as listed in the preceding paragraph were appropriately included in the clerk's record, there were actually two motions in limine filed on his behalf in the trial court. Friend contends that the aforementioned "motion in limine to prevent the state from using specific hypothetical facts to commit the venire to an answer" was not the motion in limine he sought to include in the clerk's record. Instead, Friend maintains that the motion in limine he sought to include in the clerk's record was a one-page motion enumerating eight limine items. Although the one-page, eight-item motion was presented to the trial court during the abatement hearing, and the trial court's findings with respect to the limine items enumerated in that motion are outlined in the supplemental reporter's record, the actual motion was not included in the supplemental clerk's record. The supplemental reporter's record does not indicate that Friend's appellate counsel, Jason Horton, was advised of the hearing or that he was present at the hearing. Friend is entitled to a second hearing in the trial court for correction of what he deems an inaccurate clerk's record.
This motion in limine, as found by the trial court, had previously been filed by the Bowie County District Clerk's office. --------
We, therefore, abate this appeal to the trial court pursuant to Rule 34.5(d) of the Texas Rules of Appellate Procedure 34.5(d). See TEX. R. APP. P. 34.5(d). The trial court is to conduct a hearing, with appropriate notice to Horton, and determine whether the one-page, eight-item motion in limine was filed with the trial court. In the circumstance that this motion is found to have been filed by the trial court, it is to be included in a supplemental clerk's record in accordance Rule 34.5(c) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 34.5(c).
The hearing shall be conducted by the trial court on or before January 19, 2016. The trial court's findings concerning the above matter shall be provided in a supplemental clerk's record, together with the motion in limine listed above, if that motion was filed with the trial court. The supplemental clerk's record and the supplemental reporter's record of that hearing shall be prepared immediately and shall be received by this Court no later than January 26, 2016. No extensions will be granted.
All appellate timetables are stayed and will resume on our receipt of the supplemental clerk's and reporter's records.
IT IS SO ORDERED.
BY THE COURT Date: January 4, 2016