Opinion
11-21-00145-CR
05-19-2022
DANIEL RAY GARCIA, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 106th District Court Gaines County, Texas Trial Court Cause No. 19-5086
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
PER CURIAM
Appellant, Daniel Ray Garcia, represents himself in this appeal and has filed numerous motions complaining of the contents of both the clerk's record and the reporter's record in this appeal. We previously abated this appeal so that the trial court could conduct a hearing on these matters. However, because of the delay in the availability of the exhibits, Appellant was not prepared to go forward during the time period provided for in this court's April 7, 2022 abatement order. Accordingly, we again abate this matter to give Appellant and the trial court additional time to conduct a hearing on these matters and, hopefully, enlighten this court regarding the appellate record that has been filed in this cause.
In a motion filed in this court on March 11, 2022, which we previously granted in part, Appellant asserted that pretrial motions are missing from the clerk's record. We note that the clerk's record has now been supplemented to include the nine pro se motions mentioned in this court's April 7 order.
In a motion filed on March 17, 2022, which we previously granted in part, Appellant disputed the accuracy and completeness of the clerk's record and asked that we remand this cause to the trial court for further proceedings regarding the appellate record. In a motion filed on March 31, 2022, which we previously granted in part, Appellant complained of omissions from the reporter's record and specifically alleged that "all my statement or anything I say on the record is cut out."
Appellant has recently filed four additional motions that relate to the contents of the clerk's record and the reporter's record. First, he sent a motion to request this court, under Rule 34 of the Texas Rules of Appellate Procedure, to order the district clerk to make additional items part of the record. In this motion, Appellant seems to complain that he has not yet received the exhibits, and he asks that we order the prison to allow Appellant to see them. We note that we received this motion on April 8, 2022, the day after we abated this appeal. Appellant mailed it on April 6, 2022, prior to the date of our previous abatement order. To the extent that this motion relates to the clerk's record and the reporter's record, it is moot; we addressed those matters in our April 7 order. To the extent that Appellant asks this court to order the prison to do anything, the motion is denied.
Second, on April 13, 2022, we received a motion requesting a 30-day extension because Appellant had not yet received the exhibits, which had been sent to Huntsville for approval. Third, on May 2, 2022, we received a motion to extend the time provided for in our April 7 abatement order, again because Appellant had not yet been able to view the exhibits. These motions are granted to the extent they request an extension of time.
Fourth, on May 9, 2022, we received an emergency motion relating to the hearing that was to be conducted pursuant to our April 7 abatement order. In this motion, Appellant requests a new setting for the Rule 34.6 hearing and also an order requiring that he be present in person for the hearing. This motion is granted to the extent that Appellant asks for additional time for the hearing; it is otherwise denied. The trial court has discretion on the matter of Appellant's presence at the hearing.
As we stated in our April 7 abatement order, we are unable to determine whether there are inaccuracies or omissions in the reporter's record without the aid of the trial court. We have reviewed volumes two through twenty-one of the reporter's record and have found nothing to indicate that Appellant's statements were "cut out." However, in light of Appellant's complaint, we request that the trial court conduct a hearing to determine, and clarify for this court, the following:
Whether the reporter's record contains inaccuracies or omissions as alleged by Appellant. See Tex. R. App. P. 34.6(e)(2)-(3).
Appellant need not appear in person at the hearing; the trial court may permit Appellant to appear through telephonic or other electronic means available to the trial court and Appellant.
Upon completion of the hearing, the trial court shall make any findings necessary to address the concerns stated in this abatement order. The trial court's findings shall be included, along with the nine missing motions mentioned above, in a supplemental clerk's record to be filed in this court on or before August 19, 2022, with a copy sent to Appellant pursuant to this court's order dated October 21, 2021. A supplemental reporter's record from the hearing shall also be prepared and filed in this court on or before August 19, 2022, with a copy sent to Appellant pursuant to this court's order dated October 21, 2021. When the supplemental records are filed in this court, we will reinstate the appeal. Appellant's brief will be due thirty days after this appeal is reinstated.
As detailed above, we (1) deny in part and dismiss as moot in part Appellant's "Motion to Request this Court Under Rule 34 . . . to Order the District Clerk"; (2) grant in part Appellant's "Motion to Request 30 Day Extension"; (3) grant in part Appellant's "Motion [to] Extend Time on Abated Order"; and (4) grant in part and deny in part Appellant's "Emergency Motion . . . to set Hearing for Abated Hearing Under Rule 34.6."