Opinion
No. 05-17-00813-CR
08-11-2017
FRANKLYN TYRONE JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 396th District Court Tarrant County, Texas
Trial Court Cause No. 1320746D
ORDER
Franklin Tyrone Johnson appeals his conviction for aggravated sexual assault of a child under fourteen years of age. Appellant waived his right to a jury trial and pleaded guilty to the charged offense. The trial court deferred adjudication of guilt and placed appellant on community supervision for ten years. When the State filed a motion to adjudicate guilt, the trial court found appellant guilty and assessed punishment at fifteen years in prison. This appeal ensued. Although originally filed in the Second Court of Appeals, the appeal was transferred to this Court on July 14, 2017 by the Texas Supreme Court pursuant to its docket equalization order. TEX. GOV'T CODE ANN. § 73.001 (West 2013).
On August 2, 2017, the clerk's record was filed with the Clerk of this Court. The following day, two separate documents were filed. The August 3rd documents are not filed in supplemental clerk's records; they are not labeled or certified in accordance with the rules of appellate procedure, nor is the trial court's written order, ordering the documents sealed, attached or included. On the first page of the first document is a handwritten notation "State of TX vs #1320746D Franklyn Tyrone Johnson." In the lower left-hand corner is the handwritten notation "7/31/13 comp rpt." A six-page report follows. The last page of the first document has a handwritten notation "Sealed per Ct." The second document likewise has a handwritten notation "State of TX vs #1320746D Franklyn Tyrone Johnson" with "8/30/13 comp rpt" handwritten in the lower left-hand corner. A six-page report is followed by a piece of paper with the handwritten notation "Sealed per Ct."
Because the documents were not proper supplemental clerk's records, the Clerk of the Fifth District Court of Appeals rejected them. Although the Clerk of this Court informed the district clerk's office that the documents did, in fact, have to be filed in proper supplemental clerk's records, along with a copy of a signed court order sealing the documents, the Tarrant County District Clerk's office again submitted the loose documents electronically to this Court. For the reasons that follow, we again reject the loose documents.
The Texas Rules of Appellate Procedure are promulgated by the Texas Supreme Court and the Texas Court of Criminal Appeals. Rule 34 sets out the contents of the appellate record and instructs on what documents must be included. See TEX. R. APP. P. 34. The rules also include Appendix C, Order Directing the Form of the Appellate Record. TEX. R. APP. P., appx. C. Rule 1 of Appendix C provides that the trial court clerk must "gather the documents" to be included in the clerk's record, "prepare, label, and certify the clerk's record as required by this rule" and "include on the front cover of the first volume, and any subsequent volumes, of the clerk's record, whether filed in paper or electronic form, the following information:"
CLERK'S RECORD
VOLUME __________ of __________
Trial Court Cause No. __________
In the __________ (District or County) Court of __________ County, Texas,
Honorable __________, Judge Presiding
__________, Plaintiff(s)
vs.
__________, Defendant(s)
Appealed to the
(Supreme Court of Texas at Austin, Texas,
or Court of Criminal Appeals of Texas at Austin, Texas,
or Court of Appeals for the __________ District of Texas, at __________, Texas).
Attorney for Appellant(s):
Name __________
Address __________
Telephone no.: __________
Fax no.: __________
E-mail address: __________
SBOT no.: __________
Attorney for: __________, Appellant(s)
__________
Name of clerk preparing the clerk's record: __________ Id. R. 1.1(f) (emphasis added). In addition, rule 1 provides that the trial court clerk must:
(i) prepare and include after the front cover of the clerk's record a detailed table of contents identifying each document in the entire record (including sealed documents), the date each document was filed, and, except for sealed documents, the page on which each document begins. The table of contents must be double-spaced and conform to the order in which documents appear in the clerk's record, rather than in alphabetical order. If the clerk's record consists of multiple volumes, the table of contents must indicate the page on which each volume begins. If the clerk's record is filed in electronic form, the clerk must use bookmarks to link each document description in the table of contents, except descriptions of sealed documents, to the page on which each document begins; and
(j) conclude the clerk's record with a certificate in substantially the following form:
The State of Texas )
County of __________ ) I, __________, Clerk of the __________ Court of __________ County, Texas do hereby certify that the documents contained in this record to which this certification is attached are all of the documents specified by Texas Rule of Appellate Procedure 34.5(a) and all other documents timely requested by a party to this proceeding under Texas Rule of Appellate Procedure 34.5(a). GIVEN UNDER MY HAND AND SEAL at my office in __________, County, Texas this __________ day of __________.
signature of clerk __________
name of clerk __________
title __________ Id. R. 1.1 (h)-(j) (emphasis added). If the clerk's record is filed in electronic form, the trial court clerk must include either a scanned image of the clerk's signature or "/s/" and the clerk's name typed in the space where the signature would otherwise appear. Id. R. 1.1(j).
Rule 1 further requires that "[w]hen filing a clerk's record in electronic form, the trial court clerk must . . . (g) file each sealed document separately from the remainder of the clerk's record and include the word 'sealed' in the computer file name," "if filing a supplement to the clerk's record, include the number of the supplement and 'Supp'," and "a supplement to a clerk's record must also be prepared in conformity" with rule 1. Id. R. 1.2(g); R. 1.4. Finally, rule 9.10 of the rules of appellate procedure provides that "[i]f a court orders material sealed, whether it be sensitive data or other materials, the court's sealing order must be affixed to the outside of the sealed container if the sealed material is filed in paper form, or be the first document that appears if filed in electronic form." TEX. R. APP. P. 9.10(g).
Because the August 3rd loose documents, labeled "sealed clerk's record," do not comply with the Texas Rules of Appellate Procedure, we STRIKE them. We ORDER the Tarrant County District Clerk to refile the documents, within TEN DAYS of the date of this order, in supplemental clerk's records that comply with the Texas Rules of Appellate Procedure.
We DIRECT the Clerk to send copies of this order to the Honorable George Gallagher, Presiding Judge, 396th Judicial District Court; Thomas A. Wilder, Tarrant County District Clerk; Brian Newman; and the Tarrant County District Attorney's Office.
/s/ CAROLYN WRIGHT
CHIEF JUSTICE