Opinion
01-19-00863-CR
05-07-2024
Oscar Ramirez Martinez v. The State of Texas
Trial court: 178th District Court of Harris County Trial court case number: 1617262
ORDER
RICHARD HIGHTOWER JUDGE
Review of this appeal has been greatly delayed due to previous counsel's alleged problems in locating appellant. Retained counsel Charles David Thompson filed a motion to withdraw on April 2, 2020, claiming he had not been paid to prepare the appeal and because appellant had apparently been deported, Thompson was unable to obtain appellant's consent for a voluntary withdrawal. Appellant's brief was originally due on April 8, 2020 and late notice issued on April 24, 2020. When no response was received, the Court issued an order on July 7, 2020, remanding to the trial court for a hearing to determine whether appellant had abandoned the appeal or still wished to prosecute the appeal and whether Thompson's motion to withdraw should be granted. The trial court was instructed to hold a hearing and to see that a supplemental clerk's record and supplemental reporter's record were filed in this Court. No supplemental records were filed. Another order issued reminding the trial court of the remand for a hearing and resetting the deadlines for the filing of the supplemental records.
A supplemental clerk's record containing the trial court's findings was filed on May 19, 2023. In this clerk's record, the trial court found that appellant had abandoned the appeal, permitted Thompson to withdraw, but declined to appoint counsel because appellant had abandoned the appeal. The Court reinstated the appeal and set the case for submission on the record on July 25, 2023. On July 7, 2023, appointed counsel Angela Cameron filed a motion to remove the case from the submission docket, to allow counsel to review the record and to set a new briefing schedule. Because the last communication from the trial court indicated that appellant had abandoned the appeal, the Court issued another order on July 13, 2023, withdrawing the case from the submission docket, abating the appeal, and remanding to the trial court to determine whether appellant now wished to prosecute his appeal and to make any other findings the trial court deemed appropriate, including whether appellant had been deported and whether counsel's ability to communicate with appellant was futile.
Another hearing was held and the supplemental reporter's record and clerk's record were filed on August 10 and 14, but the supplemental clerk's record did not contain the trial court's findings. The supplement reporter's record did indicate that the trial court was able to include appellant, who was in Mexico, in the hearing by Zoom. The reporter's record indicated that appointed counsel Cameron presented certain emails, possibly from Thompson to Cameron, screen shot photos, and some sort of summary to the trial court concerning her contention that Thompson had enough information to locate appellant but failed to do so. These documents were not admitted into evidence. Thus, the Court reinstated the appeal on the active docket, stating that appellant had appeared, new counsel had been appointed, and it appeared that appellant wished to continue his appeal. Appellant's brief was ordered to be filed by November 12, 2023.
A supplemental clerk's record was filed on October 17, 2023. This supplemental record included a motion to seal filed by appellant, asking the trial court to seal all exhibits tendered by the defendant as they contained personal information, but that the exhibits be made available to both parties. An order, signed by Associate Judge Inger H. Chandler was signed on August 11, 2023,and is included in the October 17, 2023 supplemental clerk's record, which granted the motion to seal and ordered all exhibits tendered during the August 8, 2023 hearing sealed with both parties to have access "to the exhibits made part of the appellate record." The supplemental clerk's record also contained the trial court's findings. The trial court determined that "[n]ew information has been presented to the undersigned associate judge that changes the opinion" concerning appellant's abandonment of the appeal. Thus, the trial court found that appellant did want to pursue his appeal and made the following finding:
9. The trial court further finds that because no action was taken from the time trial counsel filed appellant's notice of appeal in 2019 (that bore trial counsel's signature block) to the time trial counsel's motion to withdraw was granted in 2023, the appellant should regain his full appellate rights, including the opportunity to file a motion for new trial.
Appellant's brief was filed on January 12, 2024. The State filed its brief on March 25, 2024. On April 9, 2024, appellant filed a motion to abate the appeal for an evidentiary hearing on allegedly lost or missing exhibits. Appellant contended that the trial court considered certain emails and screen shot photos in determining whether appellant had abandoned his appeal and in reaching the conclusion that appellant should have the opportunity to file an out of time motion for new trial. Appellant noted that the State did not object to these documents during the hearing.
In its brief, the State claims that the trial court's finding concerning out-of-time motion for new trial was outside the scope of this Court's remand order and asserts that no documents were offered or admitted into evidence and that these "phantom" documents were not part of the appellate record and thus, there was no support for the trial court's determination that appellant was entitled to an out of time motion for new trial.
Appellant disagrees and claims that the trial court considered the documents tendered during the August 8, 2023 hearing in reaching its decision and ordered those documents sealed and made part of the appellate record. Because the court reporter had not tendered these sealed documents, appellant asks for this Court to abate the appeal and order the trial court to determine whether the documents have been lost. Appellant also argues that, even though the documents were not admitted as exhibits, the trial court should make a determination pursuant to Rule 34.6 whether the documents were lost, and although a finding that documents are lost does not automatically warrant reversal, it warrants abatement and trial court review and a new trial should be granted only if the missing portion of the record cannot be reproduced. The State has not filed a response to appellant's motion to abate.
In Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007), the trial court had conducted a hearing on appellant's motion to suppress evidence during which it viewed portions of the arresting officer's patrol-car videotape. See id. at 668. The trial court denied the motion to suppress and the appellate court held in part that appellant "failed to present a complete record on appeal because he successfully objected to the supplementation of the record with the videotape that had not been formally admitted into evidence." Id. Therefore, the appellate court assumed the videotape supported the trial court's ruling. See id. The Court of Criminal Appeals disagreed with the court of appeal's assumption that the missing videotape supported the trial court's ruling and vacated the judgment of the court of appeals, and remanded, finding that the trial court was in the "best position to resolve the parties' dispute concerning what portions of the videotape he actually saw and used in making his ruling . . . ." Id. at 669.
Based on Amador, we grant appellant's motion to abate and order the appeal abated and remanded to the trial court at which time a representative of the Harris County District Attorney's Office and appellant's counsel, Angela Cameron, shall be present. Tex. R. App. 38.8(b)(2). Appellant shall also be present for the hearing in person or, if appellant is in Mexico, at the trial court's discretion, appellant may participate in the hearing by closed-circuit video teleconferencing.
Any such teleconference must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound between the trial court, appellant, and any attorneys representing the State or appellant. On request of appellant, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State.
The trial court is directed to:
(1) determine whether, in reaching its determination that appellant was entitled to an out-of-time motion for new trial, it considered the emails, screen shot photo(s), and summary tendered during the August 8, 2023 hearing and later ordered sealed as part of the appellate record;
(a) if so, the trial court should make a formal finding that it considered the emails, screen shot photo(s), and summary in making the August 11, 2023 findings; or
(b) if not, the trial court shall make a formal finding that it did not consider the emails, screen shot photo(s), and summary in making the August 11, 2023 findings.
(2) if the trial court determines that it did consider the emails, screen shot photo(s), and summary, it shall determine if those emails and photos were the documents ordered sealed and made a part of the appellate record by the trial court's August 11, 2023 order granting the motion to seal;
(3) if the trial court determines that it did consider the emails, screen shot photo(s), and summary in making its August 11, 2023 findings, and that these documents were ordered sealed and made part of the appellate record by the trial court's August 11, 2023 order to seal, the trial court shall determine whether those documents under seal exist or have been lost or destroyed. If the documents exist, the trial court shall see that the court reporter files a supplemental reporter's record containing the sealed documents;
(4) if the documents under seal have been lost or destroyed, the trial court may permit the parties to agree on how to correct the reporter's record to include the sealed documents, or if the parties are unable to agree, the trial court may, after notice and hearing, settle the dispute and order the creation of a supplemental reporter's record containing the documents the trial court determines are the correct documents it considered during the August 8, 2023 hearing and ordered sealed as part of the appellate record;
(5) if, however, the trial court finds that the sealed documents it considered during the August 8, 2023 hearing are lost and the parties are unable to recreate them, then the trial court shall make a formal finding to that effect.
The trial court shall have a court reporter record the hearing and file the reporter's record with this Court within 30 days of the date of this order. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings and recommendations with this Court within 30 days of the date of this order. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall also be filed in this Court within 30 days of the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the supplemental clerk's record and the reporter's record of the hearing are filed in this Court.
It is so ORDERED.