Opinion
01-23-00729-CR
12-28-2023
The State of Texas v. Corey Davison
Trial court: 178th District Court of Harris County No. 1764779
ORDER OF ABATEMENT
Amparo Monique Guerra, Judge
The State of Texas has filed a notice of appeal from the trial court's September 29, 2023 dismissal of the trial court case number 1764779 against appellee, Corey Davison. The dismissal was in connection with the trial court's September 29, 2023 order granting Davison's application for writ of habeas corpus. Davison's application for writ of habeas corpus argued that the State was collaterally estopped from prosecuting him based on a finding of "not true" made by the trial court in a motion to adjudicate hearing in trial court case number 1541644, in which Davison was placed on deferred adjudication after pleading guilty to the felony offense of aggravated assault of a family member.
The State has also filed a notice of appeal from the trial court's order granting Davison's application for writ of habeas corpus, which is pending in this Court as appellate case number 01-23-00728-CR.
The State filed its appellant's brief on December 1, 2023, making Davison's brief due on or before December 21, 2023. See Tex. R. App. P. 38.6(b). On December 12, 2023, Davison filed a "Motion to Supplement Appellate Record." Then, on December 13, 2023, Davison filed a "Motion to Abate Appeal," requesting that the Court abate both appeals pending its ruling on his motion to supplement the appellate record.
In his motion to supplement the appellate record, Davison requests that the Court direct the official court reporter for the 178th District Court to file a supplemental reporter's record in appellate case numbers 01-23-00728-CR and 01-23-00729-CR. Specifically, Davison requests that the appellate record be supplemented to include "the reporter's record from the Motion to Adjudicate Guilt Hearing from October 14, 2020 in the State of Texas v. Corey Davison, cause number 1541644." Davison states that "the issues litigated" in that hearing "are at the heart of the appeal[s]" presented to this Court. However, the court reporter "has been unable to file [the transcript from the October 14, 2020 hearing] with the Court of Appeals because the cause number of the hearing does not match the cause number[s] being appealed."
In his motion, Davison notes that "[t]he trial court and the parties had access to the October [14], 2020 hearing in cause number 1541644 prior to and during the litigation of the writ of habeas corpus in cause number 1822734, which sought to prevent the State from going forward in cause number 1764779." However, while the trial court may have "had access to . . . the [transcript from the October 14, 2020] hearing," the transcript from the October 14, 2020 hearing was not made a part of the trial court's record by any party. Further, the appellate records in the appeals are unclear as to whether the trial court considered the transcript from the October 14, 2020 hearing in ruling on Davison's application for habeas corpus.
The State filed a response to Davison's motions, arguing that the transcript from the October 14, 2020 hearing in trial court case number 1541644 was not made a part of the record in trial court case numbers 1764779 or 1822734, and therefore cannot be considered on appeal. See Simon v. State, No. 01-04-01212-CR, 2006 WL 1550020, at *2 n.1 (Tex. App.-Houston [1st Dist.] June 8, 2006, pet. ref'd) (mem. op., not designated for publication) (appellate court's review generally limited to items contained in appellate record, including the clerk's record and reporter's record, if any); see also Tex. R. App. P. 34.1.
Davison filed a reply in support of his motions, arguing that it is appropriate to include the transcript from the October 14, 2020 hearing in trial court case number 1541644, noting that, during the hearing on Davison's application for habeas corpus, it was "repeatedly referenced by the parties," and "[p]ortions of that transcript were read into the writ hearing, witnesses relied upon it during their testimony, and the trial court stated it was 'looking at the record' when making assertions and findings on the record." Accordingly, "[i]t is clear that the transcript from the October [14,] 2020 hearing should be included in the appellate record in the causes currently on appeal." However, to the extent that "this Court has any doubt about the trial court's consideration of and reliance upon the October [14,] 2020 hearing," this Court should abate the appeals and direct the trial court to make "findings on whether it relied on" the transcript in connection with the hearing on Davison's application for habeas corpus.
Davison's motion to abate is granted. This appeal is abated and the case is remanded to the trial court so that the trial court can affirmatively notify this Court whether it considered the transcript from the October 14, 2020 hearing in trial court case number 1541644 either at the hearing on Davison's application for writ of habeas corpus, and/or as part of and prior to issuing its ruling on the application for writ of habeas corpus. The trial court is further directed to enter findings regarding whether it considered the transcript from the October 14, 2020 hearing in trial court case number 1541644 at the hearing on Davison's application for writ of habeas corpus, and/or as part of and prior to issuing its ruling on the application for writ of habeas corpus. The trial court's findings are to be submitted in writing and filed with the Clerk of this Court as a supplemental clerk's record within fourteen (14) days of the date of this order.
This appeal is abated and removed from the Court's active docket. The appeal will be reinstated on the successful motion of any party or by further order of this Court.
Davison's motion to supplement the appellate record will be considered by the Court after the trial court has clarified to this Court whether it considered the transcript from the October 14, 2020 hearing in trial court case number 1541644, as instructed above.
It is so ORDERED