Opinion
No. 04-17-00126-CR
10-12-2017
Terrell BUSH, Appellant v. The STATE of Texas, Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 14-01-00046-CRW
Honorable Stella Saxon, Judge Presiding
ORDER
On September 6, 2017, The State of Texas, the appellee in this case, filed a Motion to Abate Appeal and Request for Trial Court to Correct Inaccuracies in the Clerk's Record. Citing Texas Rule of Appellate Procedure 34.6, the State requested we abate this appeal and remand the cause to the trial court for a determination of whether the Pre-Sentence Investigation Report (PSI) should be made a part of the clerk's record on appeal. The State further requested an extension of its briefing deadline. Appellant responded on September 8, 2017 in which appellant indicated he did not oppose supplementing the clerk's record with the PSI or extending the State's briefing deadline. Appellant, however, opposed remanding the cause to the trial court for a determination of whether the PSI should be made a part of the clerk's record on appeal. On September 11, 2017, the State filed a response to appellant's response asserting the need for the cause to be remanded to the trial court.
On September 15, 2017, we ordered the State to file a response "informing this court whether the trial court considered the PSI prior to ruling on appellant's motion to withdraw his plea and explaining the relevance of the PSI to appellant's sole complaint on appeal." The State filed its response on October 2, 2017, informing this court the record is silent as to whether the trial court considered the PSI prior to ruling on appellant's motion to withdraw his plea. The State further explained the PSI relevance to appellant's appeal thusly: The PSI provided to the State ... directly contradicts the affidavit submitted by [a]ppellant in support of his motion to withdraw his plea."
The State's motion is GRANTED IN PART, and we ABATE this appeal and remand it to the trial court for a determination of whether the PSI should be made a part of the clerk's record on appeal. See TEX. R. APP. P. 34.5(c); Ruffin v. State, 3 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd), overruled on other grounds by Mitschke v. State, 129 S.W.3d 130 (Tex. Crim. App. 2004) (court of appeals ordered appellate record supplemented with PSI report when the existence and contents of PSI were relevant to appellate complaints); Lara v. State, 962 S.W.2d 148, 151 (Tex. App.—San Antonio 1998, no pet.) (permitting supplementation of appellate record with defendant's stipulations which, though not admitted into evidence, were reviewed and considered by the trial court); see also Brewer v. State, No. 1270-03, 2004 WL 3093224, at *4 (Tex. Crim. App. May 19, 2004) (not designated for publication).
We ORDER the trial court to determine whether the PSI should be made a part of the clerk's record on appeal and file its written findings of fact and conclusions of law with the trial court clerk no later than November 13, 2017. We further ORDER the trial court clerk to file a supplemental clerk's record in this court no later than ten days after the trial court files its findings of facts and conclusions of law.
All other appellate deadlines are suspended pending further orders from this court.
/s/_________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 12th day of October, 2017.
/s/_________
Keith E. Hottle
Clerk of Court