Roger Saldana v. State

Fourth Court of Appeals San Antonio, Texas December 29, 2017

No. 04-16-00806-CR

Roger SALDANA, Appellant

v.

The STATE of Texas, Appellee

From the 81st Judicial District Court, Frio County, Texas Trial Court No. 15-08-00031-CRF Honorable Russell Wilson, Judge Presiding

ORDER

Pending before the court are Appellant’s Motion to Supplement Appellate Record with Documents Disclosed by State on October 11, 2017 and to File Same Under Seal and Appellant’s Motion to Supplement Appellate Record with Complete Copy of Officer Dash-Cam DVD Entered into Evidence as State’s Exhibit 1.

In the first motion, appellant appears to be requesting this court to allow the appellate record to be supplemented with documents that were not admitted into evidence at trial. This court, however, may not consider documents that are “not part of the appellate record concerning events or actions in the trial court.” Jack v. State, 149 S.W.3d 119, 121 n.1 (Tex. Crim. App. 2004); see also Farris v. State, 712 S.W.2d 512, 515 & n.3 (Tex. Crim. App. 1986) (noting “[n]ew evidence, which has been developed subsequent to any proceedings surrounding a defendant’s trial, does not constitute part of [the appellate] ‘record’” although such evidence may be developed at a hearing on a writ of habeas corpus).

In the second motion, appellant appears to be requesting this court to allow the appellate record to be supplemented with a DVD which was not the original exhibit entered into evidence at trial. Although this court is permitted to inspect the original DVD that was entered into

evidence, see TEX. R. APP. P. 34.6(g), the rules do not appear to allow this court to inspect a different copy of the DVD.1 See Jack, 149 S.W.3d at 121 n.1.

It is therefore ORDERED that appellant and the State file a written response in this court no later than ten days from the date of this order addressing this court’s concerns with regard to allowing the supplementation of the appellate record with the documents disclosed by the State on October 11, 2017, and with a different copy of the DVD. In the event we determine the appellate record may not be supplemented, appellant will be given the opportunity to re-amend his brief to omit all references to material outside the appellate record or to rely on his original brief.

_________________________________ Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 29th day of December, 2017.

___________________________________ Keith E. Hottle Clerk of Court

1 Although appellant states the DVD is “an identical copy” of the DVD admitted at trial, appellant also states the DVD he seeks to have included in a supplemental record contains “caption information, such as the timestamps” that are not included in the DVD currently contained in the appellate record.