Ex Parte: Damon Good v. the State of Texas

Order entered January 19, 2023

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-22-01229-CR

EX PARTE DAMON GOOD

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-05643-2022

ORDER

Before the Court is appellant’s January 4, 2023 motion to supplement the record and the State’s January 6, 2023 response and motion for leave to file an amended brief. The current motions arise from the State’s assertion in its brief that appellant did not request an evidentiary hearing on his habeas application.

Appellant seeks to supplement the record with printouts of an email exchange between his counsel and the bailiff in which counsel inquired how to set the case for a hearing and the bailiff informed counsel that the trial court would hear the case by written submission. The State does not oppose supplementing the record with the emails, but whether supplementation is granted or not, moves to amend its brief to clarify that appellant only informally requested a hearing and never objected to the trial court hearing the matter by written submission.

In reviewing the trial court’s habeas ruling, we consider evidence admitted in any hearing and in the record as it existed before the trial court at the time the matter was heard. See Ex parte Martinez, 560 S.W.3d 681, 695 (Tex. App.—San Antonio 2018, pet. ref’d); Ex parte Storm, 49 S.W.3d 401, 402 (Tex. App.—Fort Worth 2000, no pet.). Because there is no showing that the email exchange between counsel and the bailiff was before the trial court and part of the record when the trial court ruled on appellant’s habeas application, it is not part of the record on appeal. See Martinez, 560 S.W.3d at 695; Storm, 49 S.W.3d at 402. Accordingly, we DENY appellant’s motion.

We GRANT the State’ s motion to amend its brief for the limited purpose of clarifying that appellant never filed a formal request or motion for a hearing and did not object to the trial court hearing the matter by submission. We ORDER the State’s amended brief due within FOURTEEN DAYS of the date of this order.

After the State files its amended brief, the Court will notify the parties by letter of the submission date and panel that will consider the appeal.

/s/ KEN MOLBERG JUSTICE

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