Heriberto Ramirez v. State ( 2003 )

NO. 07-02-0345-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 29, 2003

______________________________



HERIBERTO RAMIREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B13736-0005; HONORABLE ED SELF, JUDGE _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ORDER ON MOTION TO INSPECT AND COPY JUROR'S NOTES

By his "Motion to Inspect and Copy Notes Made by Members of the Jury," appellant requests that we permit him to inspect and copy notes made by jurors during his trial that were sealed and included in the clerk's record. Based upon the rationale expressed herein, the motion is overruled.

On July 31, 2002, appellant was convicted by a jury of aggravated sexual assault and punishment was assessed at 50 years confinement. After appellate counsel was appointed and this appeal was timely perfected, on September 2, 2002, counsel filed a "Motion to Review and Copy Sealed Records" in the trial court by which he requested permission to review and copy records that were sealed alleging a necessity for "access in order to prosecute the appeal in this cause." By the pending motion, counsel asserts that access to the juror's notes may provide the basis for potential claims of ineffective assistance of trial counsel and jury misconduct. Also, counsel acknowledges that an adverse ruling to his September 2 motion does not appear in the record, although a proposed order was provided to the trial court. We recognize that Rule 33.1(a)(2)(A) of the Texas Rules of Appellate Procedure provides for an implicit ruling on a motion. See Gutierrez v. State, 36 S.W.3d 509, 511 (Tex.Cr.App. 2001). The record must show that a motion was called to the attention of the trial court to preserve a complaint for review. Tex. R. App. P. 33.1(a)(1); see also Carranza v. State, 960 S.W.2d 76, 78-79 (Tex.Cr.App. 1998). The record before us does not demonstrate that appellant's September 2 motion was presented to the trial court. Accordingly, appellant's complaint is not preserved for review.

Moreover, although a motion for new trial and hearing thereon is not always a requisite to raise a point on appeal, where a question of potential jury misconduct is presented, but the evidence is not otherwise fully shown by the record, a motion for new trial becomes essential. Tex. R. App. P. 21.3(c), (d), (f) and (g); see Williams v. State, 893 S.W.2d 549, 550 (Tex.Cr.App. 1995) (en banc) (holding that permitting jurors to take notes is not prohibited notwithstanding Rule 606(b) of the Texas Rules of Evidence); see also Baxter v. State, 66 S.W.3d 494, 505 (Tex.App.--Austin 2001, pet. ref'd).

By letter dated May 2, 2003, appellant's motion for extension of time in which to file his brief was granted to May 30, 2003. The Court sua sponte extends appellant's time to file his brief to June 18, 2003, with the admonition that no further motions for extension of time will be entertained.

Accordingly, appellant's motion to inspect and copy juror's notes is overruled.

Per Curiam

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