Rafael Adrian Aguayo v. State ( 2015 )

NUMBER 13-14-00650-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG RAFAEL ADRIAN AGUAYO, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 398th District Court of Hidalgo County, Texas. ORDER ABATING APPEAL Before Justices Garza, Benavides, and Longoria Order Per Curiam This cause is before the Court on two motions filed by appellant. Appellant has filed an unopposed fourth motion for extension of time to file brief and a motion to unseal exhibits. The reporter’s record was filed on March 20, 2015, and appellant’s brief was originally due to be filed thirty days thereafter. See TEX. R. APP. P. 38.6(a). This Court has previously granted appellant three extensions of time totaling 182 days to file the brief. By order dated September 23, 2015, counsel was notified that no further extensions would be granted absent exigent circumstances. Counsel’s fourth motion for extension of time requests an additional 45 day extension, until December 3, 2015, to file the brief. Counsel states that upon review of the record, she discovered that an order of consolidation had been entered by the trial court consolidating this trial court cause number, CR-0476-14-I, with cause number CR-0953-13-I. Counsel believes the record is not complete because it does not include motions filed in CR-0953-13-I. According to appellant’s motion to unseal, defense exhibits 10-17 are sealed and counsel has no access to review these records for purposes of preparing the brief. Counsel requests that this Court allow her to have a copy of the sealed exhibits with a restrictive order, or alternatively allow her access to the sealed exhibits for viewing in the Hidalgo County District Clerk’s Office, or this Court’s Edinburg Office. We note that the reporter’s record volume 31 filed with this Court indicates defense exhibits 10-17 are sealed, but such exhibits have not been filed with this Court. This situation requires us to effectuate our responsibility to avoid further delay and to preserve the parties’ rights. See TEX. R. APP. P. 37.3(a)(1). Accordingly, this appeal is ABATED and the cause REMANDED to the trial court. Upon remand, the judge of the trial court shall immediately cause notice to be given and conduct a hearing to determine which portions of the record are sealed and why, and whether the parties to this appeal should be given access to the sealed records. Otherwise, the trial court shall determine 2 what steps are necessary to ensure the prompt preparation of a complete record and shall enter any orders required to avoid further delay and to preserve the parties’ rights. The trial court shall prepare and file its findings and orders and cause them to be included in a supplemental clerk's record which should be submitted to the Clerk of this Court within thirty days from the date of this order. Appellant’s motion to unseal the sealed exhibits is GRANTED in part to the extent specified in this order of abatement and DENIED in part as to all other relief requested. In the interim, appellant’s motion for extension of time to file the brief is CARRIED WITH THE CASE. It is so ordered. PER CURIAM Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 9th day of November, 2015. 3