Raymond Lee Cavitt v. State ( 2014 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Raymond Lee Cavitt v. The State of Texas Appellate case number: 01-13-00900-CR Trial court case number: 1342490 Trial court: 174th District Court of Harris County Appellant, Raymond Lee Cavitt, has filed a “Motion to Supplement the Record” and a “Motion for Extension of Time to File Appellant’s Brief.” We grant the motion to supplement, and we deny the motion for extension. On April 25, 2014, appellant filed a “Motion to Supplement the Record.” In his motion, appellant requests that the record be supplemented with a “Motion for New Trial” that was filed on November 13, 2013. The trial court clerk’s record, which was filed on December 3, 2013, does not contain a motion for new trial, any response to a motion for new trial, or a written order from the trial court related to a motion for new trial. Pursuant to Texas Rule of Appellate Procedure 34.5(a)(6), appellant’s motion for new trial, if any, should have been included in the clerk’s record. See TEX. R. APP. P. 34.5(a)(6). Accordingly, we grant appellant’s motion to supplement the record and order the trial court clerk to file a supplemental clerk’s record within 10 days of the date of this order, which shall include any motion for new trial filed in the court below, any response to any motion for new trial, and any order of the trial court related to any motion for new trial. See TEX. R. APP. P. 34.5(a)(6), (c)(1). Nevertheless, because (1) the clerk’s record was filed on December 3, 2013, (2) appellant’s brief was first due on February 3, 2014, (3) we informed appellant in our April 22, 2014 order that no further extensions of time for the filing of appellant’s brief would be granted, and (4) counsel failed to identify and rectify this defect in a timely fashion,1 counsel may not rely on the supplementation of the clerk’s record as the basis for a motion for extension of time to file appellant’s brief. Therefore, we deny appellant’s motion for extension of time, filed on May 1, 2014, which relies solely on appellant’s motion to supplement the appellate record as a basis for seeking an extension of time to file appellant’s brief. Appellant may, if necessary and appropriate, cite in his brief to the reporter’s record regarding the hearing on the motion for new trial and the exhibits to the motion for new trial. Further, if citation to the motion for new trial is necessary and appropriate, appellant may refer to the motion in his brief filed by May 6, 2014 and may file a motion for leave of the Court to file an amended brief, for the sole purpose of adding citations to the supplemental clerk’s record and which shall be accompanied by an amended brief, no later than five days after the supplemental clerk’s record is filed. See TEX. R. APP. P. 38.7. Appellant’s brief remains due on May 6, 2014, and, pursuant to our order of April 22, 2014, no further extensions will be granted. It is so ORDERED. Judge’s signature: /s/ Sherry Radack  Acting individually  Acting for the Court Date: May 2, 2014 1 Pursuant to Texas Rule of Appellate Procedure 34.5(c)(1), appellant could have directed the trial court clerk to file a supplemental clerk’s record containing his motion for new trial at any time after discovering its omission from the record filed on December 3, 2013, as “any party may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing” any “relevant item that has been omitted from the clerk’s record.” TEX. R. APP. P. 34.5(c)(1).