Malcolm Gandy v. State

Fourth Court of Appeals
San Antonio, Texas
January 18, 2018
No. 04-16-00509-CR
Malcolm GANDY,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR6350
Honorable Melisa Skinner, Judge Presiding
ORDER
This appeal was submitted on briefs on September 6, 2017. On appeal, appellant raises
five points of error challenging the trial court’s order denying his motion to suppress. In his
brief, appellant cites to a suppression hearing held on September 21, 2015; however, a copy of
the reporter’s record from that hearing has not been filed in this court. 1
A review of the clerk’s record reflects that on August 22, 2016, appellant filed a Request
for Preparation of Reporter’s Record, specifically requesting preparation of the record from both
the motion to suppress evidence hearing and sentencing hearing. In his request, appellant
identifies Maria Fattahi as the court reporter for the suppression hearing. Thereafter, on
September 21, 2016, Maria Fattahi filed in this court a notification of late record, stating the
record would not be filed because appellant has not paid or made arrangements to pay the
reporter’s fee to prepare the record and appellant is not entitled to the record without paying the
fee. See TEX. R. APP. P. 34.6(b), 35.3(b). No action was taken by this court in response to this
notification.
Rule 37.3(c) of the Texas Rules of Appellate Procedure provides that in the event a
reporter’s record is not filed, we may consider and decide points of error that do not require a
reporter’s record, but only after we give appellant notice and a reasonable opportunity to cure.
See id. R. 37.3(c). Accordingly, we ORDER appellant to provide written proof to this court on
1
We note the State acknowledges in its brief that a copy of the suppression hearing has not been properly filed in
this court and counsel has not had access to a certified copy of that record.
or before January 29, 2018 that either (1) the fee for the preparation of the record from the
suppression hearing has been paid or arrangements have been made to pay the fee, or (2)
appellant is entitled to the record without prepayment of the reporter’s fee. See id. R. 35.3(b). If
appellant fails to respond within the time provided, then we will only consider those issues or
points raised in appellant’s brief that do not require a reporter’s record for a decision. See id. R.
37.3(c).
We order the clerk of this court to serve a copy of this order on all counsel and the court
reporter Maria Fattahi.
It is so ORDERED on this 18th day of January, 2018.
PER CURIAM
ATTESTED TO:_____________________________
Keith E. Hottle,
Clerk of Court