Luis Alfredo Servin v. State

Fourth Court of Appeals
San Antonio, Texas
September 15, 2017
No. 04-16-00671-CR
Luis Alfredo SERVIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR5175
Honorable Sid L. Harle, Judge Presiding
ORDER
Appellant’s court-appointed attorney filed a brief pursuant to Anders v. California, 368 U.S. 738
(1967), asserting there are no meritorious issues to raise on appeal, and informed the appellant of
the right to file his own pro se brief. Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.—San
Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App. —San Antonio
1996, no pet.). The State waived its right to file an appellee’s brief unless appellant files a pro se
brief. Appellant previously requested and received a copy of the appellate record to use in
preparing a pro se brief. See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). Appellant
has now filed a motion to supplement the record with omitted items and for access to State
Exhibit No. 19, which is electronic media.
With respect to the omitted items, appellant requests that the following items be included
in a supplemental clerk’s record: (i) the jury panel list, (ii) the jury strike lists by the defendant,
the State, and the court, (iii) the juror information forms, (iv) a pro se motion for exculpatory
evidence, (v) a pro se motion for a Jackson v. Denno hearing, (v) a pro se motion to suppress his
confession, (vi) motion for discovery, and (vii) motion in limine. Rule 34.5 of the Texas Rules
of Appellate Procedure describes the mandatory contents of the clerk’s record in a criminal case.
TEX. R. APP. P. 34.5(a). None of the items requested by appellant are part of the mandatory
contents. Pursuant to subsection (c) of Rule 34.5, if a “relevant item” has been omitted from the
clerk’s record, that omission may be cured through the preparation and filing of a supplemental
clerk’s record containing the item(s). TEX. R. APP. P. 34.5(c). Appellant has not stated how the
jury panel list, strike list, and juror information forms are relevant to his appeal. Further, the
record indicates that appellant was represented by counsel in the trial court. In Texas, appellants
do not have a right to hybrid or dual representation. See Rudd v. State, 616 S.W.2d 623, 625
(Tex. Crim. App. [Panel Op.] 1981) (criminal defendant has no right to represent himself pro se
and be represented by an attorney at the same time). Therefore, any pro se motions filed by
appellant while he was represented by counsel could not be considered by the trial court.
Accordingly, appellant’s request to supplement the clerk’s record with the designated items is
DENIED.
With respect to appellant’s request for a copy of the DVD of his statement, which was
admitted into evidence as State Exhibit No. 19, we agree that appellant is entitled under Kelly v.
State to have access to the electronic audio and visual media containing his statement. See Kelly
v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014). Appellant’s request to view a copy of
the DVD containing his statement is GRANTED. Accordingly, it is ORDERED that the clerk of
this court make an electronic copy of State Exhibit No. 19 and forward it to appellant in the care
of the warden of the prison unit in which appellant is currently incarcerated, along with a copy of
this order. It is further ORDERED that the warden of the prison unit where appellant is
housed shall promptly provide appellant with supervised access to a computer or other
equipment upon which he may personally view the DVD for purposes of preparing his pro
se brief. See Kelly, 436 S.W.3d at 321 n.24.
Finally, it is ORDERED that appellant’s pro se brief is due within thirty (30) days from
the date of this order.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 15th day of September, 2017.
___________________________________
KEITH E. HOTTLE,
Clerk of Court