in the Matter of David Christopher Hesse ( 2015 )

ACCEPTED
01-15-00401-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/31/2015 3:32:54 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00401-CR
IN THE FILED IN
FIRST COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
AT HOUSTON, TEXAS 7/31/2015 3:32:54 PM
CHRISTOPHER A. PRINE
Clerk
IN THE MATTER OF
DAVID CHRISTOPHER HESSE,
Appellant
SUPPLEMENTAL MOTION TO STRIKE
SECOND SUPPLEMENTAL CLERK’S RECORD
TO THE HONORABLE JUDGES OF SAID COURT:
Appellant, David Christopher Hesse, supplements his prior-filed Motion
to Strike the Second Supplemental Clerk’s Record, which is incorporated
herein by reference, and shows:
1. On July 30, 2015, the District Clerk of Fort Bend County filed a
letter with this Court. In this letter, the District Clerk requests this Court to
“[w]ithdraw from the Clerk’s Record submitted May 14, 2015 page numbers
6 – 11 and replace with the documents included in the Second Supplemental
Record as page numbers 4 – 9.”
2. Hesse objects to that request and asks that this Court not grant the
District Clerk’s request to withdraw page 6 – 11 (specifically pages 8 – 11) from
1
the Clerk’s Record.
3. As the District Clerk acknowledges in her letter, the February 25,
2015, Judgment of Contempt (C.R. pp. 9 – 11) did not have any annotations
on it when it was scanned by her Office on February 27, 2015. And the District
Clerk’s letter is silent to the fact that when her Office prepared the Clerk’s
Record and submitted it on May 14, 2015, the annotated Judgment was not to
be found among the papers of the case.
4. If the Court grants the District Clerk’s request and withdraws page
numbers 6 – 11 of the Clerk’s Record and replaces those with the documents
included in the Second Supplemental Record as page numbers 4 – 9” the
Record would stand with only the “annotated” February 25, 2015 Judgment.
That would make the record reflect that the annotation, “ABANDON IN
FAVOR OF 2/26/2015 JUDGMENT,” signed Lee Duggan, Jr. JUDGE” was on
the document on February 26, 2015 when it was filed at 2:32 p.m..
5. The verity of the Clerk’s Record would, thereby, be destroyed.1
This should not be allowed to happen.
6. Interestingly, the District Clerk does not tell this Court when her
Office scanned the “annotated” judgment. This information is available, if
1
… Sumrall v. Russell, 262 S.W. 507 (Tex. Civ. App. – El Paso 1924, writ ref’d).
2
nowhere else, in the metadata of that file on the District Clerk’s server. The
District Clerk also does not advise what happened to the original barcode
affixed to the document at pages 6 – 11 of the Clerk’s Record.
7. More interesting is the fact that the State, in its Response to
Contemnor’s Motion to Quash (C.R. pp. 223 – 251) refers only to the February
26, 2015 Judgment. The State’s Response makes no reference to the February
25, 2015 Judgment.
8. On April 15, 2015, Hesse filed a verified, Amended Special Plea of
Double Jeopardy.2 In that Amended Special Plea, Hesse attached both
Judgments in support of that Amended Special Plea. The State did not file a
Response to that Amended Special Plea. The State’s silence on that point can
be taken as a confession that Hesse’s allegation of two separate judgments was
true;3 and that, as of April 15, 2015, the annotation had not been added to the
February 25, 2015 Judgment.
9. On June 2, 2015, the Court of Criminal Appeals stayed any further
proceedings in the underlying cause (No. 12-DCR-061186). See Exhibit No.
1, attached hereto and incorporated by reference for all purposes.
2
… Supp. C.R. p. 4.
3
… See, e.g., Moree v. State, 183 S.W.2d 166, 169 (Tex. Crim. App. 1944).
3
10. According to the information that the District Clerk provided to
the undersigned counsel, the physical file in Docket No. 12-DCR-061186 was
sent to the 240TH Judicial District Court on June 8, 2015. The District Clerk
does not know who requested the file be sent to the 240TH Judicial District
Court.
11. Again, according to the information that the District Clerk
provided to the undersigned counsel, after June 8, 2015, someone from the
Fort Bend County District Attorney’s Office came to the District Clerk’s Office
and requested that a supplemental Clerk’s Record be prepared and filed, to
show both Judgment of Contempt.
12. To quote Desi Arnaz, “Lucy, you’ve got some ‘splaining to do!”
Well, someone has “some ‘splaining to do” in this case. There needs to be a
hearing wherein all of these facts can be developed, with witnesses being
placed under oath and Findings of Fact and Conclusions of Law filed with this
Court.
13. Unless and until that happens, this Court should not grant the
District Clerk’s requested relief. At the very least, this Court should strike the
Second Supplemental Clerk’s Record and conduct or order a hearing on the
annotation, when it was added, by whom, etc.. This Court should grant Hesse
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general relief.
Respectfully submitted,
/s/ L.T. “Butch” Bradt
L.T. “Butch” Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478-3500
(281) 201-0700
Fax: (281) 201-1202
ltbradt@flash.net
Michael Mowla #24048680
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
(972) 795-2401
Fax: (972) 692-6636
michael@mowlalaw.com
Attorneys for Appellant,
David Christopher Hesse
CERTIFICATE OF SERVICE
I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P.,
certify that a true and correct copy of the foregoing Brief was delivered to:
Gail Kikawa McConnell, Ass’t District Attorney
301 Jackson Street, Room 101
Richmond, TX 77469
Gail.McConnell@fortbendcountytx.gov
On July 31, 2015.
/s/ L.T. “Butch” Bradt
L.T. “Butch” Bradt
5
Exhibit 1