No. 01-14-00641-CR

In the

COURT OF APPEALS

For the

FIRST SUPREME JUDICIAL DISTRICT

at Houston

______________________________________

On Appeal from the 434th District Court of

Fort Bend County, Texas

Cause Number 11-DCR-056513

______________________________________

CORNELIUS MILAN HARPER, Appellant

v.

THE STATE OF TEXAS, Appellee

_____________________________________

APPELLANT’S MOTION TO ABATE PROCEEDINGS FOR 

CORRECTED REPORTER’S RECORD

AND MOTION FOR EXTENSION OF TIME

______________________________

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF 

APPEALS:

COMES NOW, Cornelius Milan Harper, Appellant herein, by and through 

his attorney of record, Kristen Jernigan, and files this, his Motion to Abate 

Proceedings for Corrected Reporter’s Record and Motion for Extension of Time. 

In support of said motion, Appellant would show the Court the following:

1. Appellant’s brief is due in this case on August 5, 2015.

2. Appellant seeks an abatement and extension of time because multiple 

volumes of the Reporter’s Record are unintelligible.

ACCEPTED

01-14-00641-cr

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/21/2015 2:48:54 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/21/2015 2:48:54 PM CHRISTOPHER A. PRINE Clerk
3. The undersigned sent an initial written request to the Clerk of the 

Court for the Clerk’s Record and the Reporter’s Record. The Clerk of the Court 

mailed the undersigned a disk with that record. The Clerk’s Record in this case is 

1,034 pages and the Reporter’s Record purportedly consists of seventy-one 

volumes. 

4. In reviewing the Reporter’s Record in preparation of drafting 

Appellant’s brief, the undersigned discovered that fifteen volumes of the 

Reporter’s Record were missing. 

5. The undersigned informed the Court of the incomplete record and the 

Court ordered the Court Reporter to file the additional volumes. 

6. The Court Reporter filed the fifteen additional volumes on July 5, 

2015. Once notified, the undersigned sent an additional request for the complete 

record in this case. The undersigned received the record by mail on July 20, 

2015. 

7. On today’s date, July 21, 2015, the undersigned began reading the 

fifteen additional volumes1 and discovered that virtually all of the volumes are 

unintelligible. In several volumes, the speakers are not identified and there are 

indications that the Court Reporter could not or did not transcribe portions of the 

proceedings. Some examples are the following:

From Volume 28:

“THE COURT: All right. Let's bring in

Jane dawn. ^^

THE BAILIFF: She's not here yet, Judge.

THE COURT: Okay. ^^ Nickels arbans

county?” (RR28: 5). 

From Volume 37:

“MR. HANNA: There's four on there. And

when you were walking in Katherine and I -- she wanted

 1

 The undersigned has already read and reviewed the other 56 volumes in this case and has 

been waiting on the additional fifteen volumes to continue drafting the brief in this case.
to talk to me one of the things we discussed yesterday

about the date and time in which we are having the

entire panel come back. And whether or not weave and to

make plans.

THE COURT: Well, I was hoping to have

them come back on wed morning. I think that's addable

day but I Vice President consulted with you all.” (RR37: 3). 

“MR. HANNA: I see dog dog I agree with

everything is that mark said just now booted things, you

know, the defense is going to ask for some more strikes.

I don't know if you're going to give them or not but

when we get to the end preemptories if you were two

extra or three, that would effect.

THE COURT: I had that in the process dog

dog that's in your call couldlations.

SPEAKER TWO: All right so is everybody in

agreement that we definitely work Monday and at least

maybe Tuesday if we have to and then come in for the

jury process on wed.” (RR37: 5). 

From Volume 38:

“THE COURT: Okay let's bring in 186

lessees toss. And while you're out there you can tell

97, yes, sire willsen that he's excused and thanagesy

willsen and give he or she an excuse. (RR38: 5).

THE COURT: They won't be mad there not

going to trio change your mind r.

SPEAKER TWO: Juror okay.

THE COURT: This is a really unusually

that has been levied. Because normally and have an

opportunity to answer a Bufferin of questions for an
hour of so.” (RR38: 7). 

From Volume 44:

“MR. HANNA: Location to be did remembered

by defense fill fill by the defendant didn't want went

of the objections.

MR. HANNA: When I said it's all

admissible without once it's if it's missing is he

wanted to encourage or wanted to preserve the pretrial

motions to the admissibility of the evidence and whether

or not annona had the authority to consent things that I

don't know they can argue without physically having it's

a constitutionally law enforcement violation kind of

issue.” (RR44: 4-5). 

“THE COURT: Okay Mr. Han that is is that

right between what you stated and Mr. Doubt where this

could take place and a that the state will have it

admitted before it leaves the courtroom.

MR. HANNA: Correct and so that we all not

condition maybe admit it referred in argument if it is a

piece of evidence for consideration.

MR. DOGGETT: It will be committed all

though addition that we immediate previously and that

were ruled on.” (RR44: 7). 

From Volume 51:

“SPEAKER ONE: I'm not aware of a separate

Wac for a cap cap from any other case. So these that

the rules should be different or that the just because

of the charge in this case are completely the rules are

the rules and they are the same in every case yes it

does provide inessential for the state of mind that it
be a statement that relates state of mind at the time

and it also requires that that deck be recommend vaunt

and her Ms. Tartans in July and August of 2010 in

relation to bickering with her brother is not relevant

in this case. If the State that they had a hungy doe

for the defense would be to ask her were they're times

and if she denies that then bring in something to

impeach her. That does not require heritage of a

members of the jury she denies. 

She hadn't even hadthat opportunity at this point. The brief that the

defense 8033 I do want to point out to the Court that

all of the cases sided are cases that statement of a

victim in a murder to someone else about their state of

mind involving the defendant in those cases things like

I'm wored about this person hurting me which are

completely sure in a state of mind regarding beliefs

about the allege are very relevant here they're not real

which is part of 80 approximate three and so because of

that limit ask questions impeach her with actual which

is not what they have done so far.

THE COURT: All right. I'm not going to

let the statements in underle 8033. I will allow them

to be used to impeach inproperty circumstances. So

that's my ruling. Are y'all ruddy to go forward.

SPEAKER TWO: Their glass.

THE COURT: Yes.

SPEAKER TWO: They says that he would like

to come talk to corn on Monday morning and he could

probably be through with him by noon and he would be

here no later than 9:30 perhaps we could release the

jury for a half of day and tell them to report at 1:30

to tell him that yes you said okay with all this and

that the day on which we decide to do the hearing and I

told him I would get back with him sometimes today.”

(RR51: 7-8). 
From Volume 57:

“MR. FELCMAN: I'm asking you to deny that

judge,none of them are separate offenses, they are all

the same way of committing the very same offenses

alleged in the paragraphs. Therefore, I am asking you to

denyCAN'T GET THE WORD AFTER DENY.” (RR57: 15).

 

“MS. BOLIN: And it be collected by the

it's not admitted and not to go back probably even

nonnish as an aid to them.” (RR57: 20). 

“MR. DOGGETT: Well, we object and we think

it violates the 6th amendment right to confront and

cross-examine and it's just somebodies opinion I have a

403 objection that these are alternate opinions about

what two different people hear, just two different

opinions about what they hear on the tape. It's

inappropriate the jury can decide what they hear on the

tape not what they can hear on the tape so estrin you I

don't feel object we and ask that you not allow it.” (RR57: 71). 

From Volume 58:

“THE COURT: If you would please hand that

to my bailiff. All right. We the jury do herby fine

the defendant guilty of the offense of cap cap as

charged in the indictment signed by the foreman. Do you

wish to have the jury poled.” (RR58: 4). 

“MR. DOGGETT: We have one witness

here.^^^CHECK SPEAKER

MR. HANNA: That you put on.

MR. DOGGETT: If you're willing to put

them out of order, we will let them do that.
MS. BOLIN: Should we do that tomorrow.

MR. HANNA: Tomorrow or Friday well no we

are not looking^^^CANT HEAR OVER THE DOOR

MS. SCARDINO: Will y'all be finished, if

you can get ever body here, will you be finished by the

end of the day Thursday.

MR. HANNA: Our estimate was two full days

of testimony so that would put us, today is Wednesday so

that would put us till Friday afternoon.

MS. SCARDINO: Okay. ^^^CHECK SPEAKER” (RR58: 9). 

“Start. Rachel, this is the first day of

punishment. #.

THE COURT: Mr. Hanna, are you going to

give an opening statement?

SPEAKER ONE: Judge I don't think I need

more than 10.

SPEAKER TWO: Yes short.

THE COURT: That's fine.” (RR58: 12). 

From Volume 59:

“Q. What were you doing the first time you became

involved in an innovation innovation?

A. I of 28 pun north six, and officer ginningens

another officer in our juvenile conviction as the school

resource officer. He contacted me on the radio and

wanted me to come pack to with about a student.
Q. And what did you do as a result of that

contact?

A. I met with ginningens he tolt me there had been

some pres with Mr. Harper and he called me back to the

office area. We're walking up to the front by a for

instance pal who said Cornelius had been on the stress

passing list.” (RR59: 7). 

“Q. What was his tone of voice like?

A. His tone of voice was serious and our.bitch Ass

hoes and apples threated and asews to be of the printery

bull.” (RR59: 11).

8. Appellant respectfully requests that this case be abated so that the 

Court Reporter can correct the fifteen volumes submitted after the filing deadline 

had already passed. 

9. The undersigned has spoken with trial counsel who has indicated his 

willingness to review the corrected record and compare it with his notes from trial 

to verify whether the corrected record is in fact, true and correct. This is 

necessary because there are serious questions about the Court Reporter’s ability to 

correct the record given her notations that she is unable to determine who a speaker 

was or what was said.

10. For the reasons set forth above, Appellant respectfully requests that 

the deadline for filing Appellant’s brief will be reset until sixty days after the 

complete Reporter’s Record in this case is filed so that the undersigned can review 

the corrected record, confer with trial counsel and draft the remaining portions of 

Appellant’s brief. TEX. R. APP. P. 38.6(a)(2).
PRAYER

 WHEREFORE, PREMISES CONSIDERED, Appellant respectfully 

requests that this Court grant his Motion to Abate for Corrected Reporter’s Record 

and Motion for Extension of Time.

Respectfully submitted,

_______/s/__Kristen Jernigan______

KRISTEN JERNIGAN

State Bar Number 90001898

207 S. Austin Ave.

Georgetown, Texas 78626

(512) 904-0123

(512) 931-3650 (fax)

Kristen@txcrimapp.com

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the 

foregoing Appellant’s Motion for Extension of Time has been mailed to the Fort 

Bend County District Attorney’s Office, 301 Jackson Street, Richmond, Texas 

77469, on July 21, 2015.

__/s/ Kristen Jernigan__________________

Kristen Jernigan