Pike v. State

772 S.W.2d 130 (1989)

James Nelson PIKE, Appellant, v. The STATE of Texas, Appellee.

Nos. 1325-88, 1326-88.

Court of Criminal Appeals of Texas, En Banc.

June 7, 1989.

Danny D. Burns, Fort Worth, for appellant.

Dan M. Boulware, Dist. Atty., Lisa K. Maddux, Asst. Dist. Atty., Cleburne, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

PER CURIAM.

Appellant was convicted by a jury for engaging in organized criminal activity by unlawful manufacture and delivery of methamphetamine, aggravated. The jury set punishment at 99 years confinement and $15,000.00 fine for both cases. The convictions were affirmed on appeal. Pike v. State, 758 S.W.2d 357 (Tex.App.Waco 1988). Appellant filed one petition for discretionary review in which he raised three *131 grounds for review that pertain to both cases.

In his second ground for review, appellant contends that the Court of Appeals erred in overruling his claim that the trial court erred in admitting evidence of parole contained on a tape recorded statement obtained by an undercover narcotics officer. The Court of Appeals refused to consider the point since the tape was not included in the record. Appellant contends that supplementation should have been permitted since his designation of record included all exhibits offered in the case and since he moved for supplementation as soon as the omission was discovered.

Under the instant circumstances, the court of appeals should have permitted supplementation of the record to include the transcription of the tape or the tape, as requested in the designation of record. See Jones v. State, 742 S.W.2d 398 (Tex.Cr. App.1987), and Durrough v. State, 693 S.W.2d 404 (Tex.Cr.App.1985). See also Tex.R.App.Pro. 51(d). Therefore, in the exercise of our supervisory power and without expressing an opinion on the merits of appellant's claim, we vacate the judgment of the Court of Appeals and remand for supplementation to include the tape, and for reconsideration of appellant's point of error below. We make no ruling on appellant's other grounds for review at this time.

McCORMICK, P.J., believing that the Court of Appeals correctly exercised its discretion pursuant to Tex.R.App.Pro. 55 and 50(d), dissents to the action the majority takes.