05-15-00689-CR Cause No. 219-82237-2013 STATE OF TEXAS § IN THE 219TH FILED IN § 5th COURT OF APPEALS DALLAS, TEXAS V. § DISTRICT COURT 9/14/2015 8:07:16 PM § LISA MATZ AMON TAWANDA DZWAIRO § COLLIN COUNTY, TClerk EXAS FINDINGS OF FACT The Court enters the following Findings of Fact pursuant to the Appellate Court’s Order dated August 18, 2015: 1. The Defendant desires to prosecute the appeal.

2. Defendant is indigent and entitled to proceed without payment of costs of the reporter’s record. Defendant’s current counsel appears to be prosecuting the appeal as quickly and effectively as possible. Therefore, no new counsel is necessary at this time.

3. The name and address of the Court reporter who recorded the proceedings is : Ms. Indu Bailey 2100 Bloomdale Rd., Ste. 20132 McKinney, TX. 75071 4. The Court Reporter’s explanation for the delay is due to several factors:

Findings of Fact Page 1 of 2 a. The trial was a lengthy one lasting over a week with numerous witnesses.

b. There are multiple appeals coming due at or around the same time as this appeal.

c. Ms. Bailey is the assigned court reporter for the 219th District Court, which is a general jurisdiction court with a very active daily docket in Criminal as well as other matters. Her work schedule requires her presence in the courtroom on a daily basis, thus delaying her ability to address the requested record.

5. Ms. Bailey is requesting a six week extension for this record.

SIGNED THIS 11th DAY OF SEPTEMBER, 2015.

________________________________ Scott J. Becker Presiding Judge, 219th Judicial District Court Collin County, Texas

Findings of Fact Page 2 of 2 Page 1

1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 COURT CAUSE NO. 219-82237-2013 THE STATE OF TEXAS ) IN THE DISTRICT COURT ) 4 ) VS. ) COLLIN COUNTY, TEXAS 5 ) ) AMON TAWANDA DZWAIRO ) 219TH JUDICIAL DISTRICT

12 ********************************************************* 13 HEARING *********************************************************

21 On the 11th day of September, 2015, the following proceedings came on to be held in the above-titled and -numbered cause before the Honorable Scott. J. Becker, Judge Presiding, held in McKinney, Collin County, Texas.

25 Proceedings reported by computerized stenotype machine.

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1 APPEARANCES MS. CYNTHIA ANN WALKER SBOT NO. 24014843 COLLIN COUNTY DISTRICT ATTORNEY'S OFFICE Collin County Courthouse 2100 Bloomdale Road McKinney, Texas 75071 Telephone: (972)548-4323 E-mail: [email protected] 6 ATTORNEY FOR THE STATE OF TEXAS MR. JOHN LEE SCHOMBURGER SBOT NO. 17801540 THE LAW OFFICE OF JOHN SCHOMBURGER Republic Drive Suite 200 Plano, Texas 75074 Telephone: (972)978-2218 E-mail: [email protected] 12 ATTORNEY FOR THE DEFENDANT ALSO PRESENT Defendant appearing telephonically Indu Bailey - Official Court Reporter, 219th District Court

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1 CHRONOLOGICAL INDEX VOLUME 1 OF 1 VOLUME 2 HEARING 3 Page Vol.

SEPTEMBER 11, 2015 Case called................................... 04 1 Statement by Ms. Bailey....................... 06 1 Statement by Mr. Schomburger.................. 07 1 End of proceedings............................ 09 1 Court reporter's certificate.................. 10 1

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1 P R O C E E D I N G S 2 (September 11, 2015; 9:36 a.m.)

3 THE COURT: This is Cause No. 219-82237-2013, State of Texas versus Amon Tawanda Dzwairo.

5 Any attorneys present please identify yourselves for the record.

7 MR. SCHOMBURGER: John Schomburger, attorney for the Defendant on appeal.

9 MS. WALKER: Cynthia Walker, attorney for the State of Texas.

11 THE COURT: We're just making a record here this morning. We're about to call the Defendant so he can participate telephonically as soon as I can find the phone system in here. The Court of Appeals has asked us to make a record about the status of the transcript in this case.

16 We're just taking the time to do that here. One moment.

17 (Brief recess) 18 (The Court placing telephone call) 19 THE COURT: Hello, this is Judge Becker from Collin County.

21 TELEPHONE SPEAKER: Okay.

22 THE COURT: I was told I could call this number and get one of your inmates on the phone to participate telephonically in a hearing. I'm looking for Amon Dzwairo.

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1 TELEPHONE SPEAKER: Just a moment.

2 MS. BAGLEY: Ms. Bagley (phonetic).

3 THE COURT: Ms. Bagley, this is Judge Becker of Collin County in the 219th District Court.

5 MS. BAGLEY: Yes, sir.

6 THE COURT: I'm trying to get Amon Dzwairo on the phone so we can have him participate in this telephonically in this hearing.

9 MS. BAGLEY: Yes. Hold on one second.

10 THE COURT: Mr. Dzwairo, can you hear me?

11 THE DEFENDANT: Yes, sir.

12 THE COURT: We're present in the courtroom.

13 Your appellate attorney, Mr. Schomburger is present, a prosecutor for the State of Texas. And we also have the court reporter from the case here. And she's going to get sworn in in a second and just give us an explanation as to the status of the transcript, because that's what the Court of Appeals has asked us to do at this time.

19 And I want to make sure you can participate.

20 Even though you can't be here, you can at least hear what's going on remotely through the telephone. Can you hear me?

22 THE DEFENDANT: Yes, I can, sir.

23 THE COURT: Very good.

24 Ms. Bailey, if you'll step up and raise your right hand.

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1 (Ms. Bailey was sworn) 2 THE COURT: If you'll stand right next to that microphone, otherwise Mr. Dzwairo will have difficulty hearing you. You see how close I am? You have to be that close. You'll feel really loud here, otherwise he won't hear anything on the other end.

7 If you could, please, give us an update as to what the status of the record is in his particular case.

9 Thank you.

10 MS. BAILEY: This is Indu Bailey, the court reporter for the 219th District Court. On State versus Dzwairo, I have started the record. But it was a long record, and so it's not going to be completed by the time required by the Court of Appeals. I'm asking for six weeks.

16 THE COURT: Okay. And when you say it was a long trial, I presided over it, but I can't recall, was it over a week?

19 MS. BAILEY: Yes.

20 THE COURT: Okay. And without going into the details of any other cases, do you have any other records you're also having to work on at this time?

23 MS. BAILEY: Yes, sir. The other one that's due, or about the same time, are State versus Quincey, Lajoshua Davis. And that is due also right about the same

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1 time that the Dzwairo record is due. State versus Quincey will be filed next week. And that's when I will start on Dzwairo and try to finish it within the next six weeks. I have at least about another six records on my plate right now.

6 THE COURT: Is there anything else you wanted to let the Court of Appeals know about this one?

8 MS. BAILEY: No, sir.

9 THE COURT: All right. You can step back.

10 Mr. Schomburger, I presume it is, of course, the Defendant's desire to continue to pursue the appeal; is that correct?

13 MR. SCHOMBURGER: We have corresponded, Judge, and it is the Defendant's desire to pursue the appeal. There's no doubt about that, Judge.

16 THE COURT: Did you hear all of that, Mr. Dzwairo?

18 THE DEFENDANT: Yes, sir, I did.

19 THE COURT: Is there anything else anybody thinks they need to put on the record at this time?

21 MS. WALKER: Nothing from the State.

22 MR. SCHOMBURGER: Judge, I do.

23 THE COURT: Go ahead, Mr. Schomburger.

24 MR. SCHOMBURGER: I would like the record to reflect that the court reporter is the official court

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1 reporter for the 219th District Court. The 219th District Court does have an active trial docket, does both civil and criminal, which consumes a lot of time for the official court reporter, aside from the other cases she's working on right now. So that factors into her busy schedule.

6 Judge, I would also like the record to reflect that at the time that I was appointed on the case, the record due date had already expired. The trial attorneys filed notice of appeal, didn't intend to be the appellate attorneys. And while -- I don't think they actually withdrew from the case at that point. So the record expired.

13 I was appointed on the case. I filed a request for the record, but by that time it had already expired, so that created the problem that we have.

16 THE COURT: And there was some issue, I think, at the time, because Mr. Dzwairo did have retained counsel, and there was a hearing necessary to determine if he had acquired indigent status post trial, which is not uncommon. There was a little delay in that too; is that correct?

22 MR. SCHOMBURGER: Yes, sir, that's correct.

23 THE COURT: Thank you for the addition, Mr. Schomburger.

25 Anything else anybody thinks they need to

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1 put on the record?

2 MS. WALKER: Nothing from the State, Your Honor.

4 MR. SCHOMBURGER: No, sir.

5 THE COURT: And we'll recess this matter.

6 Mr. Dzwairo, did you hear all of that?

7 THE DEFENDANT: Yes, sir, I did.

8 THE COURT: Very good, sir. Then I'm going to hang up. You can go about your business. I appreciate your patience and flexibility.

11 Thank you to everybody who is present here today.

13 MR. SCHOMBURGER: Thank you, Judge.

14 THE DEFENDANT: Thank you.

15 (End of proceedings, 9:44 a.m.)

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1 STATE OF TEXAS ) COUNTY OF COLLIN ) 3 I, Tonya Lebo, Deputy Court Reporter in and for the 219th District Court of Collin County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and -numbered cause, all of which occurred in open court or in chambers and were reported by me. 11 I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

14 WITNESS MY OFFICIAL HAND on this, the 14th day of September, 2015.

18 Tonya Lebo, CSR #7891 Deputy Court Reporter 19 219th District Court Collin County, Texas 20 2708 Patriot Drive Melissa, Texas 75454 21 Telephone: (972)998-5878 E-mail: [email protected]

Tonya Lebo, CSR #7891 (972)998-5878