Bailey v. State

Full title: JAMES JERRIOD BAILEY, Appellant v. THE STATE OF TEXAS, Appellee

Court: TENTH COURT OF APPEALS

Date published: Jul 19, 2012

No. 10-12-00050-CR (Tex. App. Jul. 19, 2012)

Opinion

No. 10-12-00050-CR

07-19-2012

JAMES JERRIOD BAILEY, Appellant v. THE STATE OF TEXAS, Appellee

PER CURIAM

From the 278th District Court

Leon County, Texas

Trial Court No. CM-11-150

ABATEMENT ORDER

Appellant has filed a "Motion to Abate Appeal to Correct Record." Appellant states that the trial court considered a report by Dr. Stephen Mark at Appellant's sentencing hearing; however, the report was never marked as an exhibit or filed and thus does not appear in the appellate record. Appellant's counsel asserts that when he discovered the omission of this report from the record, he contacted the State's attorney seeking an agreement to correct the record pursuant to Rule of Appellate Procedure 34.6(e)(1), but the State's attorney would not agree to any supplementation. Appellant thus requests that this Court abate this appeal in accordance with Amador v. State, 221 S.W.3d 666, 674-76 (Tex. Crim. App. 2007), and Rule of Appellate Procedure 34.6(e)(2), (3) so that the trial court may determine whether the report is the document that the court reviewed and considered in assessing Appellant's punishment.

We grant Appellant's motion and abate this appeal for a period of thirty (30) days from the date of this order for the trial court to—after notice and a hearing—settle the dispute. See TEX. R. APP. P. 34.6(e)(2), (3); Amador, 221 S.W.3d at 674-76. If necessary, the trial court shall prepare written findings of fact and conclusions of law with regard to the issues identified in this abatement order. The trial court clerk shall prepare a supplemental clerk's record containing such findings of fact and conclusions of law as well as any pleadings, motions, responses, or objections filed with regard to this matter and any orders signed by the trial court. The trial court clerk and the court reporter shall file their supplemental records with the Clerk of this Court within forty-five (45) days after the date of this order.

PER CURIAM Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins
Motion granted; appeal abated
Do not publish