Chitwood v. State

Full title: BRIAN KEITH CHITWOOD II, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals Fifth District of Texas at Dallas

Date published: Jan 19, 2016

No. 05-15-01010-CR (Tex. App. Jan. 19, 2016)

Opinion

No. 05-15-01010-CR No. 05-15-01330-CR

01-19-2016

BRIAN KEITH CHITWOOD II, Appellant v. THE STATE OF TEXAS, Appellee

ADA BROWN JUSTICE

On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F06-29453-V, F06-29454-V

ORDER

On December 1, 2015, this Court ordered court reporter Kimberly Xavier to file, within thirty days, the reporter's record of the June 1, 2007 hearing. The trial court's docket sheet reflects that Ms. Xavier was the deputy court reporter who recorded the hearing for the Auxiliary Court No. 7. To date, Ms. Xavier has neither filed the record nor communicated with the Court regarding the status of the record. The appeals cannot proceed until the issue of the reporter's record is resolved.

Accordingly, this Court ORDERS the trial court to make findings regarding the following.

• The trial court shall first determine whether the notes of the June 1, 2007 hearing are available and can be transcribed.

• If the trial court finds the notes are available and can be transcribed, the trial court shall next determine the date by which the record of the June 1, 2007 hearing will be filed.

• If the trial court determines the notes are not available or cannot be transcribed, the trial court shall make findings regarding whether appellant timely requested preparation of the record of the June 1, 2007 hearing, whether appellant is at fault for the loss or destruction of the notes, and whether the parties can agree on a substituted record.

We ORDER the trial court to transmit a record containing its written findings of fact, any supporting documentation, and any orders to this Court within THIRTY DAYS of the date of this order.

We DIRECT the Clerk to send copies of this order to Brandon Birmingham, Presiding Judge, 292nd Judicial District Court; Kimberly Xavier, official court reporter, Criminal District Court No. 3; and to counsel for all parties.

We ABATE the appeals to allow the trial court to comply with this order. The appeals shall be reinstated thirty days from the date of this order or when the findings are received.

/s/ ADA BROWN

JUSTICE