Opinion
05-23-00167-CR
10-02-2023
KEVION R. WILLS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F21-11831-H
ORDER
ROBERT D. BURNS, III CHIEF JUSTICE.
On September 20, 2023, court reporter Yolanda Atkins filed the reporter's record. On September 21, 2023, this Court ordered Ms. Atkins to remedy problems with the filing of the exhibits in the reporter's record.
Concerning State's exhibits 28, 43, 45, 84, and DX 8, which were photographs, the Court ordered Ms. Atkins to resubmit those exhibits because they did not appear to be properly scanned into the record. On September 28, 2023, Ms. Atkins filed a supplemental reporter's record containing those exhibits. The exhibits in the supplemental reporter's record appear to be properly scanned, and the issues with those exhibits are resolved.
Concerning State's exhibits 9, 106, 108, 109, 110, 111, 112, 113, 114, and 119, which are audio or video exhibits, we ordered Ms. Atkins to file these exhibits through the TAMES portal. We also ordered her to file State's exhibit 144, which is described in the exhibit index as "Instagram Powerpoint." On September 25, 2023, Ms. Atkins filed State's exhibit 110 through the TAMES portal. On September 21, 2023, Ms. Atkins filed a response to the order stating, "SX 9, 106, 108, 109, 111, 112, 114, 119, 144 are not in the TAMES format and cannot be electronically filed." Ms. Atkins's response did not address State's exhibit 113 (described in the exhibit index as "CDR - Kassandra Williams"), and this exhibit has not been filed through the TAMES portal.
Our September 21, 2023 order also required Ms. Atkins to file State's exhibit 77, which is described in the exhibit index as "Photo - Crime Scene." In her response, Ms. Atkins states, "SX 77 is unavailable."
Our September 21, 2023 order also required Ms. Atkins to file State's exhibit 143, which is described in the exhibit index as "Photo - Firearm casing." Ms. Atkins states in her response, "SX 143 are cartridges, which is referenced incorrectly as 'photograph' in the Order." The September 21, 2023 order correctly describes what the index states, which is that the exhibit is a photograph. It is not clear whether Ms. Atkins meant to state in her response that the exhibit was "referenced incorrectly" in the exhibit index instead of stating it was referenced incorrectly "in the Order."
Accordingly we ORDER Ms. Atkins to file with this Court on or before October 17, 2023, CDs or DVDs containing copies of State's exhibits 9, 106, 108, 109, 111, 112, 113, 114, 119, and 144. No CD or DVD may contain more than one exhibit.
We ORDER the trial court to hold a hearing reported by a court reporter with Ms. Atkins and counsel for appellant and the State present concerning State's exhibits 77 and 143. The trial court shall make a finding whether State's exhibit 77 is lost or destroyed, and if so, whether the loss or destruction was without the fault of appellant. If exhibit 77 has been lost or destroyed, the trial court shall make a finding whether the loss or destruction was without the fault of appellant. If exhibit 77 has been lost or destroyed, the trial court shall make findings whether the exhibit is necessary to the appeal's resolution, and whether the exhibit can be replaced by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
The trial court shall also make a finding whether State's exhibit 143 is a photograph of "Firearm casing" as stated in the exhibit index or whether it is the casing itself. If the trial court finds that State's exhibit 143 is a photograph, the trial court shall make findings whether State's exhibit 143 has been lost or destroyed, and if so, whether the loss or destruction was without the fault of appellant. If the exhibit has been lost or destroyed, the trial court shall make findings whether the exhibit is necessary to the appeal's resolution, and whether the exhibit can be replaced by agreement of the parties or with copies determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
We ORDER the trial court to transmit the findings to this Court within THIRTY DAYS of the date of this order. We ORDER court reporter Sharyl Zeno to file a reporter's record of the hearing required by this order within THIRTY DAYS of the date of this order.
We DIRECT the Clerk to send copies of this order to the Honorable Tina Clinton, Presiding Judge, Criminal District Court No 1, Dallas County; Sharyl Zeno, Official Court Reporter, Criminal District Court No. 1; Yolanda Atkins, Court Reporter; and counsel for all parties.
We ABATE this appeal for the trial court to comply with this order. The appeal shall be reinstated when the Court receives the trial court's findings or at such other time as the Court deems appropriate.