Opinion
No. 10-14-00115-CR
02-19-2015
KENNETH BELL, Appellant v. THE STATE OF TEXAS, Appellee
From the County Court Navarro County, Texas
Trial Court No. C34388-CR
ORDER
Kenneth Wayne Bell was convicted of burglary of a habitation and sentenced to 43 years in prison. See TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011). The appellate record in this appeal has been filed and appellant's brief is currently past due.
Appellant has filed a motion to abate the appeal due to inaccuracies in the clerk's record filed on July 8, 2014. Appellant contends that in preparing his brief, counsel for appellant discovered that the clerk's record contains documents from a different case number with no explanation as to why they appear in the clerk's record in this case; the indictment is not file stamped and there is no indication on its face of when it was filed; the clerk's index suggests that the indictment was filed before the term stated in the indictment; and a Notice of Intent to Enhance Punishment appears in the clerk's record submitted with a different trial court case number heading. Counsel for appellant suspects that the documents are from a separate case involving appellant that was dismissed. Appellant requests that this Court abate this appeal to the trial court to conduct a hearing to determine the proper contents of the clerk's record on appeal and to order the trial clerk remove the record and submit a new clerk's record in accordance with the findings of the trial court. Appellant also filed a motion for extension of time to file his brief, citing the inaccuracies in the clerk's record as the reason for the extension.
Although the Rules of Appellate Procedure place the burden on this Court's Clerk to direct the trial court clerk to correct any inaccuracies in the clerk's record, see TEX. R. APP. P. 34.5(d), we recognize that the Clerk of this Court is not prepared to make the type of determinations appellant is requesting.
Accordingly, appellant's motion to abate is granted. This appeal is abated to the trial court to hold a hearing within 14 days from the date of this order to determine the proper contents of the clerk's record in this appeal and, if necessary, order the trial court clerk to submit a new clerk's record to this Court in accordance with the findings of the trial court. The trial court is also ordered to prepare oral or written findings which must be contained in a supplemental clerk's record or supplemental reporter's record, whichever is necessary, and filed with this Court within 21 days from the date of this order.
Because we have abated this appeal, appellant's brief is not currently due. Accordingly, appellant's motion for extension of time to file his brief is dismissed as moot. A new briefing schedule will be imposed upon the reinstatement of this appeal.
PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Motion to abate granted
Motion for extension of time dismissed as moot
Order issued and filed February 19, 2015