Opinion
14-22-00648-CR
11-30-2023
ARIEL ALEJANDRO DOMINGUEZ-RAMIL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Cause No. 20-DCR-090737
Panel consists of Wise, Zimmerer, and Poissant Justices.
ABATEMENT ORDER
PER CURIAM
On October 26, 2023, this court ordered the clerk of the 240th District Court to deliver to the clerk of this court the original of State's exhibit 1, a video. The clerk was ordered to file the exhibit with this court on or before November 6, 2023. When the exhibit was not filed, on November 13, 2023, this court sent notice to the clerk of the 240th District Court to deliver to the clerk of this court the original of State's exhibit 1, a video. As of today, the requested exhibit has not been filed with this court.
Rule 34.6(f) of the Texas Rules of Appellate Procedure provides that an appellant is entitled to a new trial when the reporter's record or exhibits are lost, under the following circumstances:
(1) if the appellant timely requested a reporter's record;
(2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or-if the proceedings were electronically recorded-a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter's record, or the lost or destroyed exhibit, is necessary to the appeal's resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter's record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.Tex. R. App. P. 34.6(f).
Accordingly, the trial court is directed to conduct a hearing to determine the following: (1) whether appellant timely requested a reporter's record; (2) whether without appellant's fault, a significant exhibit has been lost or destroyed; (3) whether the lost exhibit is necessary to appellant's appeal; and (4) whether the parties can agree on replacement of the missing exhibit with a copy, or (5) if the trial court can determine that a copy accurately duplicates the missing exhibit with reasonable certainty. The court is directed to reduce its findings to writing and to have a supplemental clerk's record containing those findings filed with the clerk of this court, together with a reporter's record from the hearing, within 20 days of the date of this order.
The appeal is abated, treated as a closed case, and removed from this court's active docket. The appeal will be reinstated on this court's active docket when the trial court's findings and recommendations are filed in this court. The court will also consider an appropriate motion to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing in compliance with this court's order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.
If State's exhibit 1, a video, is filed with this court before the trial court can hold a hearing the case will be reinstated without the need of a hearing and findings by the trial court.