Opinion
No. 04-18-00414-CR
01-11-2019
John Bryan FINCH, Appellant v. The STATE of Texas, Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 16-07-0222-CRA
Honorable Stella Saxon, Judge Presiding
ORDER
Staci Slayden, the court reporter responsible for preparing the reporter's record, filed the final portions of the reporter's record on December 14, 2018. Two exhibits filed by Ms. Slayden, Exhibits 199 and 222, are both identified in the master index of the reporter's record as "CD-Audio recording phone call jail cell - Finch." This Court has been unable to play the audio recordings found on Exhibits 199 and 222. Ms. Slayden has informed this Court that she is also unable to play the audio recordings. Therefore, it appears that Exhibits 199 and 222 have been lost or destroyed.
Pursuant to Texas Rule of Appellate Procedure 34.6(f), an appellant is entitled to a new trial if, without his fault, a significant exhibit has been lost or destroyed; the lost or destroyed exhibit is necessary to the appeal's resolution; and "the lost or destroyed exhibit cannot 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." TEX. R. APP. P. 34.6(f). Therefore, we ABATE this appeal to the trial court and ORDER the trial court to conduct a hearing to answer the following questions:
(1) Are Exhibits 199 and 222 lost or destroyed?
(2) Are Exhibits 199 and 222 necessary to the appeal's resolution?
(3) Can Exhibits 199 and 222 be replaced either by agreement of the parties or with a copy determined by the trial court to duplicate with reasonable certainty the original exhibits?
We ORDER the trial court to file its written findings of fact and conclusions of law, along with recommendations addressing the above-enumerated questions, with the trial court clerk no later than twenty days from the date of this order. We ORDER the trial court clerk to file a supplemental clerk's record in this court no later than ten days after the trial court files its findings of facts and conclusions of law. We ORDER the court reporter to file in this court a supplemental reporter's record of the hearing, along with copies of any documentary evidence admitted, no later than twenty days after the date of the hearing.
All appellate deadlines are SUSPENDED pending further orders from this court.
/s/_________
Liza A. Rodriguez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of January, 2019.
/s/_________
KEITH E. HOTTLE,
Clerk of Court