Opinion
05-22-01230-CR
02-05-2024
BYRON KEITH FLEMING, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F18-00120-K
ORDER
ERIN A. NOWELL JUSTICE
The clerk's record filed November 22, 2023 is incomplete because it does not include the indictment on which appellant was tried and convicted of sexual assault. The indictment in the clerk's record charges appellant with aggravated sexual assault, but the reporter's record shows that the indictment on which appellant was arraigned at trial charged appellant with sexual assault. The jury charge at the guilt stage of the trial states appellant "stands charged by indictment with the offense of sexual assault," and the jury's verdict states, "We, the jury, find the Defendant guilty of sexual assault as charged in the indictment." Appellant's counsel filed a motion to supplement the clerk's record with the amended indictment and stated she "has reached out to the Assistant District Attorney who tried the case and has confirmed that there was an amended indictment filed." This Court granted the motion to supplement the record and ordered the district clerk to file a supplemental clerk's record containing the amended indictment. The district clerk sent this Court a letter stating, "The district clerk has reached out to the originating clerk and Appellant [sic] desk have [sic] not received these documents to be processed."
Accordingly, we ORDER the trial court to hold a hearing within THIRTY DAYS of the date of this order and make findings concerning whether there is an amended indictment and whether any amended indictment has been lost or destroyed. If the court finds there is an amended indictment that has not been lost or destroyed, the court shall find whether the indictment has been filed with the district clerk; if the court finds the amended indictment has not been filed with the district clerk, the court shall cause the amended indictment to be filed with the district clerk. If the court finds the indictment was amended but the amended indictment has been lost or destroyed, then the trial court shall find whether the parties can agree on a copy of the amended indictment. If the parties can agree on a copy of the amended indictment, then the parties shall by written stipulation deliver a copy of the amended indictment to the trial court clerk for inclusion in a supplemental clerk's record. If the parties cannot agree, then the trial court shall determine what constitutes an accurate copy of the amended indictment and shall order it be included in a supplemental clerk's record. See Tex. R. App. P. 34.5(e).
We ORDER the trial court to transmit its findings and any orders to this Court within FORTY-FIVE DAYS of the date of this order.
We ORDER the court reporter to file a supplemental reporter's record containing a transcription of the hearing required by this order within FORTY-FIVE DAYS of the date of this order.
We ORDER the district clerk to file a supplemental clerk's record containing a copy of the amended indictment within FORTY-FIVE DAYS of the date of this order.
We ABATE this appeal to enable the trial court to comply with this order. This appeal will be reinstated when the trial court's findings are filed in this Court or at such other time as the Court deems appropriate.
We DIRECT the Clerk to send copies of this order to the Honorable Dominique Collins, Presiding Judge, Criminal District Court No. 4, Dallas County; Felicia Pitre, Dallas County District Clerk; Charon Evans, Official Court Reporter, Criminal District Court No. 4; Christina O'Neil, Chief Judicial Staff Counsel for the Criminal District Courts, Dallas County; and counsel for all parties.