Opinion
NUMBER 13-15-00569-CR
10-05-2016
JUAN ELIGIO GARCIA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 398th District Court of Hidalgo County, Texas.
ORDER OF ABATEMENT
Before Justice Garza, Perkes, and Longoria
OrderPer Curiam
This cause is currently before the Court on appellant's fourth and fifth motions for extension of time to file the brief. A supplemental clerk's record was filed on March 18, 2016, and appellant's brief was originally due to be filed thirty days thereafter. See TEX. R. APP. P. 38.6(a). This Court has previously granted appellant three extensions of time totaling 150 days to file the brief. Appellant's fourth motion for extension of time requested seven additional days, until September 22, 2016, to file the brief. Appellant has now filed his fifth motion requesting additional time to file the appellate brief in this cause because the appellate record is incomplete.
Counsel states she has just discovered the clerk's record is incomplete. Several matters included in the designation were not included in the clerk's record, but are necessary for the resolution of this cause. Counsel states that one item not included in the clerk's record is a district court order dated August 15, 2012 denying appellant's motion to dismiss due to double jeopardy. Also, the clerk's record indicates several items designated were not available to be placed in the clerk's record.
Texas Rule of Appellate Procedure 34.5(e) provides that if an item designated for inclusion in the court's record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk's record or a supplement. See TEX. R. APP. P. 34.5 (e). If the parties cannot agree, the trial court must determine what constitutes an accurate copy of the missing item and order it to be included in the clerk's record or a supplement. See id. Determining what constitutes an accurate copy of the missing items in the clerk's record is, thus, a determination to be made by the trial court.
This situation requires us to effectuate our responsibility to avoid further delay and to preserve the parties' rights. See id. R. 37.3(a)(1). Accordingly, this appeal is ABATED and the cause REMANDED to the trial court.
Upon remand, the judge of the trial court shall immediately cause notice to be given and conduct a hearing to determine if the clerk's record, or any part thereof, has been lost or destroyed, and shall make appropriate findings under rule 34.5(e), if necessary. See id. R. 37.3 (a)(1). Otherwise, the trial court shall determine what steps are necessary to ensure the prompt preparation of a complete clerk's record and shall enter any orders required to avoid further delay and to preserve the parties' rights. If a filing designated for inclusion in the clerk's record has been lost or destroyed and the parties cannot agree, by written stipulation, for a copy of that item to be included in a supplemental record, the trial court shall determine what constitutes an accurate copy of the missing item and order it to be included in the clerk's supplemental record.
The trial court shall prepare and file its findings and orders and cause them to be included in a supplemental clerk's record which should be submitted to the Clerk of this Court within thirty days from the date of this order. Appellant's fourth motion for extension of time to file the brief is GRANTED. Appellant's fifth motion for extension of time is CARRIED WITH THE CASE.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 5th day of October, 2016.