Opinion
No. 08-11-00368-CR
02-27-2014
TRAVIS KIRCHNER, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the
41st District Court
of El Paso County, Texas
(TC#20100D00899)
ORDER
The Appellant has raised two issues challenging a supplemental limiting instruction in the punishment charge given to the jury during their punishment deliberations. We previously requested that the trial court clerk file a supplemental clerk's record containing the supplemental instruction but the clerk has indicated that the instruction is not contained in the trial court's file. On its own motion, the Court has determined that it is necessary to ABATE the appeal in order for the trial court time to conduct a hearing to determine: (1) if the supplemental limiting instruction was designated for inclusion in the clerk's record pursuant to TEX.R.APP.P. 34.5(a); (2) if the supplemental limiting instruction in question was actually given to the jury; (3) whether the supplemental limiting instruction discussed by the trial court and the parties on the record is the same as the instruction actually given to the jury; and (4) whether the supplemental limiting instruction is lost or destroyed. If the trial court makes a determination that the supplemental limiting instruction was designated for inclusion in accordance with TEX.R.APP.P. 34.5(a) and the instruction in question is lost or destroyed, the trial court must make a determination of what constitutes an accurate copy of the missing item and order it to be included in the clerk's record or a supplement if possible. See TEX.R.APP.P. 34.5(e).
Therefore, we hereby ORDER the trial court to conduct a hearing on or before March 31, 2014. After conducting the hearing, the trial court shall forward its findings and any orders entered to the District Clerk of El Paso County, Texas, on or before April 15, 2014. The District Clerk shall prepare and forward a supplemental clerk's record containing the trial court's findings and orders on or before April 30, 2014. The court reporter transcribing the hearing shall prepare, certify, and file the transcript of the hearing with this Court on or before April 30, 2014.
IT IS SO ORDERED this 27th day of February, 2014.
PER CURIAM
Before McClure, C.J., Rodriguez, J., and Larsen, J. (Senior Judge)
Larsen, J. (Senior Judge)(Sitting by Assignment)