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Kirkpatrick v. State

Court of Appeals of Texas, First District, Houston
Sep 28, 2021
No. 01-20-00141-CR (Tex. App. Sep. 28, 2021)

Opinion

01-20-00141-CR

09-28-2021

Travis Eugene Kirkpatrick v. The State of Texas


Trial court: 207th District Court of Comal County Trial court case number: CR2018-430

ABATEMENT ORDER

AMPARO GUERRA JUDGE

In conducting our review of the record and arguments on appeal in this case, we discovered that we were unable to open and view an exhibit (State's Exhibit 1) presented to and relied on by the trial court in rendering its decision and relied on by the parties in their briefing in this appeal. The Clerk of this Court requested that the Comal County District Clerk's Office provide the original DVD of State's Exhibit 1, but was told that the district clerk was unable to open and view the original DVD exhibit. The district clerk contacted both the State and counsel for appellant, but was informed that neither party had a viewable copy of State's Exhibit 1.

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 or destroyed:

(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;
(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 appeal is abated and the case remanded to the trial court. See Tex. R. App. P. 34.6(e)(2) (providing for trial court to settle dispute about accuracy of appellate record after notice and hearing). The trial court is directed to conduct a hearing within thirty (30) days of the date of this order to:
1) determine whether appellant timely requested a reporter's record;
2) determine whether, without appellant's fault, any exhibits, including State's Exhibit 1, are lost or destroyed;
3) determine whether any lost or destroyed exhibit is necessary to the appeal's resolution;
4) determine whether the parties can replace any lost or destroyed exhibits by agreement;
5) if any lost or destroyed exhibits cannot be replaced by agreement of the parties, determine whether those exhibits can be replaced with copies determined by the trial court to accurately duplicate with reasonable certainty the original exhibits;
6) make any other findings and recommendations the trial court deems appropriate; and
7) issue written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.

The district clerk is directed to file a supplemental clerk's record containing the trial court's order and findings with the Clerk of this Court within 45 days of the date of this order. The court reporter is directed to file a reporter's record of the hearing within 45 days of the date of this order. If any of the exhibits are able to be located or have been lost or destroyed but can be replaced, the court reporter shall file a supplemental exhibit volume to the reporter's record containing the located or replaced exhibits no later than 45 days from the date of this order.

It is so ORDERED.


Summaries of

Kirkpatrick v. State

Court of Appeals of Texas, First District, Houston
Sep 28, 2021
No. 01-20-00141-CR (Tex. App. Sep. 28, 2021)
Case details for

Kirkpatrick v. State

Case Details

Full title:Travis Eugene Kirkpatrick v. The State of Texas

Court:Court of Appeals of Texas, First District, Houston

Date published: Sep 28, 2021

Citations

No. 01-20-00141-CR (Tex. App. Sep. 28, 2021)