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Martinez v. State

Court of Appeals Fifth District of Texas at Dallas
Aug 25, 2017
No. 05-17-00817-CR (Tex. App. Aug. 25, 2017)

Opinion

No. 05-17-00817-CR

08-25-2017

ALBERT R. MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the Criminal District Court No. 1 Tarrant County, Texas
Trial Court Cause No. 1454860D

ORDER

On August 21, 2017, we ordered court reporter Andrea Reed to file a supplemental reporter's record containing copies of State's exhibits 5 through 13 (or in the event copies could not be made, the original exhibits) along with DVD copies of exhibits 2 and 4, with the court reporter certification regarding these two exhibits attached to the copies. On August 22, 2017, Ms. Reed responded by letter, informing the Court that (1) the State's photograph exhibits 5 through 13 are too big to be copied to be scanned, (2) the State's Exhibit 2 will not play any content and is unable to be copied, and (3) the State's "Exhibit 4 is not in a file format acceptable by TAMES and is unable to be converted or copied." She further noted that the original exhibits have been filed with the Tarrant County felony clerk and are "no longer in [her] custody."

The Texas Rules of Appellate Procedure provide that the "official or deputy court reporter is responsible for preparing, certifying, and timely filing the reporter's record." TEX. R. APP. P. 35.3(b). The rules also provide that the trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed. TEX. R. APP. P. 35.3(c). Thus, it is court reporter Andrea Reed's responsibility to ensure that the reporter's record is completely and correctly filed with this Court.

Therefore, we ORDER court reporter Andrea Reed to file, within TWENTY DAYS, of the date of this order, a supplemental reporter's record containing the original State's exhibits 5 through 13. Should Ms. Reed fail to comply with this order, the Court will utilize whatever remedies it has available to ensure the supplemental reporter's record is filed, including ordering Ms. Reed not sit until she files the supplemental reporter's record or ordering Ms. Reed to appear and show cause why she should not be held in contempt.

With respect to the State's Exhibits 2 and 4 which appear to be DVDs that cannot be played, we ORDER the trial court to hold a hearing and to make findings of fact regarding the following:

¦ Whether appellant timely requested a reporter's record;

¦ Whether, without appellant's fault, the State's Exhibits 2 and 4 have been lost or destroyed;

¦ If the State's Exhibits 2 and 4 are lost or destroyed, whether they are necessary to the appeal's resolution; and

¦ If the State's Exhibits 2 and 4 are lost or destroyed, whether the lost or destroyed exhibits can be replaced by agreement of the parties or be replaced by copies determined by the trial court to accurately duplicate with reasonable certainty the original exhibits.

We ORDER the trial court to transmit a record containing its written findings of fact, any orders, and any supporting documentation to this Court within THIRTY DAYS of the date of this order.

We DIRECT the Clerk to send copies of this order to the Honorable Elizabeth Beach, Presiding Judge, Criminal District Court No. 1; Andrea L. Reed, Official Court Reporter, Criminal District Court No. 1; Paul Francis; and the Tarrant County District Attorney's Office.

We ABATE this appeal to allow the trial court to comply with this order. The appeal shall be reinstated in thirty days or when we receive the supplemental record containing its findings of fact, whichever occurs first.

/s/ CAROLYN WRIGHT

CHIEF JUSTICE


Summaries of

Martinez v. State

Court of Appeals Fifth District of Texas at Dallas
Aug 25, 2017
No. 05-17-00817-CR (Tex. App. Aug. 25, 2017)
Case details for

Martinez v. State

Case Details

Full title:ALBERT R. MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Aug 25, 2017

Citations

No. 05-17-00817-CR (Tex. App. Aug. 25, 2017)