Opinion
No. 05-15-01299-CR
06-23-2016
JEREMY LEONARD MAYS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F06-71504-H
ORDER
We REINSTATE this appeal.
On the joint motion of the parties, we abated this appeal for findings regarding the record, specifically whether certain exhibits were missing, whether appellant was at fault for the loss or destruction of any notes or exhibits, and whether the parties could agree on substituted exhibits. We ADOPT the trial court's June 13, 2016 findings that:
• The proceedings in this case took place October 30, 2007 through November 2, 2007. Kathleen Keese, a substitute court reporter, was the court reporter for the proceedings on October 30, 2007. Vearneas Faggett recorded and transcribed the proceedings from October 31, 2007, November 1, 2007, and November 2, 2007. Keese has been directed by the trial court to prepare the transcript from the October 30, 2007 proceedings and provide the transcript to Faggett for inclusion in the reporter's record.
• Karen Coston of the Dallas County Felony Evidence Registrar, testified that all but three of the original exhibits admitted into evidence in the case have been destroyed. Coston did not determine whether any post-conviction writs were pending prior to the destruction of the records and concedes that if she had, she would have noticed the post-conviction writ pending and the evidence would not have been destroyed. The three exhibits still in existence are State's Exhibits 11-A, 25-A, and 54. They have been delivered to the court reporter.
• Appellant agreed to the following exhibits and substituted exhibits: State's Exhibits 11, 11-A, 22, 22-A, 22-B, 25, 25-A, and 54.
• Over appellant's objections raised at the hearing, the trial court determined with reasonable certainty that the following substituted exhibits located by the State and presented to appellant and the trial court during the hearing accurately duplicated the original exhibits: State's Exhibits 1, 2, 3, 4, 5, 5-A, 6, 13, 14, 15, 16, 18, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, and 41. These exhibits should be included in the record as substitutes for the original exhibits admitted at trial.
• The following exhibits have been destroyed and the parties have been unable to locate substitute exhibits: State's Exhibits 7, 7-A, 7-B, 8, 9, 10, 12, 21, 23, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53 and Defense Exhibit 1.
• There was no State's Exhibit 19 or 20, and the State did not offer the State's Exhibit 42 during trial.
• The trial court could not determine which photograph submitted by the State for the trial court's consideration as a substitute for State's Exhibit 17 constituted an adequate substitute for the original exhibit. Therefore, State's Exhibit 17 was not admitted.
• Appellant is not responsible for the destruction of the exhibits.
On June 20, 2016, volume 3 from the October 31, 2007 trial on the merits and volume 4 from November 1, 2007 punishment phase were filed along with the reporter's record from the May 2016 hearings and the original and substituted exhibits detailed above. TO DATE, THE COURT DOES NOT HAVE THE REPORTER'S RECORD FROM THE OCTOBER 30, 2007 OR NOVEMBER 2, 2007 PROCEEDINGS.
Substitute court reporter Kathleen Keese is ORDERED to file, within TWENTY DAYS of the date of this order, the reporter's record of the trial court proceedings in this case from October 30, 2007. Court reporter Vearneas Faggett is ORDERED to file, within TWENTY DAYS of the date of this order, the reporter's record of the trial court proceedings in this case from November 2, 2007.
This appeal cannot proceed until all volumes of the reporter's record are filed. We expressly caution Vearneas Faggett, the official court reporter of the Criminal District Court No. 7, that if the Court does not receive the missing two volumes of the reporter's record within time proscribed, the Court will take whatever action it deems appropriate, including ordering Vearneas Faggett, the official court reporter of the Criminal District Court No. 7, to not sit until the missing two volumes of the reporter's record are filed.
We DIRECT the Clerk to send copies of this order to the Honorable Robert Burns, Presiding Judge, Criminal District Court; Vearneas Faggett, official court reporter, Criminal District Court No. 7; Kathleen Keese, substitute court reporter, and to counsel for all parties.
/s/ ADA BROWN
JUSTICE