Opinion
06-20-00064-CR
07-21-2020
CECIL ALLAN MOORE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 7th District Court Smith County, Texas
Trial Court No. 007-1294-14 Before Morriss, C.J., Burgess and Stevens, JJ. ORDER
Cecil Allan Moore has appealed from the trial court's order of final adjudication of guilt for the offense of indecency with a child by sexual contact and the resulting fifteen-year sentence. The clerk's record was filed April 15, 2020. The reporter's record was originally due May 5, 2020, and was most recently due July 15, 2020.
Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
Pending before this Court is court reporter Jennifer Lowrance's motion for an extension of time in which to file the record. Lowrance's motion is based on her stated inability to file the record because she has not received a written request for the reporter's record from appellant's counsel designating which portions of the proceedings are to be included, as required by Rule 34.6(b)(1) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 34.6(b)(1). Lowrance states that she e-mailed counsel for the appellant on June 18, 2020, advising him that no such designation had been received and that no payment arrangements had been made for the master and exhibit indices, to which she did not receive a response. Lowrance explained that two other court reporters have worked on this case and that, without a proper designation, she cannot provide this information to the other reporters who may be required to prepare records in the case.
In response to inquiry by this Court regarding a request for designation of the record, appellant's counsel indicated, "Several designations of the record have been requested and filed" on May 12, 2020, and on June 30, 2020. Appellant's counsel further indicated that he paid (1) Lowrance $443.75 on March 19, 2020, by check number 8760, (2) reporter Christy Humphries $534.00 on May 20, 2020, by check number 8801, and (3) reporter Tina Campbell $156.00 on June 30, 2020, by check number 8823. Appellant's counsel has further indicated that "it is being contemplated whether to seek an order from the Court with regard to supplementing the clerk's record," as he has requested supplementation and that evidently has not been done.
It is apparent that there has been a lack of clear communication between appellant's counsel and Lowrance regarding the record requests and proper payment arrangements for the master and the exhibit indices. We believe that abatement to the trial court to determine the current status of the appellant's record request and to determine what, if anything, is further required of appellant is the most expeditious manner of clarifying that communication. Because appellant has indicated that he is contemplating filing a motion to require supplementation of the clerk's record, which could entail additional delay and possible abatement, this abatement is intended to resolve all issues pertaining to appellant's request to supplement the clerk's record as well.
We hereby abate this matter to the trial court to conduct a hearing to determine (1) whether appellant has properly complied with Rule 34.6(b)(1) of the Texas Rules of Appellate Procedure and, if not, (2) what action is required for compliance with that rule. See TEX. R. APP. P. 34.6(b)(1). At the hearing, the trial court shall also determine whether appellant has paid for all portions of the record he is requesting in this appeal. Finally, the court shall determine if appellant properly requested and paid for a supplemental clerk's record.
We instruct the trial court to conduct the hearing within twenty days of the date of this order and to enter findings regarding the inquires listed in the preceding paragraph. We also request that the trial court make any additional findings that it believes will be helpful to this Court in fully and finally resolving all issues related to the record in this matter.
The trial court's findings, as set forth above, shall be entered into the record of the case and filed with this Court as a supplemental clerk's record within ten days of the date of the hearing. The reporter's record of the hearing shall likewise be filed within ten days of the date of the hearing.
All appellate timetables are stayed and will resume on our receipt of the supplemental clerk's record and reporter's hearing record.
In light of this order, we grant Lowrance's request for an extension of time in which to file the record. If necessary, we will schedule a new deadline in which to file the reporter's record following our receipt of the supplemental clerk's record of the trial court's findings and the most recent hearing record.
IT IS SO ORDERED.
BY THE COURT Date: July 21, 2020