Opinion
05-21-00945-CR
05-09-2022
RODERICK WAYNE NELSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F19-24910-I
ORDER
ERIN A. NOWELL JUSTICE.
Before the Court is appellant's May 4, 2022 motion to supplement the clerk's record with the July 22, 2021 notice of intent to enhance punishment with one prior conviction. In the motion, appellant states the notice is necessary so this Court may read and evaluate the record for potential error. Although the appellate record has references to the State's notice, the notice itself does not appear in the clerk's or reporter's records filed with the Court or on OnBase.
We ORDER the trial court to hold a hearing, WITHIN FIFTEEN DAYS of the date of this order, to determine whether the State's July 22, 2021 notice of enhancement alleging a prior conviction exists and can be filed in a supplemental clerk's record or whether the document has been lost or destroyed. If the trial court determines the document exists, the trial court shall order a copy of the document be filed in a supplemental clerk's record.
If the trial court determines that the document has been lost or destroyed, the trial court shall determine whether the document can be reconstructed and replaced by agreement or by written stipulation of the parties. If the parties cannot agree or stipulate, the trial court is directed to determine what constitutes an accurate copy of the document and order that copy be included in a supplemental clerk's record. See Tex. R. App. P. 34.5(e).
We ORDER the Dallas County District Clerk to transmit to this Court, WITHIN THIRTY DAYS of the date of this order, a supplemental clerk's record containing the written findings of fact made by the trial court, if any, and the copy of the July 22, 2021 State's notice of intent to enhance punishment with one prior conviction. A new deadline for the filing of the State's brief will be established upon reinstatement of the appeal.
We DIRECT the Clerk to send copies of this order to the Honorable Nancy Kennedy, Presiding Judge, Criminal District Court No. 2; to Dallas County District Clerk Felicia Pitre; and to counsel for all parties.
We ABATE the appeal to allow the trial court to comply with this order. The appeal shall be reinstated when the findings are received or at such other time as the Court deems appropriate.