Opinion
10-20-00092-CR
04-12-2022
ROBERT NOEL RAY, Appellant v. THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas Trial Court No. 18-00356-CRF-85
Before Chief Justice Gray, Justice Johnson, and Justice Smith
ABATEMENT ORDER
PER CURIAM
The development of this appeal has been substantially delayed by the Court's inability to view a video exhibit. Appellant offered, for the purposes of the appellate record only, a video recording, Defense Record 1, in a proprietary format that is not viewable by this Court using industry standard readily available software.
Notwithstanding requests by the Court to provide the Court with a viewable exhibit, the Court has been unable to obtain this exhibit in a format viewable on the Court's computer system. The Office of Court Administration (OCA) is the intellectual technology service provider for the appellate courts. In that capacity, OCA controls the software that can be loaded onto this Court's computer system to use to view this, or any other type, exhibit. If an exhibit cannot be viewed by use of the Court's system, the Court is not at liberty to download a program that may allow the Court to view the exhibit.
It is the joint responsibility of this Court and the trial court to ensure the timely filing of the record on appeal. Tex.R.App.P. 35.3(c). Accordingly this appeal is ABATED to the trial court to determine, within 21 days from the date of this ORDER, whether there is a manner in which the video exhibit, Defense Record 1, can be made a part of the appellate record, in a format that can be viewed by this Court for purposes of the appeal. The viewable video ultimately provided to the Court must be certified by the court reporter as the exhibit offered as part of the official record for this appeal.
If the trial court determines the exhibit cannot be made a part of the record as required, the trial court shall make written findings of fact and conclusions of law, including whether the exhibit must be considered "lost or destroyed" for the purposes of Texas Rule of Appellate Procedure 34.6 due to the inability of this Court to view the exhibit as part of the record of this appeal.
The trial court clerk is ORDERED to prepare and file a supplemental clerk's record containing the written findings and orders of the trial court, if any, in this Court within 14 days from the date of the hearing, if any.
Further, the trial court's official reporter is ORDERED to prepare and file with the Clerk of this Court a record of any hearing held regarding this abatement order within 14 days from the date of the hearing, if any.
Appeal abated