Opinion
05-23-01244-CR
09-03-2024
EBBY DEWAYNE WADE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 073026
ORDER
ROBERT D. BURNS, III CHIEF JUSTICE
Before the Court is appellant's July 2, 2024 Motion to Amend, Correct and Supplement the Appellate Record, supplemented by documents appellant filed April 19, 2024, April 22, 2024, May 3, 2024, and May 9, 2024. The clerk's record consists of four volumes, and the reporter's record consists of twenty-four volumes. The Court has reviewed and considered all of appellant's objections to the clerk's record and reporter's record, whether or not expressly discussed in this order. The Court makes the following rulings on those objections.
CLERK'S RECORD
Appellant objects that the clerk's record is incomplete because it is missing documents. We ORDER the trial court to make findings about the clerk's record as follows:
• Whether appellant's attorney, Joe Neal Smith, filed a motion for funds for an investigator on or before August 8, 2023. If the trial court finds the motion was filed with the district clerk, the trial court shall find whether the motion was included in the clerk's record; if the motion was not included in the clerk's record, the trial court shall find whether the district clerk has possession of the motion. If the district clerk does not have possession of the motion, the trial court shall find whether the motion has been lost or destroyed. If the motion has been lost or destroyed, the trial court shall find whether the parties stipulate to a copy of the motion; and if the parties will not stipulate, then the trial court shall determine what constitutes an accurate copy of the motion and order it included in a supplemental clerk's record.
• Whether the document styled Statement of Facts, filed September 23, 2022, at volume 2, pages 600 to 603, included attachments A1, A2, and A3; if it did include the attachments, the trial court shall find whether the district clerk has possession of the attachments; if the district clerk does have possession of the attachments, the trial court shall order them included in a supplemental clerk's record. If the district clerk does not have possession of the clerk's record, the trial court shall find whether the attachments have been lost or destroyed. If attachments have been lost or destroyed, the trial court shall find whether the parties stipulate to a copy of the document; and if the parties will not stipulate, then the trial court shall determine what constitutes an accurate copy of the document and order it included in a supplemental clerk's record.
• Whether appellant filed with the district clerk a notarized copy of Statement of Facts at volume 2, page 746 to 750. The copy in the clerk's record is not notarized and states, "Notarized copy filed with the Clerk's Office." If the trial court finds appellant filed a notarized copy with the district clerk, the trial court shall find whether the
district clerk has possession of the notarized copy. If the trial court finds the clerk does not have possession of the notarized copy, the trial court shall find whether the notarized copy has been lost or destroyed. If the trial court finds the notarized copy of the document filed with the clerk has been lost or destroyed, the trial court shall find whether the parties stipulate to a notarized copy of the document; and the parties will not stipulate, the trial court shall determine what constitutes an accurate copy of the notarized document and order it included in a supplemental clerk's record.
• Whether appellant filed with the district clerk a copy of Motion to Dismiss for Constitutional Violations at volume 3, pages 1634 to 1666 of the clerk's record that is signed by appellant. If appellant filed a signed copy of the motion, the trial court shall find whether the district clerk has possession of the signed motion. If the district clerk does not have possession of the signed motion, the trial court shall find whether the signed motion that was filed has been lost or destroyed. If the signed copy of the motion filed with the district clerk has been lost or destroyed, the trial court shall find whether the parties stipulate to a copy of the signed motion; and if the parties will not stipulate, then the trial court shall determine what constitutes an accurate copy of the signed motion filed with the district clerk and shall order it included in a supplemental clerk's record.
• Whether the document at volume 4 page 1823 of the clerk's record titled in the index "Motion to Compel the Production / Compliance of Subpoena and Discovery Drive" is complete or whether there are additional pages filed with the district clerk that are not included in the clerk's record. Page 1823 of the clerk's record is a page appellant labeled "Page 1/2" and appears to end in the middle of a sentence, but it is not followed by page 2 of the document. If the trial court finds additional pages are filed with the district clerk, the trial court shall find whether the district clerk has possession of the additional pages. If the trial court finds the district clerk does not have possession of the additional pages, the trial court shall find whether the additional pages filed with the district clerk have been lost or destroyed. If the trial court finds additional pages filed with the district clerk have been lost or destroyed, the trial court shall find whether the parties stipulate to a copy of the additional pages. If the parties will not stipulate, then the trial court shall determine what constitutes an accurate copy of the
complete motion filed with the district clerk and shall order it included in a supplemental clerk's record.
All other objections to the clerk's record are overruled. Objections not specifically mentioned in this order have been considered and are overruled.
REPORTER'S RECORD
Appellant objects that the reporter's record has been edited throughout because of the punctuation mark "- -". The Court is aware the convention is to use "- -" after a statement to indicate the speaker did not finish the sentence, to indicate a pause in the speech, or to indicate that the speaker was interrupted. The punctuation does not indicate that material is omitted. Except as otherwise noted in this order, those objections are overruled.
Appellant's general objections that material is omitted from the reporter's record or that the reporter's record has been edited or altered or that material has been omitted or added without providing page and line references where the material is edited, altered, added, or omitted and without providing the material omitted from the reporter's record or explaining how the reporter's record is inaccurate are overruled.
Appellant objects that proceedings placed under seal have not been produced. Appellant does not identify any proceedings under seal that are not part of the record on appeal. Those objections are overruled.
To the extent appellant complains that evidence was not turned over to him during discovery and/or that there are Brady violations, those objections are overruled as related to these motions because they do not concern whether the record is accurate and complete.
To the extent appellant objects that portions of the reporter's record do not comply with Rule of Appellate Procedure 13.2, "Additional Duties of Court Recorders," that rule does not apply in this case because there was not a court recorder. The objections are overruled.
Appellant objects that reporter's records of hearings on certain dates are omitted from the record. We ORDER the trial court to make findings whether there were hearings on April 15, 2021, July 14, 2021, November 17, 2021, February 9, 2022, April 28, 2022, April 13, 2022, June 28, 2022, July 15, 2022, November 14, 2022, April 26, 2023, June 6, 2023, August 17, 2023, August 25, 2023, August 30, 2023, September 8, 2023, September 12, 2023, and September 22, 2023. Appellant also objects that there were post-trial hearings that are not included in the reporter's record, including November 16, 2023. We ORDER the trial court to find whether any hearings were held after November 8, 2023. The trial court shall also find whether any hearings on the above dates or after November 8, 2023, were reported, and if so, the identity of the court reporter for each hearing. The trial court shall order the court reporter for any of those hearings to file with this Court and to send to appellant the reporter's record of the hearings.
Concerning volume 2, appellant objects that there was an exhibit 2 presented at the hearing that was the report of a fraud investigation. We ORDER the trial court to find whether an exhibit 2 or other report of a fraud investigation was presented at the hearing and whether it was offered or admitted into evidence. If the exhibit was offered or admitted into evidence, the trial court shall find whether the exhibit is included in the reporter's record. If the exhibit is not included in the reporter's record, the trial court shall find whether the court reporter has possession of the exhibit or whether the exhibit is lost or destroyed. If the exhibit is lost or destroyed, the trial court shall find whether the exhibit can be replaced by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit. If the trial court finds that the exhibit cannot be replaced, the trial court shall find whether appellant was at fault for the loss or destruction of the exhibit and whether the exhibit is necessary to the appeal's resolution.
Also in volume 2, pages 17 to 21, appellant objects that the record does not accurately include statements by the prosecutor that the State would not be ready for trial by the then-scheduled trial date of May 9, 2022. We ORDER the trial court to find whether the reporter's record accurately reproduces the prosecutor's statements about readiness for trial. If the trial court finds material was omitted, the trial court shall make a finding of the substance of the omitted material.
All other objections to volume 2 are overruled.
Appellant's objections to volumes 3 and 4 are overruled.
Concerning volume 5, appellant objects that page 6, line 9, "And per Article 28.10", should be "And per Article 28.01". We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statement. All other objections to volume 5 are overruled.
All objections to volume 6 are overruled.
Concerning volume 7, appellant objects that page 5, lines 11 to 12, "Subsection (1)" should be "Subsection (f)". We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statement. All other objections to volume 7 are overruled.
All objections to volume 8 are overruled.
Appellant objects that volume 9, pages 6 to 8, and/or volume 10 pages 6 to 8, as he states, "omits the State and Court's statements on how Facebook's Meta change will take at least a couple of months." We ORDER the trial court to find whether those pages are accurate or whether material is omitted from the reporter's record and the substance of any missing material. All other objections to volume 9 is overruled.
Also concerning volume 10, appellant objects that the recording that was the subject of the motion to suppress and motion to recuse the Grayson County District Attorney's Office, and which the trial court considered in camera, was not included in the appellate record. We ORDER the trial court to find whether the recording was offered or admitted. If the trial court finds that the recording was offered or admitted, the court reporter shall file the recording with this Court as part of the reporter's record. If the trial court finds that the recording was offered or admitted and that the recording has been lost or destroyed, then the trial court shall find whether appellant is at fault for the loss or destruction of the recording, whether the recording is necessary to the appeal's resolution, and whether the recording can be replaced by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original recording.
All other objections to volume 10 are overruled.
Concerning volume 11, appellant objects that pages 9, 10, and 19 omit the trial court's denial of appellant's motion for continuance and motion for speedy trial. We ORDER the trial court to find whether there is missing from pages 9, 10, and 19 discussion of appellant's motions for speedy trial and continuance. If the trial court so finds, the trial court shall also find the substance of any missing material. All other objections to volume 11 are overruled.
All objections to volume 12 are overruled.
Concerning volume 13, appellant objects:
page 4, line 11, "video of the execution", should be "videos of the execution".
page 4, line 12, "Nintendo Wii or the Buccal swabs", should be "Nintendo Wii and the Buccal swabs".
page 6, line 17, "Hess that showed the video (sic) being backed in and the", appellant objects that he stated "vehicle" instead of "video".
page 6, line 20, "Document 29.5, 29.6, 29.8, 29.9", appellant asserts the numbers "should all read as 00#### like 001295 there are no points in the State's document numbers."
page 7, lines 20 to 21, "MR. WADE: The video has been edited, so it does not show - -", should be "MR. WADE: The video has been edited so it does not show the car being backed in the parking spot or a male exiting the vehicle".
page 8, lines 8 to 9, "MR. WADE: So (inaudible). So Texas Ranger Brad Oliver", appellant objects that his statement was not inaudible but was "a loud, audible reading of the report from Texas Ranger Brad Oliver's report (DPS) stating an edited version that has been omitted."
page 8, lines 15 to 17, "backed into a parking spot. Suspect and - - the same suspect as seen in the security footage exiting the vehicle", should be "backed into a parking spot. Suspect and male in parking lot is the same suspect as seen in the security footage exiting the vehicle".
page 13, lines 12 to 13, "MR. WADE: Shiann Postell's video interview or - -", should be "MR. WADE: Shiann Postell's video interview or recording".
page 13, line 20, "pictures of the - - like", should be "pictures of the skull fragments like".
page 17, lines 8 to 9, "MR. WADE: But, no, she have all of that from - -", should be "MR. WADE: But there's no way she'll have all that from 2020. How is she supposed to get that or be expected to have all that".
page 17, line 14, "All of these videos - -", should be "All of these videos are edited".
page 18, line 23, "are chopped - -", should be "are chopped and missing parts of the video". We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements. All other objections to volume 13 are overruled.
Concerning volume 14, appellant objects:
page 9, lines 5 to 6, "UNKNOWN SPEAKER: I don't even want her looking at him", should be "UNKNOWN SPEAKER: I don't even want him looking at her".
page 9, line 7, "THE COURT: She doesn't have to", should be "THE COURT: She'll be fine. She's safe". We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements. All other objections to volume 14 are overruled.
Concerning volume 15, appellant objects:
page 4, lines 1 and 2, "I got one today, but, you know, by the time I - - you know, we are here now, so", should be "I got one today, but, you know, by the time I get an envelope we have the hearing, you know, we are here now, so I can't send it out and get here in time".
page 10, line 15, "because it's the second time - -", should be "because it's the second time you guys made me sign something saying you've added to the discovery then when I'm finally able to use the computer, it's not there".
We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements. All other objections to volume 15 are overruled.
Concerning volume 16, appellant objects:
page 14, line 10, "Kevin, would you go find - -", should be "Kevin, would you go find a copy of the reset sheet for today's Court proceeding".
page 14, lines 14 to 17, "having the pretrial at 9:00 today. The record will reflect -- and I'm going to make a copy of the record, a reset sheet that the Court prepared for Mr. Wade's benefit, that said this pretrial was happening at 9:00", were added.
page 15, line 18, "There were two - -", should be "There were two phones". Appellant also objects that the "- -" on page 15, line 18 is where appellant recited the numbers of two search warrants.
page 17, line 12, "That's what he just said," should be, "That's what you just said".
page 19, line 6, "dated - -", the "- -" should be the dates.
page 19, line 8, "those - -", should be "those search warrants".
page 19, line 18, "Monday morning. The first one is - - yeah, it was her", should be "Monday morning. The first one is SW-872524-1 yeah it was her".
page 19, line 23, "I'll use the four corners doctrine", was added.
page 21, line 22, "I had a jacket", should be "I had my jacket on and they asked to take it off and searched for marks and scratches".
page 22, line 12, "that was, Amber Parish's dad's, or whoever, mom, it", appellant objects that the prosecutor did not say "Amber Parish's dad".
page 22, line 25 to page 23 line 1, "they did ask me to follow them, and he then asked - - requested to make sure that I got there", should be "they did ask me to follow them, and he then asked Officer Wester to follow behind me and requested to make sure I got there".
page 23, lines 5 to 6, "way. And then at one point when I asked, Can I leave? I did not feel like I could leave", should be "way. And then at one point I even asked Can I leave? I did not fee I could leave".
page 23, line 14, "MR. WADE: I did leave a few minutes - -", should be "MR. WADE: I did leave a few minutes later and Officer Cheairs followed me trying to stop me from leaving". In another objection, appellant states those lines should be "MR. WADE: I did leave a few minutes later but Officer Cheairs followed me trying to get me to stay and make me feel bad for leaving. Then Rodriguez came and tricked me out of my phone after I terminated the interview".
page 23, line 20, "So the phone they got out of me", should be, "So the phone they got out of me illegally".
page 25, lines 7 and 8, "MR. B. SMITH: You want the two warrants for his phone, missing and murder?", were added.
page 25, line 25, "camera while I was talking to - -", should be "I was talking to Officer Rodriguez, he was opening closets, looking under the bed and at the carpet".
page 26, line 19, "MR. WADE: Your Honor, they - -", should be "MR. WADE: Your Honor, they took my DNA without having anything to compare it to".
page 39, line 19, "the State's Motion to Subpoena", should be "the State's Motion to Quash the Defendant's Subpoena".
We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements. If the trial court finds that the reporter's record is inaccurate, the trial court shall find the substance of the statements.
In volume 16, page 14, lines 5 to 8, the trial court observed that Mr. J. Smith, appellant's standby counsel, was not present. In volume 16, on pages 15, 20, and 23, the reporter's record shows "MR. J. SMITH" speaking. We ORDER the trial court to find whether "MR. J. SMITH" is the speaker where indicated in volume 16; if the trial court finds Mr. J. Smith was not the speaker, then the trial court shall find who was the speaker.
Also in volume 16, page 23, line 18, the reporter's record states appellant was "(inaudible)." Appellant objects that he was speaking loudly and not inaudibly. We ORDER the trial court to find whether appellant spoke audibly and comprehensibly, and if so, the substance of appellant's speech, if any, that is omitted from volume 16, page 23.
All other objections to volume 16 are overruled.
In volume 17 of the reporter's record, Appellant asserts there were proceedings at that hearing before the reporter's record begins. We ORDER the trial court to find whether there were proceedings at that hearing before the proceedings reported in volume 17, whether those proceedings not included in volume 17 were reported, and the identity of the court reporter for any reported proceedings on October 16, 2023, that were not included in volume 17.
Appellant also objects that other material was omitted from volume 17. On pages 107 to 108, a prospective juror is being questioned about whether he would not consider the fact appellant was representing himself as evidence of appellant's guilt or innocence. The prospective juror said he did not know. The trial court thanked him, and the reporter's record states the prospective juror then left the courtroom. Appellant asserts the attorneys and the trial court continued to question the prospective juror for several more minutes on this subject but that the questioning and the prospective juror's answers are not included in the reporter's record. Appellant also objects that on page 120 of volume 17, the trial court gave the parties additional instructions concerning the jury strikes that are not included in the reporter's record. We ORDER the trial court to find whether there was additional questioning of the prospective juror that was not included in the reporter's record on page 108 or additional instructions omitted on page 120. If the trial court finds there was additional questioning or instructions, then the trial court shall find whether the matter was taken down by the court reporter.
Appellant also presents the following objections to volume 17:
page 5, line 23 to page 6 line 2, "Okay. Just for the record, while we are in here and while Paula has got it pulled up on the record, the Court has read the warrants - - went back and read the warrants. That was an outstanding issue last week. I'm going to deny the Motion to Suppress", was added.
page 7, line 15, "MR. WADE: Is this the - -", should be "MR. WADE: Is this the list of State's witnesses?"
page 14, line 18, appellant objects that the record does not show the State offered and the trial court admitted the discovery acknowledgement as an exhibit.
page 15, line 3, "MR. WADE: Yes", should be "MR. WADE: This is too small. I can't even read it".
page 16, line 4, "far as a record, I would like to enter in - -", should be "far as a record, I would like to enter into evidence".
page 19, lines 23 to 25, "MR. WADE: I have no - - these are surprise witnesses that - - that I have no information on, why - - what relevance they have to the case", should be "MR. WADE: I have no notice, these are surprise witnesses that I have no information on, why or what relevance they have to the case".
page 31, lines 11 to 12, "case. Seated over here beside him, this is Tim Brown, and Joe Neal Smith", should be "case. Seated over by the wall is Tim Brown and Joe Neal Smith".
page 55, lines 7 to 8, "THE PROSPECTIVE JUROR: Prove anything beyond all doubt?", should be "THE PROSPECTIVE JUROR: You can prove anything beyond all doubt?".
page 75, line 12, "THE PROSPECTIVE JUROR: Yes", should be "THE PROSPECTIVE JUROR: No", and the prospective juror stated she could not be fair to the State.
page 86, line 23, "MR. B. SMITH: I agree with - -", the "- -" should be the prospective juror's name.
page 94, lines 9 to 12, "THE PROSPECTIVE JUROR: My father-in-law is an FBI agent. I know he has to do all of these cases, but I have a hard time when someone is - - like, in that case, believing that they are innocent", should be "THE PROSPECTIVE JUROR: My father is an FBI agent. I know he has to do all these cases, but I have a hard time when someone is, like in this case, saying they are innocent".
page 96, line 21, "MR. WADE: Yes", should be "MR. WADE: Yes. Because both the defendant and the victim are part of the LGBTQ community".
page 97, line 25, "enforcement was not lying", should be "enforcement that were lying" or "enforcement was not truthful and was lying".
page 99, line 10, "not guilty, that that's reasonable doubt", should be "not guilty, is that reasonable doubt".
page 113, line 10, "Here is what I have got, Joe Neal", the trial court did not say "Joe Neal".
page 117, lines 12 to 13, "MR. WADE: He knows Rudy Hernandez, and followed by FBI, says he has a bias", should be "MR. WADE: He knows Rudy Hernandez, and his father's FBI and he said he has a bias".
page 118, line 9, "MR. WADE: 57", should be "MR. WADE: 37".
page 124, lines 17 to 25, and page 125, lines 1 to 3 have been added.
page 130, lines 8 to 9, "MR. WADE: Yes. May I object to the Indictment outside the presence of the jury", should be "MR. WADE: Yes. I would like to object to the Indictment".
page 160, line 17, "thousands - - if not thousands of exhibits", should be "hundreds - - if not thousands of exhibits".
page 190, appellant objects that there was a question and answer between lines 4 and 5 that is omitted.
page 191, lines 16 to 19, "Q. Notice here the vehicle. How is the vehicle parked? A. The vehicle we found had been backed in, which seemed kind of odd. It normally doesn't happen", were added.
We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements.
Appellant also objects that in volume 17, line 15 on page 46 is missing from his copy of the reporter's record. That line is Mr. B. Smith stating, "Go back, please."
Also concerning volumes 17 and 18 (October 16 and 17, 2023), appellant asserts that Mr. Timothy Brown and Mr. Joe Neal Smith were not seated at counsel table and did not speak on appellant's behalf during those hearings; appellant objects, asserting some of the statements attributed to Mr. Brown and Mr. Joe Neal Smith them are inaccurate. See volume 17 page 9, line 17; page 21, line 11; page 28, line 8; page 123, line 15; and page 124, line 3. See volume 18 page 220, line 13. We ORDER the trial court to make a finding of whether Mr. Brown and Mr. Joe Neal Smith made the statements attributed to them in those places in the reporter's record. If the trial court finds Mr. Brown and Mr. Joe Neal Smith did not make the statements attributed to them, the trial court shall find who made the statements.
Appellant also objects that the State's PowerPoint presentations in the State's voir dire, opening statement, and closing argument were not made part of the record. We ORDER the trial court find whether the PowerPoint presentations were offered or admitted into evidence. If the trial court finds that the PowerPoint presentations were offered or admitted into evidence, the court reporter shall amend the reporter's record to include any PowerPoint presentation offered or admitted into evidence.
All other objections to volume 17 are overruled.
In volume 18 of the reporter's record, appellant objects there were proceedings at that hearing before the reporter's record begins, including appellant stating he wanted to be able to access documents on his computer so he could use them in examining witnesses. We ORDER the trial court to find whether there were proceedings at that hearing before the proceedings reported in volume 18, whether those proceedings not included in volume 18 were reported, and the identity of the court reporter for any reported proceedings on October 17, 2023, that were not included in volume 18.
Concerning volume 18, appellant objects:
page 6, line 20, "THE COURT: I just - -", should be "THE COURT: I just want to make sure the State's had a chance to see it".
page 10, line 6, "MR. WADE: No objection", should be an objection of speculation.
page 13, line 4, "Q. Okay. Was it - -", should be "Q. Was it this same walk or limp".
page 13, lines 12 to 14, "A. So when you are stepping, you have a slight - - you are holding your - - waist just a few seconds, a slight limp to it", should be "A. So when you're stepping, you have a slight limp to it".
page 22, line 25, "A. Yes. Over the course of - - on a monthly basis," appellant objects that where the "- -" is, the witness stated a number of years.
page 32, line 16, "it's clear, this is the original un-redacted video that", "original un-redacted" was added.
page 33, line 7, "and the time stamps seemed consistent", was added.
page 33, line 14, "It's 12 seconds", should be "Are you sure it's 12 seconds".
page 36, lines 3 and 5, where the reporter's record says the witness said "Uh-huh," the witness did not give an affirmative answer.
page 36, line 13, "of - - did you know the defendant", the "- -" should be appellant's name.
page 61, lines 6 to 7, "A. I believed him to be in his early thirties. He told us that he was in his early thirties"; appellant states it should be either "A. He told us he was 30" or "A. 32. He told me he was 32".
page 61, lines 23 to 24, "Q. I mean she understood the difference like agape, philos, and eros, right", were added.
page 64, lines 5 to 8, "Q. (By Mr. B. Smith) When Emilia was in Chicago at discernment, what was that? A. Her discernment was a weekend that she went for discernment to join the convent", were added.
page 76, lines 21 and 22, "Q. I didn't tell you - - A. Shut - -", should be "Q. I didn't tell you that, I told Emilia earlier that day. A. Shut up" and other words after "Shut up".
page 95, lines 4 through 13, "MR. B. SMITH: I'll probably offer it as State's A - - I don't know what pretrial numbers we're at, but I'll make it as a record outside the presence of the jury and mark it as A-1. THE COURT: Okay. MR. B. SMITH: And I'll tender that to the Court, not the court reporter. THE COURT: Just give it to me and I'll hang on to it until she tells me where she wants it so it doesn't get mixed up with the jury", were added.
page 99, lines 10 to 11, "And the - - the time of the warrant that was taken", should be "And the crime alleged was a missing person the time of the warrant, when it was taken".
page 104, line 12, "Q. Is State's Exhibit also - -" should include the exhibit number.
page 104, line 20, "Amber Parish, did not have any - -", appellant's objection continued before the trial court interjected on line 21 but was not included.
page 146, lines 22 to 23, "Q. Mr. Hobbs, since it's in Sherman, it's by Fallon Drive, correct", should be "Mr. Hobbs, you testified Fallon Drive is in Sherman, correct".
page 150, lines 4 to 5, "MR. WADE: I raised an issue over the graphic details of - -", omits the objection appellant made to the photographs being sensitive, graphic, and depicting an extraneous offense.
page 158, line 25 to page 159 line 1, The Court: "What's the question to him? A. These are photos the [sic] represented, yes, sir". Appellant objects that there was a question between the trial court's statement and the witness's answer.
page 177, line 19, "Q. Okay. So - -", should be "Q. Okay. So the strainer - -".
page 208, lines 21 to 22, "Q. Is there any reason why the other three are definitive negative that one just says - -", should be "Is there any reason why the other three are definitive negatives, then one says reported in reflux assays".
We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements.
All other objections to volume 18 are overruled.
In volume 19, appellant objects there were proceedings at that hearing before the reporter's record begins concerning the printing of appellant's exhibits. We ORDER the trial court to find whether there were proceedings at that hearing before the proceedings reported in volume 19, whether those proceedings not included in volume 19 were reported, and the identity of the court reporter for any reported proceedings on October 18, 2023, that were not included in volume 19.
Concerning volume 19, appellant also objects:
Appellant's objections to volume 19 on page "6 of 16" of his May 9, 2024 motion and page "43 of 57" of his July 2, 2024 motion appear to be off by one page. Accordingly, the page numbers referenced in this order for volume 19 are one page higher than appellant listed in his motions.
page 8, lines 6 to 8, "MR. WADE: It's not relevant. It's - -whatever items I have in my personal time is my personal time. It's - - it doesn't prove motive, intent, no", should be "It's prejudicial. whatever items I have in my personal time is my personal life. It's prejudicial more than probative, it doesn't prove motive, intent, no".
page 8, line 12, "separated in their file, for I guess sensitive purposes", should be "separated in to their sensitive file".
page 12, lines 1 to 12, concerning the marking of exhibit A2, have been added.
page 16, lines 17 to 18, "Q. Does your office have any advice or opinion as to who committed this crime", should be "Q. Does your office give or have any advisement or opinion as to who committed this crime".
page 16, line 22, "A. Not - -", should be "Not looking or asking him to speculate".
page 21, line 18, "bush", should be "brush".
page 29, line 5, "Thursday the 25th", should be "Tuesday the 24th".
page 33, line 6, "March 25th of 2020", should be "March 24th of 2020". page 37, lines 18 to 25, concerning exhibit A2 were added.
page 53, lines 1 to 6, "Q. And so have you had experience whenever parking a car, seeing people and watching the date and time stamp and looking at the Wyze doorbell camera as it pops up on your phone, and knowing that the date and time stamp is accurate? A. Correct", were added.
page 56, line 3, and page 57, line 10, "Tara Day Roberts" should be "Terranae Roberts". page 99, line 16, "stick" should be "dip".
page 106, line 10, "during the interview was at that terminated interview", should be "during the interview was after I terminated that interview".
page 112, line 5, "Yeah, the audio", should be "Yeah, the audio and visual interview".
page 125, lines 22 to 23, "you can see an individual exit the vehicle", were added.
page 133, lines 16 to 17, "there was cell phones recovered there", should be "there was a cell phone recovered there".
page 148, line 21, "And it's a violation", should be "And it's a violation of my Fourth Amendment rights".
page 149, line 25, "admitted as there's no probable cause that - -", should be "admitted as there's no probable cause that exists for the search warrant".
page 153, lines 4 to 5, "A. It is a sexual assault collection kit to collect evidence of sexual assault", should be "A. It is a SANE kit to collect evidence of sexual activity".
page 154, line 24, "MR. WADE: No objections", should be "MR. WADE: My objection to the DNA contained in the SANE kit".
page 158, line 17 to page 159 line 1, concerning whether to open lab Item Number 17 have been added.
page 160, lines 12 to 13, "Choice Moore Unit", should be "Buster Cole Unit".
page 161, line 24, "MR. WADE: No objection", should be an objection of speculation.
page 165, line 17, "offer and admit 133 which is the box containing State's", should be "offer and admit 133 which is the box that contained State's".
page 207, lines 23 to 24, "the phone that I did not - -involuntarily offer. I believe the search warrants were invalid", should be "the phone that I did not intelligently and voluntarily offer, I believe the warrants were invalid and I terminated that interview".
page 226, line 15, "MR. WADE: No objection", should be an objection to evidence obtained from an invalid and illegal subpoena.
We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements.
All other objections to volume 19 are overruled.
Because the page numbers cited by appellant in his motions to correct volume 19 are off by one page, we ORDER appellant at the hearing required by this order to tender his copy of volume 19 to the trial court, and we order the trial court to make a finding whether the page numbers in appellant's copy of volume 19 are consistent with those in the copy filed in this Court. If the trial court finds the page numbers in appellant's copy of volume 19 are inaccurate, the trial court shall order the court reporter to provide appellant a paper copy of volume 19 with accurate page numbers.
Concerning volume 20, appellant objects:
page 121, line 22, "A. Not Ms. Gunnels' phone, but - -", should be "A. Not Ms. Gunnels' phone records".
page 132, lines 18 to 25, "Q. All right. Now, by the way, in reviewing the phone records of the defendant's phone, and the phone - - and the phone itself, were you able to determine whether there were any movies that were being played on that phone that night at any time in the early morning hours of the 22nd? A. Not that I saw in the forensic examination, sir, no", were added.
page 137, line 20, "4:24", should be "4:23".
page 138, line 4, "calls are at, again, 4:23, 4:24, 4:27", "4:24" was added.
page 168, lines 13, 20 to 21, and 24, "sexual assault kit", should be "sexual activity or SANE kit". Appellant also object that there was a discussion at that point not included in the reporter's record that the kits are labeled sexual activity kits and not sexual assault kits.
page 174, lines 11 to 12 and 18 to 19, "sexual assault kit", should be "sexual activity or SANE kit".
page 193, line 12, "likelihood ratios show, so - -", should be "likelihood ratios show, so no".
page 199, line 21, "really - -", should be "really tell".
page 200, line 15, "A. Just the age gap, I guess, but, I mean . . .", should be "A. Just the age gap, I guess, but, I mean other than that no".
page 200, line 25, "A. Yes", was added.
page 204, line 25, to page 205, line 2, "and that they had sexual relations, and that's one of the reasons he was the number one suspect", was added.
page 209, line 11, "2018. It was a couple of years", was added.
page 220, line 21, "about year ago", should be "about two years ago".
We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements.
Appellant also objects that the exhibit index to volume 20 lists State's exhibit 234 as being offered and admitted on page 234, but there are only 222 pages in volume 20. The reporter's record indicates the exhibit was admitted in volume 20 on page 164. However, there is no statement by the trial court at that point admitting State's exhibit 234. We ORDER the trial court to find whether State's exhibit 234 was admitted into evidence, and if so, whether it was admitted where indicated in volume 20.
All other objections to volume 20 are overruled.
Concerning volume 21, appellant objects:
page 23, line 1, "defendant still been arrested at that point", should be "defendant still hasn't been arrested at this point".
page 26, line 23, "Q. Mr. Toscano telling you - -", should be "Q. Mr. Toscano telling you he thought that Mr. Wade and Ms. Gunnels were in a relationship".
page 27, lines 1 to 2, "Q. And a couple of those people told you that they thought that - -", should be "Q. And a couple of people told you that they thought Mr. Wade and Ms. Gunnels were in a relationship".
page 38, line 23, "Q. And can you describe how they - - what you", should be "Q. And can you describe how they were with each other, what you".
page 38, line 25, to page 39, line 1, "but I never knew. I never asked. They never told me", was added.
page 39, lines 7 to 8, "and they thought they were never going to see each other again after class", should be "like they thought they were never going to see each other again".
page 39, line 9, "Q. So affectionate - -", should be "Q. So affectionate hugs."
page 39, line 14, "Not that I was aware of", should be "So I wasn't trying to get in their business".
page 124, line 6, "MR. J. SMITH: We don't object", was added. We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements. All other objections to volume 21 are overruled.
Concerning volume 22, appellant objects:
page 15, line 11, after "issues - -" appellant stated issues with evidence, timelines, and facts of testimony that are not transcribed.
page 16, line 4, "is because - -", should be "is because it was for Emilia, she purchased the taser. It was a flashlight."
page 33, line 25, "I'm impeaching him", should be "I'm impeaching her".
page 34, lines 6 to 8, "MR. Wade: The fact that she's also born asexual, and the types of things she would or would not do, whether she would or would not tell people", should be "Mr. WADE: Isn't it a fact that you told Investigator Rodriguez Emilia was pansexual mixed with asexual? That she would wait for a strong bond before sex and she would often do things without telling people".
page 84, line 12, "kill her" was added.
We ORDER the trial court to find whether the reporter's record is accurate, and if it is inaccurate, to find the substance of the statements. All other objections to volume 22 are overruled.
All objections to volume 23 are overruled.
Appellant objects that numerous exhibits were not marked in the copy of the reporter's record sent to him. We ORDER the trial court to direct the court reporter to label any unidentified exhibits in appellant's copy of the reporter's record.
Appellant objects that his copy of the reporter's record does not include exhibit A1. We ORDER the trial court to find whether appellant received a copy of exhibit A1. If the trial court finds that appellant did not receive a copy of exhibit A1, the trial court shall order the court reporter to provide appellant a copy.
Appellant objects that the copy of State's exhibit 45 he received, the autopsy report, is incomplete. We order appellant to tender the copy of State's exhibit 45 he received from the court reporter, and we ORDER the trial court to compare the copy of the report appellant received with the copy admitted into evidence and find whether appellant's copy is incomplete. If the trial court finds appellant's copy of State's exhibit 45 is incomplete, the trial court shall order the court reporter to provide appellant a complete copy of State's exhibit 45. All other objections to volume 24 of the reporter's record and the exhibits are overruled.
All other objections to the reporter's record are overruled.
Objections not specifically discussed in this order have been considered and are overruled.
HEARING We ORDER the trial court to hold a hearing on the record within FORTY-FIVE DAYS of the date of this order with appellant, counsel for the State of Texas, and court reporter Paula Thomas present.
The trial court's findings required by this order are due SEVENTY-FIVE DAYS after the date of this order. If the trial court cannot meet this deadline, the trial court shall notify this Court in writing of the date the trial court reasonably expects to file the findings.
The court reporter at the hearing shall file a reporter's record of the hearing required by this order within THIRTY DAYS after the hearing required by this order.
If the trial court finds the clerk's record is inaccurate or deficient, the district clerk shall file, no later than THIRTY DAYS after the trial court's findings are filed with this Court, such supplemental clerk's records as are necessary to correct any inaccuracies or deficiencies in the clerk's record.
If the trial court finds any volume of the reporter's record is inaccurate, the court reporter shall file a corrected volume of any inaccurate volume no later than THIRTY DAYS after the trial court's findings are filed with this Court.
SERVICE We DIRECT the Clerk to send copies of this order to the Honorable Brian Gary, Presiding Judge, 397th Judicial District Court; Kelly Ashmore, Grayson County District Clerk; Paula Thomas, Official Court Reporter, 397th District Court; appellant Ebby Dewayne Wade; and counsel for all parties.
We further DIRECT the Clerk to send appellant by first class mail copies of pages 1164, 1165, 1166, 1167, 1168, and 1169 of the clerk's record.
ABATEMENT We ABATE this appeal for the trial court to comply with this order. The appeal shall be reinstated when the Court receives the trial court's findings or at such other time as the Court deems appropriate.