Abatement Order filed January 21, 2015
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00678-CR
____________
GLYNN CHASE WASHINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 12-DCR-059441A
ABATEMENT ORDER
On January 13, 2015, we ordered the clerk of the 240th District Court to
deliver to the Clerk of this court the original of State's Exhibit 1, a CD. On January
20, 2015, the Criminal Appeals District Clerk with the Fort Bend County District
Clerk’s Office averred to this court that State’s Exhibit 1, a CD, is not in their
possession. Accordingly, we enter the following order.
Rule 34.6(f) of the Texas Rules of Appellate Procedure provides that an
appellant is entitled to a new trial when the reporter’s record or exhibits are lost,
under the following circumstances:
(1) if the appellant timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant
portion of the court reporter’s notes and records has been lost or destroyed . . . ;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the
lost or destroyed exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot
be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be
replaced either by agreement of the parties or with a copy determined by the trial
court to accurately duplicate with reasonable certainty the original exhibit.
Tex. R. App. P. 34.6(f).
Accordingly, the trial court is directed to conduct a hearing to determine the
following: (1) whether appellant timely requested a reporter’s record; (2) whether
without the appellant’s fault, a significant exhibits has been lost or destroyed; (3)
whether the lost exhibit is necessary to appellant’s appeal; and (4) whether the
parties can agree on replacement of the missing exhibit with a copy, or (5) if the
trial court can determine that a copy accurately duplicates the missing exhibit with
reasonable certainty or the missing exhibit can be replaced by agreement. The
court is directed to reduce its findings to writing and to have a supplemental clerk’s
record containing those findings filed with the clerk of this court, together with a
reporter’s record from the hearing, within 30 days of the date of this order.
The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
trial court’s findings and recommendations are filed in this court. The court will
also consider an appropriate motion to reinstate the appeal filed by either party, or
the court may reinstate the appeal on its own motion. It is the responsibility of any
party seeking reinstatement to request a hearing date from the trial court and to
schedule a hearing in compliance with this court’s order. If the parties do not
request a hearing, the court coordinator of the trial court shall set a hearing date
and notify the parties of such date.
PER CURIAM