IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JANUARY 28, 2003
______________________________
CECIL WARD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;
NO. B2767-0108; HONORABLE ED SELF, JUDGE
_______________________________
Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J. (1)
ABATEMENT AND REMAND
On April 4, 2002, appellant Cecil Ward was convicted of murder with the use of a deadly weapon. His punishment was assessed by the jury at life imprisonment in the Institutional Division of the Department of Criminal Justice. Appellant timely filed his appeal and the clerk's record was filed in this court on August 6, 2002. The court reporter has been granted four extensions of time within which to file the reporter's record, with the last extension being granted until December 13, 2002. However, we have never received the reporter's record. In his last motion seeking an extension of time, the court reporter certified that appellant had made the required payment and the written designation of record.
This state of the record requires us to remand the case to the 242nd District Court of Castro County to conduct hearings as mandated by Texas Rules of Appellate Procedure 37.3(2) and 38.8.
Upon remand, the judge of the trial court shall immediately cause proper notice to be given and conduct a hearing to determine:
1. whether appellant desires to prosecute the appeal, and if so,
2. why appellant has been deprived of a reporter's record,
3. if any other orders are necessary to ensure the diligent and prompt pursuit of appellant's appeal.
In support of its determination, the trial court shall prepare and file written findings of fact and conclusions of law and cause them to be included in a supplemental clerk's record. The hearing proceedings shall be transcribed and included in a supplemental reporter's record. These supplemental records shall be submitted to this court not later than February 28, 2003.
It is so ordered.
Per Curiam
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
of the Amarillo Police Department. See 2A Steven Goode, Olin Guy Wellborn, III, and M. Michael Sharlot, Courtroom Handbook on Texas Evidence 352 (Texas Practice 2002).
Rule 508 does not prescribe a specific procedure for assertion of the privilege. Indeed, it does not require that the privilege be claimed in writing nor by motion for protective order, motion in limine, nor otherwise, and appellant cites no authority setting forth a specific procedure for asserting the privilege. At the pretrial hearing on appellant's motion to disclose the confidential informant's identity, Officer Ponce, as "representative of the public entity to which the information was furnished," testified that he did not want the identity of his confidential informant disclosed for safety reasons. The search warrant also recited, "[t]he affiant [Officer Ponce] does not wish to reveal the identity of the confidential informant for the protection and safety of the confidential informant." Based on our review of the record, we conclude Officer Ponce sufficiently claimed the informer privilege and thus, the trial court did not abuse its discretion in denying appellant's motion to disclose the identity of the informer. Appellant's first and second issues are overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.