COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
| DION JUAN DENNIS,
Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-02-00044-CR Appeal from the Criminal District Court No. 2 of Dallas County, Texas (TC# F-0001092-TI) |
MEMORANDUM OPINION
Dion Juan Dennis has filed a motion requesting this Court to abate this appeal and remand the cause to the trial court to determine whether parts of the clerk's record and reporter's record have been lost or destroyed.
Procedural Background and Grounds for the Motion
Dennis's counsel notes that although the trial court conducted a hearing on pretrial motions on September 22, 2000, the reporter's record does not include a transcription of this hearing. Dennis's request for the record includes a request for a transcription of testimony taken at pretrial hearings. Counsel states that he "has attempted without success to reach the reporter who transcribed these proceedings." He asserts that the appeal cannot be adequately briefed without the record of the pretrial hearing.
Counsel also notes that although the trial judge stated that the completed juror questionnaires would be made a part of the record, they are not included in the record that has been filed in this Court. (1) The request for preparation of the record does not include a request for the jury questionnaires, but it does include a request for all exhibits introduced at any hearing. Counsel states that he "has been unable to locate" the questionnaires. He suggests that the juror questionnaires are necessary to the appeal because the use of peremptory challenges and challenges for cause may be an issue on appeal.
Relevant Rules
The Texas Rules of Appellate Procedure set forth a procedure to follow when a relevant item is missing from the record. "[T]he trial court, the appellate court, or any party may by letter" direct the trial court clerk or the court reporter to file a supplemental record containing the omitted items. Tex. R. App. P. 34.5(c)(1), 34.6(d). Dennis's counsel asserts that he has been unable to contact the court reporter and that he has been unable to find the juror questionnaires, but he does not state that he has made a written request to the trial court clerk or court reporter to file a supplemental record. Accordingly, the motion to abate and remand is premature. We will, however, exercise our authority under Rules 34.5(c)(1) and 34.6(d) to order the trial court clerk and court reporter to supplement the records or explain why the records cannot be supplemented.
Disposition
For the reasons stated herein, it is ordered that:
(1) the Clerk of Criminal District Court Number 2 of Dallas County shall file in this Court within thirty days either a supplemental clerk's record containing the completed juror questionnaires in this cause or an explanation why such a supplemental record cannot be filed;
(2) Ms. Kathy Myres, former Official Court Reporter of Criminal District Court Number 2 of Dallas County, shall file in this Court within thirty days either a supplemental reporter's record containing the completed jury questionnaires and a transcription of the hearing conducted in this cause on September 22, 2000, or an explanation why such a supplemental record cannot be filed; and
(3) Appellant's Motion to Abate Appeal and for Remand for Hearing on Lost or Destroyed Record is held in abeyance pending our receipt of the supplemental records or responses from the trial court clerk and court reporter.
SUSAN LARSEN, Justice
June 19, 2003
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish)
1. It is not clear whether the judge intended to make the questionnaires an exhibit to the reporter's record or part of the clerk's record. The prosecutor asked that they "be made part of the record for purposes of this hearing [regarding the use of peremptory strikes]." The judge granted the request and stated that he would "admit" them and that he would "submit the original copies to the Court."