Order filed August 12, 2010
In The
Eleventh Court of Appeals
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No. 11-09-00222-CR
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ANTHONY BERNARD NEWSOME, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 13th District Court
Navarro County, Texas
Trial Court Cause No. 31774-CR
O R D E R
The State has filed a motion in this court to require the court reporter to supplement the reporter’s record. The State seeks to have the following included in the appellate record:
1. The transcription of the discussion between the trial court, appellant’s counsel, and the State regarding the State’s election between the various counts in the indictment;
2. The transcription of the trial court’s order concerning the State’s election;
3. The transcription of the charge conference and any objections to the charge; and
4. The transcription of the punishment hearing including any stipulations, testimony, and exhibits as well as any rulings or orders by the trial court.
The State also notes that Volumes IV and VI are identical and that it appears that Volume VI should be the transcription of the punishment phase. The State further explains that the DVD contained in the record as State’s Exhibit No. 5 (the DVD created at the Advocacy Center) is not the correct DVD. Appellant has filed a response in which he agrees with the State concerning the defects in the record and asks this court to abate this appeal in order that the trial court may determine the extent of the omissions in the reporter’s record and if the reporter will be able to correct these omissions. Per appellant’s request, we have reviewed the DVD labeled State’s Exhibit No. 5 and note that we are unable to retrieve the information on it.
Therefore, the appeal is abated. The trial court is directed to conduct a hearing to determine the status of the reporter’s record and resolve any inaccuracies in the reporter’s record. Tex. R. App. P. 34.6(c)(3). In the event that the trial court determines that portions of the reporter’s record have been lost or destroyed or are inaudible, the trial court is directed to determine whether appellant made a timely request for the record; if the lost, destroyed, or inaudible portions are missing due to no fault of appellant as well as if those portions are significant; if those portions are necessary to the appeal’s resolution; if the parties can agree as to a replacement of State’s Exhibit No. 5; and, in the event the parties cannot agree, if there exists a copy or copies that the trial court can determine accurately duplicates the original State’s Exhibit No. 5. Tex. R. App. P. 34.6(f).
The clerk of the trial court is directed to prepare and forward to this court a supplemental clerk’s record containing any orders and findings entered by the trial court. The court reporter is directed to prepare and forward to this court a supplemental reporter’s record of the hearing. These supplemental records are due to be filed in this court on or before September 20, 2010.
When the supplemental records are filed in this court, the trial court’s findings will be reviewed, and the appeal may be reinstated.
The appeal is abated.
PER CURIAM
August 12, 2010
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.