COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
SECOND ORDER OF CONTINUING ABATEMENT
Appellate case name: Bartolo Cardenas Perez v. The State of Texas
Appellate case number: 01-14-00061-CR
Trial court case number: 1846057
Trial court: County Criminal Court at Law No. 13 of Harris County
This case was abated and remanded to the trial court for a hearing and findings regarding
the reporter’s record filed in this Court on November 9, 2015. On April 11, 2016, appellant’s
counsel notified the Clerk of this Court that additional time was needed “to conclude the matter.”
The trial court clerk has filed supplemental clerk’s records that include, among other documents,
the trial court’s April 15, 2016 order denying the “State’s Motion to Have the Honorable Don
Smyth Preside over the Abatement Hearing” and an “Affidavit of Judge Don Smyth.”1
However, the Clerk of this Court has not received a supplemental clerk’s record containing
findings, recommendations, or orders regarding the court reporter’s record filed on November 9,
2015, or a reporter’s record or supplemental reporter’s record as directed in this Court’s orders
issued on March 22 and June 16, 2016.
Accordingly, we continue the abatement of this appeal and remand to the trial court to
immediately conduct any additional hearing at which a representative of the Harris County
District Attorney’s Office and appellant’s appointed counsel, Sarah V. Wood, shall be present.
Appellant also shall be present for the hearing in person or, if appellant is incarcerated, at the
trial court’s discretion, appellant may participate in the hearing by use of a closed-circuit video
teleconferencing.2 As set out in the March 22 and June 16, 2016 abatement orders, the trial court
is directed to:
1 Documents filed in this Court reflect that the Honorable Sherman Ross presided over an
April 7, 2016 abatement hearing.
2 If appellant is now incarcerated, he may appear by closed video teleconference. Any such
teleconference must use a closed-circuit video teleconferencing system that provides for a
simultaneous compressed full motion video and interactive communication of image and
sound between the trial court, appellant, and any attorneys representing the State or
appellant. On request, appellant and his counsel shall be able to communicate privately
without being recorded or heard by the trial court or the attorney representing the State.
1) determine whether any portions of the December 18, 2013 hearing have been
inaccurately recorded in the reporter’s record filed in this Court and whether the
court reporter is able to prepare, certify, and file a transcription of those portions
in a supplemental reporter’s record to be filed in this appeal;
2) determine whether any portion of the recording of the December 18, 2013 hearing
is lost, destroyed, or inaudible;
3) if any portions of the recording are lost, destroyed, or inaudible, determine
whether those portions are necessary to the appeal’s resolution and whether the
parties can replace those portions by agreement;
4) determine whether the exhibits from the December 18, 2013 hearing are lost or
destroyed.
a) if any of the exhibits are lost or destroyed, determine whether those exhibits
are necessary to the appeal’s resolution;
b) determine whether any lost or destroyed exhibits can be replaced by
agreement of the parties, and if the exhibits cannot be replaced by agreement,
determine whether those exhibits can be replaced by copies determined by the
trial court to accurately duplicate with reasonable certainty the exhibits from
the December 13, 2013 hearing;
5) make any other findings and recommendations the trial court deems appropriate;
and
6) issue written findings of fact, conclusions of law, and recommendations as to
these issues, separate and apart from any docket sheet notations.
If any portion of the trial proceedings has been inaccurately recorded in the reporter’s
record on file with this Court but can be prepared, certified, and filed by the court reporter, the
court reporter shall prepare, certify, and file a supplemental reporter’s record containing the
missing or inaccurate portions of the trial proceedings no later than 30 days from the date of this
order. If any of the exhibits are able to be located or have been lost or destroyed but can be
replaced by agreement of the parties or the trial court, the court reporter shall file a supplemental
exhibit volume to the reporter’s record containing the located or replaced exhibits no later than
30 days from the date of this order.
The trial court shall have a court reporter, or court recorder, record any hearing. The trial
court clerk is directed to file a supplemental clerk’s record containing the trial court’s findings,
recommendations, and orders with this Court within 30 days of the date of this order. The court
reporter is directed to file the reporter’s record of the hearings within 30 days of the date of this
order.
The appeal remains 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 records that comply
with our order are filed with the Clerk of this Court.
It is so ORDERED.
Judge’s signature: /s/ Russell Lloyd
Acting individually
Date: August 16, 2016