IN THE
TENTH COURT OF APPEALS
No. 10-17-00107-CR
JOHN TREMAINE JONES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 39,241
ABATEMENT ORDER
John Tremaine Jones was convicted in February of 2017. Jones’ court-appointed
attorney filed an Anders brief in November of 2017. Counsel was ordered to provide Jones
a copy of the record, and Jones filed a response to counsel’s Anders brief in January of
2018. The State was then given an opportunity to respond, and a brief for the State was
filed on March 30, 2018. This appeal was placed at issue on the same date.
In our independent review of the appeal pursuant to Anders and its progeny, we
discovered that State’s Exhibit 2, an in-car video, was not included in the reporter’s
record. On April 4, 2018, the reporter was ordered to obtain State’s Exhibit 2 from the
trial court clerk, prepare a copy of the exhibit, and file the copy of the exhibit with this
Court as a supplemental reporter’s record within 14 days from the date of the Order. See
TEX. R. APP. P. 34.6(d); (g)(1). The reporter was also ordered to contact the Clerk of this
Court within 7 days from the date of the Order if for any reason the exhibit could not be
copied. More than 14 days passed, and no response was received from the reporter and
no exhibit was filed.
In response to the Court’s inquiry, on April 19, 2018, the reporter informed this
Court that she was no longer employed by Hill County. She also informed the Court
that: 1) she had spoken with the Hill County District Clerk who indicated that her office
was having trouble locating the trial exhibits, 2) she had contacted the sheriff’s
department who indicated it had the original pursuit video and would make a copy; 3)
the department’s evidence room personnel were out of the office and would,
“[h]opefully,” get a copy to the Court “next week[;]” and 4) “[i]f it becomes apparent that
will not happen, we will keep you updated.” We have not received the exhibit, and we
have not been updated.
It is the joint responsibility of this Court and the trial court to see that a complete
and accurate appellate record is timely filed. TEX. R. APP. P. 35.3(c). We have pushed this
Jones v. State Page 2
effort and the County personnel involved as hard as feasible and now find it necessary
to enlist the trial court’s help.
Accordingly, this case is abated to the trial court to have a hearing pursuant to the
Texas Rules of Appellate Procedure to determine if the exhibit has been lost or destroyed
and if so, whether Jones is entitled to a new trial. See TEX. R. APP. P. 34.6(f). Specifically,
the trial court is Ordered to determine:
1. whether, without Jones’s fault, a significant exhibit has been lost or
destroyed;
2. if lost or destroyed, whether the exhibit is necessary to the appeal’s
resolution;
3. if lost or destroyed, whether the exhibit can be replaced by the agreement
of the parties or whether the trial court can determine with reasonable
certainty that a copy of the exhibit accurately duplicates the original exhibit;
and
4. whether, pursuant to Rule 34.6(f) of the Texas Rules of Appellate
Procedure, Jones is entitled to a new trial.
The trial court is Ordered to conduct this hearing within 14 days from the date of
this Order. Supplemental Clerk’s and Reporter’s Records containing the trial court’s
written and oral findings are Ordered to be filed with this Court within 21 days from the
date of this Order. Either a copy of the original State’s Exhibit 2 or a replacement copy as
agreed by the parties or as determined by the trial court to be an accurate copy pursuant
to the Rules is Ordered to be filed with this Court within 28 days from the date of this
Order.
Jones v. State Page 3
If no State’s Exhibit 2 is timely filed, this Court may be required to hold that the
exhibit is lost or destroyed as defined by Rule 34.6, reverse the trial court’s judgment, and
remand the case to the trial court for a new trial.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed May 16, 2018
Jones v. State Page 4