Order entered December 6, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01366-CR
DAVID GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F18-52886-H
ORDER
Before the Court is appellant’s December 2, 2019 third motion regarding the reporter’s
record and to reset the briefing timetable.
In his third motion, appellant requests we abate this appeal for a hearing to determine
whether the State’s Exhibit 17, a CD containing redacted recordings of jail telephone calls, is
complete and accurately reflects what telephone calls were admitted at trial. We GRANT the
motion to the extent we ORDER the trial court to conduct a hearing WITHIN TWENTY
DAYS OF THE DATE OF THIS ORDER and to make findings of fact regarding:
how many telephone calls were admitted by the State during its case-in-chief;
whether State’s Exhibit 17 contains all of the telephone calls admitted at trial or
whether, as appellant contends, it contains only 10 of 11 calls admitted;
if Exhibit 17 does not contain all of the calls admitted at trial, (1) whether any
calls were published from another source; and (2) if so, whether the court
reporter has an exhibit or exhibits containing these calls and when the court
reporter can file the supplemental reporter’s record containing said exhibit(s)
with the missing calls;
if Exhibit 17 does not contain all of the calls admitted at trial and the court
reporter does not have the other calls, whether the parties can agree on an
exhibit or exhibits that contains the missing calls, see TEX. R. APP. P. 34.6(e)(1).
if Exhibit 17 does not contain all of the calls admitted at trial and if the parties
cannot agree on the missing calls, the trial court shall settle the dispute as set out
in Texas Rule of Appellate Procedure 34.6(e)(2) and order, if appropriate, the
court reporter to conform the reporter’s record to what occurred in the trial court
and to file certified corrections in this Court. See TEX. R. APP. P. 34.6(e)(2).
if Exhibit 17 does not contain all of the calls admitted at trial and the parties
cannot agree on the exhibits, whether the exhibits (1) have been lost or
destroyed through no fault of the appellant, (2) are necessary to the appeal’s
resolution, and (3) cannot be replaced by the parties’ agreement or by a copy
determined by the trial court to accurately duplicate with reasonable certainty
the original exhibit(s). See TEX. R. APP. P. 34.6(f).
We ORDER a supplemental reporter’s record of the hearing including, if appropriate,
any exhibits of telephone calls and a supplemental clerk’s record with the trial court’s findings
regarding the same filed with this Court within THIRTY DAYS OF THE DATE OF THIS
ORDER.
We DEFER ruling on that portion of the motion requesting we reset the briefing
timetable.
We DIRECT the Clerk of the Court to transmit a copy of this order, by electronic
transmission, to the Honorable Tina Yoo Clinton, Presiding Judge, Criminal District Court No.
1; court reporter Crystal R. Brown; court reporter Sheryl Zeno; Felicia Pitre, Dallas County
District Clerk; and counsel for the parties.
We ABATE this appeal to allow the trial court to comply with this order. The appeal
shall be reinstated when we receive the supplemental records of the hearing, the exhibits, and the
–2–
trial court’s findings of fact or when the Court otherwise deems it appropriate to reinstate the
appeal.
/s/ LANA MYERS
JUSTICE
–3–