Order entered March 25, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00784-CR
RUBEN LABRADA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F18-75816-V
ORDER
Before the Court is appellant’s March 23, 2022 motion to abate the appeal in
which he notes that the punishment charge is not in the clerk’s record, is not on
OnBase, and cannot be located. Appellant asks that we abate the appeal to facilitate
the discovery of the punishment charge. After reviewing the clerk’s record, we
agree that the punishment charge is missing. We also note that while the
guilt/innocence charge is in the clerk’s record, the jury’s verdict is missing.
Rule 34.5 provides that the clerk’s record must contain the court’s charge
and the jury’s verdict. TEX. R. APP. P.34.5(a). Considering this, we ORDER the
trial court to hold a hearing, WITHIN THIRTY DAYS of the date of this order, to
determine whether the jury’s verdict on guilt/innocence and the court’s punishment
charge, signed by the jury, exist and can be filed in a supplemental clerk’s record
or whether the documents have been lost or destroyed. If the trial court determines
either or both of the documents exist, the trial court shall order a copy of those
documents be filed in a supplemental clerk’s record.
If the trial court determines that either or both documents have been lost or
destroyed, the trial court shall determine whether the documents can be
reconstructed and replaced by agreement or by written stipulation of the parties. If
the parties cannot agree or stipulate, the trial court is directed to determine what
constitutes accurate copies of the documents and order that those copies be
included in a supplemental clerk’s record. See TEX. R. APP. P. 34.5(e).
We ORDER the Dallas County District Clerk to transmit to this Court,
WITHIN FORTY-FIVE DAYS of the date of this order, a supplemental clerk’s
record containing the written findings of fact made by the trial court, if any, and
the copies of the jury’s verdict on guilt/innocence and the court’s charge on
punishment, signed by the jury. A new deadline for the filing of appellant’s brief
will be established upon reinstatement of the appeal.
We DIRECT the Clerk to send copies of this order to the Honorable
Brandon Birmingham, Presiding Judge, 292nd Judicial District Court; to Dallas
County District Clerk Felicia Pitre; and to counsel for all parties.
We ABATE the appeal to allow the trial court to comply with this order.
The appeal shall be reinstated when the findings are received or at such other time
as the Court deems appropriate.
/s/ BILL PEDERSEN, III
JUSTICE