Order entered March 30, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01419-CR
TERRY RAY MCMILLAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-50140-UR
ORDER
Appellant’s case was tried in 2006. In 2014, the Texas Court of Criminal Appeals
granted appellant an out-of-time appeal. See Ex parte McMillan, No. WR-80,864-02 (Tex. Crim.
App. Sept. 17, 2004) (not designated for publication). The clerk’s record and a seven-volume
reporter’s record have been filed. The Court now has before it the March 26, 2015 letter from
court Anne Meredith saying that State’s Exhibit no. 23, a blown-up copy of a photograph, has
been destroyed, and that the exhibit was not copied. The reporter’s record reflects that State’s
Exhibit no. 23 is a blown-up copy of State’s Exhibit 21, which is included in the Exhibit volume
of the reporter’s record.
Nevertheless, pursuant to Texas Rule of Appellate Procedure 34.6(f), we ORDER the
trial court to make the following findings:
Whether appellant timely requested preparation of the reporter’s record;
Whether the record can be supplemented with State’s Exhibit no. 23, the blown
up copy of State’s Exhibit no. 21;
If the record cannot be supplemented with State’s Exhibit no. 23, whether
appellant is at fault for the loss or destruction of the exhibit; and
Whether the parties can agree on a substituted record.
We ORDER the trial court to transmit a record containing its findings, any supporting
documentation, and any orders, to this Court within thirty days of the date of this order. In
making its findings, the trial court may take evidence from witnesses in person or by affidavit.
We DIRECT the Clerk to send copies of this order, by electronic transmission, to the
Honorable Jennifer Bennett, Presiding Judge, 265th Judicial District Court, 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 thirty days from the date of this order or when the findings are received.
/s/ ADA BROWN
JUSTICE