WILLIAM HALL, JR.,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

    
 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01089-CR
 
WILLIAM HALL, JR.,FROM A DISTRICT COURT
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES McCLUNG, THOMAS AND OVARD
OPINION BY JUSTICE OVARD
JULY 26, 1989
 
        Although William Hall asserts five points of error in this appeal of his conviction for unlawful possession of cocaine, this opinion will address only his third point of error. Hall contends that the trial court erred because the jury charge for the guilty-not guilty phase of the trial is omitted from the transcript. For reasons discussed below, we abate this appeal and remand this case to the trial court for a hearing to supplement the record.
        The transcript indicates that the trial court's charge on the guilty-not guilty phase of the trial was "not found." The charge is not presented for our review. Hall argues that this omission denies him the right to inspect the charge for egregious harm, and denies him due process of law and due course of law.
        The record on appeal shall consist of a transcript and, where necessary, a statement of facts. TEX. R. APP. P. 50(a). The transcript on appeal shall include the charge of the court. TEX. R. APP. P. 51(a). When the record or any portion thereof is lost or destroyed it may be substituted in the trial court. When so substituted, the record may be prepared and transmitted to the appellate court, as in other cases. TEX. R. APP. P. 50(e). Should it appear after submission that the case has not been properly prepared, as shown in the transcript, the appellate court may make such orders as may be necessary to secure a more satisfactory submission of the case. See TEX. R. APP. P. 55(c).
        Although Hall did not object to the omission in the transcript or request a hearing before the trial court, we hold that such a hearing for substitution of the record would be appropriate for proper submission of the case for appellate review. Where the missing part of the record, including the trial court's charge, is not included in the transcript, including the trial court's charge, a hearing may be had and the trial court may make such substitution. See Harris v. State, No. 69, 366, slip op. at p. 7-8 (Tex. Crim. App. June 28, 1989)(not yet reported). The trial court may substitute a charge that is substantially the same as that given the jury. See James v. State, 138 S.W. 408, 408-09 (Tex. Crim. App. 1911).
        The trial court's charge to the jury is an essential part of the record to be included in the transcript for appellate review. The Rules of Appellate Procedure provide an adequate remedy for such an omission. See TEX. R. APP. P. 50(e); TEX. R. APP. P. 55(c). We therefore abate this appeal and remand this case so that the trial court may conduct a hearing and substitute the record by including a charge substantially the same as that provided for the jury in the guilty-not guilty phase of the trial.
                                                  
                                                  JOHN OVARD
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01089.F
 
 
File Date[01-02-89]
File Name[881089F]