Broderick Keith Lewis v. The State of Texas--Appeal from 12th District Court of Walker County (per curiam)

IN THE

TENTH COURT OF APPEALS

No. 10-09-00308-CR

Broderick Keith Lewis,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 12th District Court

Walker County, Texas

Trial Court No. 23,958

ABATEMENT ORDER

Upon the filing of the reporter's record in this cause after two motions for extension were granted for the purpose of finding or reconstructing exhibits, the reporter stated that she was unable to include multiple exhibits that were admitted into evidence during the trial of this cause because they could not be located.  The reporter also indicated that she had conferred with the State in an attempt to reconstruct the exhibits that were to be included in the reporter's record prior to filing the reporter's record, but was unable to reconstruct some of the exhibits. 

The State also filed a motion to supplement the record to include one of the missing exhibits, a BB gun, which this Court granted.  However, this cause was subsequently abated to order the delivery of that original exhibit to this Court.  We have now received that exhibit.  However, that exhibit is only one of twelve missing exhibits.

Lewis has complained of the incomplete record to this Court.  Lewis states that these exhibits are necessary to the disposition of the appeal.  Lewis has challenged the sufficiency of the evidence and therefore, a complete and accurate reporter's record is required.  See Tex. R. App. P. 34.6(c)(5).  The difficulty presented is somewhat unique to this proceeding.  Lewis waived his right to a trial by jury and the trial was before the court.  Lewis's counsel on appeal is not the same as his trial counsel.  Several of the exhibits were admitted into evidence with little description, including three DVD's containing statements made by Lewis during the investigation.  Two photographs were admitted but it is unclear precisely what they portray.  The trial court indicated that it would review the DVD's at a later time, which are part of the missing exhibits.

It is also problematic that it appears that all of the exhibits that were provided in the reporter's record filed with this Court were found or reconstructed by consulting the State without the consultation of Lewis.  We are unable to determine whether Lewis agreed with the exhibits contained in the reconstructed reporter's record.  

            At this juncture, we cannot grant Lewis a new trial as he has requested.  See Tex. R. App. P. 34.6(f).  The trial court is the appropriate forum to settle disputes about the missing exhibits.  See Tex. R. App. P. 34.6(e)(3).  We thus will abate the appeal to the trial court for a hearing, after notice, to determine whether the exhibits have been lost or destroyed without the fault of Lewis within the meaning of Rule 34.6(f)(2).  If those exhibits have been lost or destroyed, the trial court shall determine whether those exhibits are necessary to the appeal's resolution and whether the exhibits can be replaced either by the agreement of the parties or the trial court determines that a copy is reasonably certain to accurately duplicate any of the original exhibits.  Tex. R. App. P. 34.6(f)(3, 4).  Further, the trial court shall also determine whether the parties agree that exhibits contained in the reconstructed record are correct or determine whether the reconstructed exhibits are reasonably certain to accurately duplicate the original exhibits.

            We abate this appeal to the trial court for a hearing:

(1)   to determine whether, without Lewis's fault, a significant exhibit or exhibits have been lost or destroyed; and

(2)   if the exhibit(s) were lost or destroyed, whether the exhibits are necessary to the appeal's resolution;

(3)   if the exhibit(s) were lost or destroyed, whether the lost or destroyed exhibit(s) 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(s) accurately duplicates the original exhibit; and

(4)   whether or not the parties agree that the reconstructed reporter's record filed with this Court contains the correct exhibits, and if not, whether the exhibits contained in the reconstructed reporter's record as filed with this Court are reasonably certain to accurately duplicate the original exhibits.

            Therefore, this appeal is abated for a period of thirty (30) days for the trial court to determine the issues identified above.  The trial court must conduct the required hearing within twenty-one (21) days of this Order.  This hearing shall be attended by a certified court reporter, and that reporter shall prepare a transcription of such hearing and file that transcription as a supplemental reporter's record in this appeal.

            The trial court shall prepare written findings of fact and conclusions of law with regard to the issues identified in this abatement order.  The district clerk shall prepare a supplemental clerk's record containing such findings of fact and conclusions of law as well as any pleadings, motions, responses, or objections filed with regard to this matter and any orders signed by the trial court.

            The district clerk and the court reporter shall file their supplemental records with the Clerk of this Court within thirty (30) days after the date of this Order.  If the trial court determines that additional time is required to resolve the issues identified, the trial court (or a party at the trial court's direction) shall file a written request for additional time explaining the reason(s) and the diligence that has been exercised in attempting to comply with the thirty (30) day deadline established by this Order.

            Additionally, Lewis has filed a motion seeking submission of this cause.  However, due to the abatement of this proceeding, we will deny his motion without prejudice at this time.

PER CURIAM

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Appeal abated

Order issued and filed May 4, 2011

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