Julia F. McMurrey v. The State of Texas--Appeal from County Court at Law No 3 of Smith County

NO. 12-05-00149-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JULIA F. MCMURREY, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW #3

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Appellant, Julia F. McMurrey, and the State have filed a joint motion to remand this cause for a new trial. In their motion, the parties state that certain trial exhibits are missing, lost, or destroyed and that certain others which are available cannot be determined, with certainty, to have been introduced into evidence. The parties further state that a number of Appellant s complaints on appeal relate to the admissibility of the State s exhibits and therefore the exhibits are necessary to the resolution of this appeal. Finally, the parties state that the exhibits cannot be replaced by agreement or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit. See Tex. R. App. P. 34.6(f)(3).

Texas Rule of Appellate Procedure 34.6(f) prescribes the circumstances under which a defendant can obtain a new trial due to an incomplete record:

(1) if the appellant has timely requested a reporter s record;

(2) if, without the appellant s fault, a significant exhibit or a significant portion of the court reporter s notes and records has been lost or destroyed or if the proceedings were electronically recorded a significant portion of the recording has been lost or destroyed or is inaudible;

(3) if the lost, destroyed or inaudible portion of the reporter s record, or the lost or destroyed exhibit, is necessary to the appeal s resolution; and

(4) if the lost, destroyed or inaudible portion of the reporter s record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.

Tex. R. App. P. 34.6(f). Based upon our review of the parties motion and the reporter s record from a prior hearing relating to the status of the subject exhibits, we conclude that Appellant is entitled to a new trial. See id. Accordingly, the parties motion is granted, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 21, 2006..

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)