Summary
The First Court of Appeals of Texas abates the criminal appeal and remands the case to the trial court because State’s Exhibit 1 could not be opened or viewed. The trial court is directed to determine whether the exhibit was lost or destroyed, whether it is necessary to resolving the appeal, and whether it can be replaced, and to issue written findings and recommendations.
Topics
Practice areas
Questions Presented
- Whether the appeal should be abated and remanded for the trial court to determine whether the appellate record or State's Exhibit 1 was lost or destroyed, whether appellant was without fault, whether the exhibit was necessary to resolution of the appeal, and whether it could be replaced.
Holdings
- When an exhibit relied on by the trial court and the parties cannot be opened or viewed, the appellate court should abate the appeal and remand for the trial court to make the findings required to determine whether the exhibit is lost or destroyed, necessary to resolution of the appeal, and replaceable under Texas Rule of Appellate Procedure 34.6(f).
Key quotations
“Accordingly, the appeal is abated and the case remanded to the trial court.”
Factual background
State's Exhibit 1 was presented to and relied on by the trial court and was also relied on by the parties in their appellate briefing. The appellate court and the Comal County District Clerk's Office were unable to open or view the original DVD, and neither the State nor appellant's counsel had a viewable copy. Because the exhibit's availability and accuracy could affect resolution of the appeal, the appellate court could not complete its review.
Procedural history
The appeal arose from the 207th District Court of Comal County, Texas, trial court cause number CR2018-430. During appellate review, the court determined that State's Exhibit 1 was not viewable and that neither the district clerk, the State, nor appellant's counsel had a viewable copy. The court abated the appeal and remanded the case to the trial court for a hearing and written findings concerning the loss, necessity, and possible replacement of the exhibit and related record materials.
Remand instructions
The appeal was abated and remanded to the trial court. Within 30 days, the trial court was directed to determine whether appellant timely requested a reporter's record; whether exhibits, including State's Exhibit 1, were lost or destroyed without appellant's fault; whether any lost or destroyed exhibit was necessary to resolution of the appeal; whether the parties could replace the exhibits by agreement; and, if not, whether copies accurately duplicating the originals with reasonable certainty could be used. The trial court was also directed to make any other appropriate findings and recommendations and issue written findings of fact, conclusions of law, and recommendations. The district clerk and court reporter were directed to file supplemental records within 45 days, and any located or replaced exhibits were to be filed in a supplemental exhibit volume within 45 days.