Bernard Dale Kelly, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: August 7, 2013
• Docket: 06-13-00009-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-13-00009-CR

BERNARD DALE KELLY, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 196th District Court Hunt County, Texas Trial Court No. 27407

Before Morriss, C.J., Carter and Moseley, JJ. ORDER Bernard Dale Kelly, Jr., was convicted by a jury of aggravated assault with a deadly

weapon. Sentence was imposed on December 17, 2012, and appeal was timely filed. The

clerk’s record was filed April 12, 2013, and the reporter’s record (which appeared to be

complete) was filed May 31, 2013, thereby making appellant’s brief due July 1, 2013.

However, since that time, Kelly’s counsel has attempted at some length to determine if

there were additional hearings and to obtain records from those hearings. This Court has been

involved for some time in communication with the court reporter, Kelly Bryant, in attempting to

clarify matters and obtain records from the hearings. At one point, Bryant informed the Court

that a particular hearing was not conducted, but when asked to document that statement, she

reviewed her records and found that it had, in fact, occurred. Bryant has now informed us that

on one of the specific dates mentioned by counsel, January 23, 2012, she has nothing in her notes

or records concerning this case. However, counsel has provided information indicating that a

hearing was set, as reflected on the trial court’s docket sheet. Counsel also asked for a record

(again, based on the trial court’s docket) from a hearing that was held on September 19, 2012.

Our own review of the trial court’s docket shows proceedings conducted with notations

that Bryant was present as court reporter within the general range of dates specified by counsel

on January 23, 2012, April 4, 2012, April 18, 2012, and September 19, 2012.

The state of the record is confused.

We, therefore, grant Kelly’s motion and abate the case to the trial court to conduct an

evidentiary hearing to determine:

2 1. The date of each hearing conducted in this case, and the nature of each such

hearing;

2. The identity of the court reporter present for each such hearing;

3. Whether the docket is incomplete or inaccurate;

4. If the docket is incomplete or inaccurate, the trial court should so indicate,

through findings with sufficient detail to permit any additional records that may be available to

be properly requested by counsel. See TEX. R. APP. P 34.6;

5. Whether there were hearings from which no record can be made, and the reasons

therefor. See TEX. R. APP. P 34.6; and

6. The length of time necessary to prepare any additional reporter’s records and the

date by which same can be filed with this Court.

We also request that the trial court make any additional findings that it believes will be helpful to

this Court in this situation.

This hearing shall occur within twenty days of the date of this order.

The trial court’s findings, as set forth above, shall be entered into the record of the case

and presented to this Court in the form of a supplemental clerk’s record within fifteen days of the

date of the hearing. See TEX. R. APP. P. 38.8(b)(3). The reporter’s record of the hearing shall

also be filed in the form of a supplemental reporter’s record within fifteen days of the date of the

hearing. See id.

All appellate timetables are stayed and will resume on our receipt of the supplemental

records.

3 IT IS SO ORDERED.

BY THE COURT

Date: August 7, 2013