David S. Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: August 1, 2018
• Docket: 05-18-00172-CR
• Status: Published

Opinion

Order entered August 1, 2018

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00172-CR

DAVID S. HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F18-00047-N

ORDER Before the Court is appellant’s July 30, 2018 motion to abate the appeal. In the motion,

appellant asks for a hearing regarding the State’s Exhibit 8, a “body cam [video] of the victim’s

interview” by police at the hospital on the date of the offense. Appellant contends he has been

unable to play any video from State’s Exhibit 8 and requests a hearing to determine whether the

video exists, whether the video is an accurate depiction of what was offered and admitted at trial,

or whether the video has been lost or destroyed through no fault of his own.

The reporter’s record on file with this Court contains a CD labeled State’s Exhibit 8;

however, the contents of the CD cannot be opened or played. We GRANT appellant’s motion to the extent that we ORDER the trial court to hold a

hearing and to make findings of fact and recommendations regarding the following:

 Whether appellant timely requested a reporter’s record, including State’s Exhibit 8;

 Does a playable and accurate copy of State’s Exhibit 8 exist and where is it currently located;

 Has the playable, accurate copy of State’s Exhibit 8 been changed or altered in any way;

 Whether, without appellant’s fault, the State’s Exhibit 8 has been lost or destroyed;

 If the State’s Exhibit 8 is lost or destroyed, whether the lost or destroyed exhibit can be replaced by agreement of the parties or be replaced by a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit, and if so, the date by which the court reporter can file a supplemental reporter’s record containing the replacement copy;

 If the State’s Exhibit 8 has not been lost or destroyed, the date by which the court reporter can file a supplemental reporter’s record containing either the original State’s Exhibit 8 or a playable, accurate copy of State’s Exhibit 8.

We ORDER the trial court to transmit a record containing its written findings of fact, any

orders, and any supporting documentation to this Court within TWENTY DAYS of the date of

this order.

We DIRECT the Clerk to send copies of this order to the Honorable Hector Garza,

Presiding Judge, 195th Judicial District Court; Velma Lopez, official court reporter, 195th

Judicial District Court; and to counsel for all parties.

We ABATE this appeal to allow the trial court to comply with this order. The

appeal shall be reinstated in twenty days or when we receive the supplemental record

containing the trial court’s findings of fact, whichever occurs first.

/s/ LANA MYERS JUSTICE