Dennis Davis v. State

• Court: Court of Appeals of Texas
• Decided: January 29, 2010
• Docket: 03-09-00289-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00615-CV

Jaime Cortez, Appellant

v.

Mann Bracken, LLP; and Travelers Casualty and Surety Company of America, Appellees

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO. C-1-CV-09-001395, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

MEMORANDUM OPINION

PER CURIAM

Appellant Jaime Cortez has filed notice of appeal from the trial court’s judgment on

June 24, 2009, awarding attorney’s fees to Appellees Mann Bracken, LLP, and Travelers Casualty

and Surety Company of America. The clerk of this Court received and filed the trial court clerk’s

record on November 18, 2009. The court reporter tendered the reporter’s record to the clerk of this

Court for filing on January 5, 2010, including a transcript of the hearing and copies of exhibits from

that hearing that the court reporter obtained from the appellees. The court reporter’s certification

represents that the complete reporter’s record consists of the transcript of the hearing on appellees’

motion for attorney’s fees and costs held before the trial court on June 24, 2009, and the exhibits

admitted into evidence at that hearing. However, the court reporter and the trial court clerk have

informed this Court that, after a diligent search, the clerk’s office has been unable to locate the original exhibits that were received into evidence at the June 24th hearing and filed of record in the

trial court on June 25, 2009. As a result, this Court is unable to file the reporter’s record as

tendered.1 See Tex. R. App. P. 34.6(a).

Accordingly, we abate this appeal and remand this cause to the trial court for further

proceedings. See Tex. R. App. P. 34.6(f)(4). Upon remand, the trial court is directed to conduct

further proceedings, including a hearing if necessary, to determine if the lost exhibits can be replaced

either by agreement of the parties or with copies that the trial court determines with reasonable

certainty to be accurate duplicates of the original exhibits. See id. The trial court is thus directed

to: (1) conduct any necessary hearings; (2) order the court reporter to file a corrected reporter’s

record of the trial proceedings, including copies of any exhibits admitted into evidence, to the extent

correction is necessary; (3) make and file appropriate findings of fact and conclusions of law to be

included in a supplemental clerk’s record; and (4) cause any hearing to be transcribed and included

in a supplemental reporter’s record. In the absence of a request for extension of time from the trial

court, the corrected reporter’s record of the June 24, 2009, hearing on appellees’ motion for

attorney’s fees, the supplemental clerk’s record, and supplemental reporter’s record of the hearing

and proceedings pursuant to this order, and any additional records, including any orders, findings,

and conclusions, shall be sent to the clerk of this Court no later than February 26, 2010. See Tex.

R. App. P. 35.3(c).

1 On January 5, 2010, this Court filed the transcript of the June 24, 2009, hearing as a partial reporter’s record.

2 Before Justices Patterson, Puryear and Henson

Abated

Filed: January 29, 2010