Fitzgerald, Kenneth v. State

Opinion

Order entered December //, 2012

In The ourt o( [pptalg istria o( gtxas at allas

No. 05-12-00541-CR

KENNETH FITZGERALD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th District Court Dallas County, Texas Trial Court Cause No. F92-73565-Q

ORDER The Court REINSTATES the appeal.

On October 9, 2012, the Court ordered the trial court to make findings regarding the

availability of the reporter’s record form the May 28, 1993 plea hearing. We ADOPT the

findings that: (1) court reporter Don Hardy, who recorded the proceedings has not died; (2) Mr.

Hardy told Michael Casillas of the Dallas County District Attorney’s Office that he does not

have the notes and he left them at the courthouse; (3) a search was conducted for the notes with

the District Clerk’s Office, including at an off-site warehouse; (4) they were not able to locate

any steno notes from that time period; (5) the notes are lost; (6) appellant is not at fault for the

loss of the notes; and (7) the parties cannot agree on a substituted record. Appellant and the State have already filed briefs addressing the issue of the lost record.

Accordingly, we DIRECT the Clerk of this Court to set the appeal at ~ssue.

DAVID L. BRIDGES JUSTICE