Fitzgerald, Kenneth v. State

Opinion

Order entered October , 2012

In The Court of appeatti liftb 3Biotritt of Texass at 3Battati 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 has received appellant's brief. In his first issue, appellant complains of the

loss of the record from the original plea hearing he received a probated sentence. In the brief,

appellant references a letter from court reporter Marissa Garza that states Don Hardy recorded

the May 28, 1993 plea hearing, Mr. Hardy has died, and she cannot locate the record.

Appellant's counsel also filed a letter stating he could not agree to a substituted record. This

Court, however, has not ordered the trial court to make findings, required by Texas Rule of

Appellate Procedure 34.6(f) in regards to the missing record.

Accordingly, pursuant to rule 34.6(f), we ORDER the trial court to make findings

regarding the following: • Whether appellant timely requested preparation of the record from the May 28, 1993 hearing.

• Whether the notes of the notes of the hearing taken by Mr. Hardy have been lost or destroyed or whether they can be retrieved and transcribed.

• If the notes have been lost or destroyed, whether appellant is at fault for the loss or destruction of the record.

• Whether the partics can agree on a substituted record.

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

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

this order.

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

be reinstated thirty days from the date of the order or when the findings are received.

DAVID L. BRIDG 4.----------' JUSTICE