Henry Munoz v. State

Opinion

Order entered December 23, 2020

In the Court of Appeals Fifth District of Texas at Dallas No. 05-20-00192-CR No. 05-20-00194-CR

HENRY MUNOZ, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause No. 2-19-0773 & 2-19-0774

ORDER

Before the Court is appellant’s December 11, 2020 motion to abate the

appeal. In the motion, appellant notes that the clerk’s record does not contain the

trial court’s order on “Defendant’s Motion to Set Aside Indictment for Failure to

Afford Constitutional Right to Speedy Trial.” Appellant states the district clerk has

been unable to locate the order and asks us to assist in resolving the matter because

the State was of the opinion that the trial court lacked plenary power to correct the

record. Cf. TEX. R. CIV. P. 329b(f). The district clerk informs us by November 17, 2020 letter that, “[a]fter an extensive amount of time and resources from our office

physically looking through each file,” the office was unable to find the order.

We GRANT the motion.

We ORDER the trial court to determine what constitutes an accurate copy of

the missing order and to order it included in a supplemental clerk’s record

WITHIN THIRTY DAYS of the date of this order. We ORDER the parties to

promptly assist the trial court with this matter in any way the trial court desires.

The parties agree that the trial court denied the motion and that the trial court likely

signed the original order denying the motion on December 20, 2019, when other

motions heard during a pretrial conference the day before were signed. See TEX. R.

APP. P. 34.5(e).

We ORDER the Rockwall County District Clerk to transmit to this Court,

WITHIN THIRTY-FIVE DAYS of the date of this order, a supplemental clerk’s

record containing either (1) the original order denying “Defendant’s Motion to Set

Aside Indictment for Failure to Afford Constitutional Right to Speedy Trial” or (2)

the accurate copy of that order, as described above and provided for by Texas Rule

of Appellate Procedure 34.5(e).

We DIRECT the Clerk to send copies of this order to the Honorable Brett

Hall, Presiding Judge, 382nd Judicial District Court; to Rockwall County District

Clerk Lea Carlson; and to counsel for all parties. We ABATE the appeal to allow the trial court and district clerk to comply

with this order. The appeal shall be reinstated when the Court receives the

supplemental clerk’s record with the specified order or at such other time as the

Court deems appropriate.

/s/ CORY L. CARLYLE JUSTICE