Jennifer Foley v. State

Opinion

Order entered March 27, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01268-CR

JENNIFER FOLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 26th Judicial District Court Williamson County, Texas Trial Court Cause No. 14-0094-K26

ORDER Before the Court is appellant’s March 26, 2019 motion for abatement. On February 11,

2019, a supplemental clerk’s record was filed containing the trial court’s order finding appellant

indigent and ordering the appellate record furnished without cost. On February 14, 2019, we

ordered Official Court Reporter Cindy Kocher to file the complete reporter’s record in this

appeal by March 7, 2019. When the reporter’s record was not filed, on March 22, 2019 we

ordered Ms. Kocher to file the reporter’s record by April 1, 2019. By letter dated March 26,

2019, Ms. Kocher notified the Court that the reporter’s record has not been filed because of a

dispute over missing or lost exhibits.

In her motion, appellant reports that a visiting court reporter, Brenna Short, has misplaced

exhibits admitted into evidence, the exhibits cannot be located, and the parties have been unable to agree upon replacement copies for the exhibits. Appellant requests an abatement so that the

trial court can conduct a hearing to determine whether the missing exhibits can be replaced with

duplicate copies.

We GRANT appellant’s motion for abatement. We ORDER the trial court to

determine whether the exhibits introduced and admitted into evidence before the trial court have

been lost or destroyed. If the trial court determines that the exhibits have been lost or destroyed,

the trial court shall determine whether the exhibits can be reconstructed and replaced by

agreement of the parties. If the parties cannot agree, the trial court is directed to determine what

constitutes an accurate copy of the exhibits and order that the exhibits be included in the

complete reporter’s record.

In the event that the trial court determines that the exhibits are lost and cannot be

reconstructed by agreement of the parties or by the trial court determining what constitutes an

accurate copy of the exhibits, the trial court shall make findings of fact regarding (1) whether

appellant timely requested a reporter’s record; (2) if without appellant’s fault, significant exhibits

have been lost or destroyed; and (3) whether the exhibits are necessary to the appeal’s resolution.

We ORDER the trial court to transmit to this Court, within THIRTY DAYS of the date

of this order, a record containing its written findings of fact, any supporting documentation, and,

if applicable, the exhibits it has determined are accurate copies of the exhibits introduced and

admitted at trial. A new deadline for the filing of the reporter’s record will be established upon

reinstatement of the appeal.

We DIRECT the Clerk to send copies of this order to the Honorable Donna King,

Presiding Judge, 26th Judicial District Court; court reporter Cindy Kocher; and to counsel for the

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

shall be reinstated when the findings are received or at such other time as the Court deems

appropriate.

/s/ LANA MYERS JUSTICE