Jennifer Foley v. State

Opinion

Order entered May 1, 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 District Court Williamson County, Texas Trial Court Cause No. 14-0094-K26

ORDER We REINSTATE this appeal.

The reporter’s record in this appeal was initially due November 18, 2018. To date, the

reporter’s record has not been filed. In late March 2019, appellant filed a motion asking the

Court to abate for a hearing on trial exhibits that were purportedly lost or destroyed. On March

27, 2019, we granted the motion and abated this appeal. We ordered that the trial court’s

findings be filed by April 26, 2019. On April 29, 2019, appellant filed a motion seeking an

extension of time for the trial court’s findings.

We GRANT appellant’s motion. 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 once the trial court’s

findings have been received.

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