Manuel Martinez III v. the State of Texas

Opinion

NUMBER 13-22-00113-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MANUEL MARTINEZ III, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 93rd District Court of Hidalgo County, Texas.

ORDER OF ABATEMENT

Before Justices Longoria, Hinojosa, and Silva Order Per Curiam

This appeal is before the Court on the State’s motion to abate this appeal.

According to the motion, the State discovered that the presentence investigation report

(PSI) was not included in the appellate record, and the State requires that document in

order to complete its brief in this matter. The State requests that we “abate the appeal for

the purpose of allowing the trial court to unseal the PSI for purposes of including said PSI

in the appellate record.” We abate this appeal and remand the cause to the trial court. The trial court shall

cause a hearing to be held to determine: (1) if the PSI was part of the trial court’s record;

(2) whether it should be submitted as part of the clerk’s record or reporter’s record in this

appeal; and (3) if any part of the reporter’s record is missing, lost, destroyed, or otherwise

inaccessible. See TEX. R. APP. P. 34.5(c), (d); id. R. 34.6(d), (e), (f). We note that this

abatement should be used for the purpose of correcting and completing the appellate

record in this case and should not be construed as to allow for the creation of a new trial

court record. See, e.g., Williams v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996);

see also In re J.R., No. 07-18-00240-CV, 2018 WL 7488914, at *2 (Tex. App.—Amarillo

Sept. 26, 2018, no pet.) (mem. op.) (collecting cases); Gerdes v. Marion State Bank, 774

S.W.2d 63, 65–66 (Tex. App.—San Antonio 1989, writ denied).

The trial court shall determine what steps are necessary to ensure the prompt

preparation of any supplemental records and shall enter any orders required to avoid

further delay and to preserve the parties’ rights. The trial court shall cause its findings,

together with any orders it may enter, to be included in a supplemental clerk’s record.

Furthermore, the trial court shall cause a supplemental reporter’s record of any

proceedings to be prepared. The supplemental clerk’s record and supplemental reporter’s

record shall be filed with the Clerk of this Court on or before the expiration of thirty days

from the date of this order.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 28th day of October, 2022.