Melvin Celestine v. State

• Court: Court of Appeals of Texas
• Decided: May 29, 2013
• Docket: 05-12-01677-CR
• Status: Published

Opinion

Order entered May 29, 2013

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01677-CR

MELVIN CELESTINE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F08-61495-I

ORDER In his first issue on appeal, appellant contends that he is entitled to a new trial because the

record of the original plea hearing has either not been filed with this Court or has been lost or

destroyed. We note that there has been no finding from the trial court that the record of the

original plea hearing has been lost or destroyed, nor did appellant raise that issue in a motion

prior to filing his brief.

Accordingly, on the Court’s own motion, we ORDER the trial court to make findings

regarding whether the record can be supplemented with the record of the March 27, 2009

hearing. See TEX. R. APP. P. 34.6(f). Specifically, the trial court shall determine the following:

 Whether the March 27, 2009 plea hearing was recorded.  If the trial court determines the hearing was not recorded, the trial court shall determine whether the parties waived the recording of the hearing.

 If the hearing was recorded, the trial court shall determine the name and contact information of the court reporter who recorded the March 27, 2009 hearing.

 The trial court shall next determine whether the notes of the March 27, 2009 hearing are available and can be transcribed, and, if so, the date by which the record of the March 27, 2009 hearing can be filed with this Court.

 If the trial court determines that the notes of the March 27, 2009 hearing are not available or cannot be transcribed, the Court shall determine whether appellant is at fault for the loss or destruction of the notes and whether the parties can agree on a substituted record.

We ORDER the trial court to transmit a supplemental record containing its written

findings of fact, any orders, and any supporting documentation 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

shall be reinstated thirty days from the date of this order or when the findings are received,

whichever is earlier.

/s/ DAVID EVANS JUSTICE