Terry Ray McMillan v. State

• Court: Court of Appeals of Texas
• Decided: March 30, 2015
• Docket: 05-14-01419-CR
• Status: Published

Opinion

Order entered March 30, 2015

In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01419-CR

TERRY RAY MCMILLAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F05-50140-UR

ORDER Appellant’s case was tried in 2006. In 2014, the Texas Court of Criminal Appeals

granted appellant an out-of-time appeal. See Ex parte McMillan, No. WR-80,864-02 (Tex. Crim.

App. Sept. 17, 2004) (not designated for publication). The clerk’s record and a seven-volume

reporter’s record have been filed. The Court now has before it the March 26, 2015 letter from

court Anne Meredith saying that State’s Exhibit no. 23, a blown-up copy of a photograph, has

been destroyed, and that the exhibit was not copied. The reporter’s record reflects that State’s

Exhibit no. 23 is a blown-up copy of State’s Exhibit 21, which is included in the Exhibit volume

of the reporter’s record.

Nevertheless, pursuant to Texas Rule of Appellate Procedure 34.6(f), we ORDER the

trial court to make the following findings:  Whether appellant timely requested preparation of the reporter’s record;

 Whether the record can be supplemented with State’s Exhibit no. 23, the blown up copy of State’s Exhibit no. 21;

 If the record cannot be supplemented with State’s Exhibit no. 23, whether appellant is at fault for the loss or destruction of the exhibit; and

 Whether the parties can agree on a substituted record.

We ORDER the trial court to transmit a record containing its findings, any supporting

documentation, and any orders, to this Court within thirty days of the date of this order. In

making its findings, the trial court may take evidence from witnesses in person or by affidavit.

We DIRECT the Clerk to send copies of this order, by electronic transmission, to the

Honorable Jennifer Bennett, Presiding Judge, 265th Judicial District Court, and to counsel for all

parties.

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.

/s/ ADA BROWN JUSTICE