the Estate of Max D. Hopper

Opinion

Order entered June 12, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01317-CV

THE ESTATE OF MAX D. HOPPER, DECEASED

On Appeal from the Probate Court No. 1 Dallas County, Texas Trial Court Cause No. PR-11-03238-1

ORDER On May 1, 2019, on the parties’ agreed motion stating the reporter’s record was deficient,

we struck the record that had been filed April 16, 2019 and ordered court reporter Jackie Galindo

to file “a corrected reporter’s record that includes (1) a transcript of the trial, including a

transcript of all video and audio clips played at trial; (2) a transcript of all pre-trial and post-trial

hearings; (3) the pre-admitted trial exhibits; and, (4) the supplemental exhibits consisting of the

transcripts of the video testimony presented to the jury.” Ms. Galindo filed a forty-five-volume

record on May 31, 2019 and a twenty-five volume supplemental record, along with an “affidavit

of compliance,” on June 3, 2019. On June 6, 2019, appellant filed a letter asserting the record is

still deficient. Specifically, appellant asserts the record does not include a transcript of all video

and audio clips played at trial, the supplemental exhibits consisting of the transcripts of the video testimony presented to the jury,1 and, the testimony and evidence presented to the jury on

September 21, 2017.

Texas Rule of Appellate Procedure 34.6 provides procedures for addressing concerns

with the reporter’s record. See TEX. R. APP. P. 34.6. Pursuant to that rule, we ORDER the trial

court to conduct a hearing, no later than July 12, 2019, to determine if the record is incomplete.

If the trial court determines the record is incomplete, the court should next determine whether the

omitted portion has been lost or destroyed. If the omitted portion has not been lost or destroyed,

the court should determine why that portion is not included in the record. If the omitted portion

has been lost or destroyed, the court should determine what role, if any, the parties may have had

in that portion of the record being lost or destroyed, whether the portion that has been lost or

destroyed is necessary to the appeal’s resolution, and whether the portion that has been lost or

destroyed can be replaced. The trial court shall make its findings in writing and have them filed

in a supplemental clerk’s record no later than July 22, 2019. A supplemental reporter’s record of

the hearing shall also be filed no later than July 22, 2019.

We DIRECT the Clerk of the Court to send a copy of this order to the Honorable Brenda

Hull Thompson, Presiding Judge of Dallas County Probate Court No. 1; Dallas County Clerk

John F. Warren; Ms. Galindo; and, the parties.

We ABATE the appeal to allow the trial court an opportunity to conduct the hearing.

The appeal will be reinstated no later than July 24, 2019.

/s/ KEN MOLBERG JUSTICE

1 A second supplemental reporter’s record was filed June 10, 2019 containing what appears to be the transcripts of the video testimony presented to the jury.