Travis Kirchner v. State

• Court: Court of Appeals of Texas
• Decided: February 27, 2014
• Docket: 08-11-00368-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

TRAVIS KIRCHNER, § No. 08-11-00368-CR Appellant, § Appeal from the v. § 41st District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC#20100D00899) §

O R D E R

The Appellant has raised two issues challenging a supplemental limiting instruction in the

punishment charge given to the jury during their punishment deliberations. We previously

requested that the trial court clerk file a supplemental clerk’s record containing the supplemental

instruction but the clerk has indicated that the instruction is not contained in the trial court’s file.

On its own motion, the Court has determined that it is necessary to ABATE the appeal in order for

the trial court time to conduct a hearing to determine: (1) if the supplemental limiting instruction

was designated for inclusion in the clerk’s record pursuant to TEX.R.APP.P. 34.5(a); (2) if the

supplemental limiting instruction in question was actually given to the jury; (3) whether the

supplemental limiting instruction discussed by the trial court and the parties on the record is the

same as the instruction actually given to the jury; and (4) whether the supplemental limiting instruction is lost or destroyed. If the trial court makes a determination that the supplemental

limiting instruction was designated for inclusion in accordance with TEX.R.APP.P. 34.5(a) and the

instruction in question is lost or destroyed, the trial court must make a determination of what

constitutes an accurate copy of the missing item and order it to be included in the clerk’s record or

a supplement if possible. See TEX.R.APP.P. 34.5(e).

Therefore, we hereby ORDER the trial court to conduct a hearing on or before March 31,

2014. After conducting the hearing, the trial court shall forward its findings and any orders

entered to the District Clerk of El Paso County, Texas, on or before April 15, 2014. The District

Clerk shall prepare and forward a supplemental clerk’s record containing the trial court’s findings

and orders on or before April 30, 2014. The court reporter transcribing the hearing shall prepare,

certify, and file the transcript of the hearing with this Court on or before April 30, 2014.

IT IS SO ORDERED this 27th day of February, 2014.

PER CURIAM

Before McClure, C.J., Rodriguez, J., and Larsen, J. (Senior Judge) Larsen, J. (Senior Judge)(Sitting by Assignment)