Vernon Ray McCullough v. State

Opinion

Order entered September 24, 2018

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00421-CR

GEVAN KEITH LORING, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F17-55487-N

ORDER Before the Court is appellant’s September 19, 2018 motion for abatement and to hold the

current briefing schedule in abeyance. The reporter’s record filed on August 3, 2018 does not

contain a copy of a body cam video admitted into evidence as State’s Exhibit #1. On August 27,

2018, the Court ordered the court reporter to file a true and correct playable copy of State’s

Exhibit #1. The Court vacated its order after receiving a letter from the court reporter stating that

she was “not able to file State’s Exhibit No. 1 because there is nothing to copy. The DVR that

was admitted into evidence is empty. There is no file on it.”

We GRANT appellant’s motion for abatement. We ORDER the trial court to determine

whether State’s Exhibit #1 has been lost or destroyed. If the trial court determines that State’s

Exhibit #1 has been lost or destroyed, the trial court shall determine whether State’s Exhibit #1 can be reconstructed and replaced by agreement of the parties. If the parties cannot agree, the

trial court is directed to determine what constitutes an accurate copy of State’s Exhibit #1 and

order that the exhibit be included in a supplemental record.

In the event that the trial court determines that State’s Exhibit #1 is lost and cannot be

reconstructed by agreement of the parties or by the trial court determining what constitutes an

accurate copy of the exhibit, the trial court shall make findings of fact regarding (1) whether

appellant timely requested a reporter’s record; (2) if without appellant’s fault, a significant

exhibit has been lost or destroyed; and (3) whether State’s Exhibit #1 is necessary to the appeal’s

resolution.

We ORDER the trial court to transmit to this Court, within THIRTY DAYS of the

date of this order, a record containing its written findings of fact, any supporting

documentation, and, if applicable, the e x h i b i t it has determined i s a n accurate copy of

State’s Exhibit #1. A new deadline for the filing of appellant’s brief will be established upon

reinstatement of the appeal.

We DIRECT the Clerk to send copies of this order to the Honorable Hector Garza,

Presiding Judge, 195th Judicial District Court; court reporter Velma Loza; and to

counsel for the parties.

We ABATE the appeal to allow the trial court to comply with this order. The

appeal shall be reinstated when the findings are received or at such other time as the Court

deems appropriate.

/s/ CRAIG STODDART JUSTICE