           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1115-14

                                THE STATE OF TEXAS

                                             v.

                          ARMANDO PRIETO, JR., Appellee




            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE EIGHTH COURT OF APPEALS
                            EL PASO COUNTY



       Per curiam.

                                      OPINION


       Appellant was charged with possession of a controlled substance and the trial court

granted his motion to suppress. The State appealed. The Court of Appeals affirmed, noting

that the State’s argument depended on the police officer’s videotape and that evidence was

not admitted at the suppression hearing and was not in the appellate record. State v. Prieto,
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No. 08-12-00268-CR, 2014 Tex. App. LEXIS 5869 (Tex. App.—El Paso May 30, 2014) (not

designated for publication).

       The State has filed a petition for discretionary review of this decision, arguing that the

videotape should be considered even though not formally admitted because it is in the

appellate record and it was treated as though it had been admitted at the suppression hearing.

Cornish v. State, 848 S.W.2d 144 (Tex. Crim. App. 1993). We agree.

       The parties and the court treated the videotape as admitted at the initial suppression

hearing. Additionally, at the second hearing, the State proffered the tape, and the trial court

instructed the court reporter to “put it in there as something that’s in there that’s not been

admitted.” The court reporter did so, showing State’s Exhibit 1 as the “DVD (Filed with the

Court Reporter) Offered but not Admitted.” The court reporter properly did not include the

original DVD in the appellate record. See Tex. R. App. P. 34.6(g)(1) (“ . . . court reporter

must return the original exhibits to the clerk after copying them for inclusion in the reporter’s

record”). It was the appellate court’s duty, then, to request the DVD from the trial court

clerk. See Tex. R. App. P. 34.6(g)(2) (“the appellate court may direct the trial court clerk to

send it any original exhibit”).

       The Court of Appeals erred to refuse to request and consider the videotape in its

analysis. Accordingly, we grant the State’s petition for discretionary review, vacate the

judgment of the Court of Appeals, and remand this case to the Court of Appeals for

proceedings consistent with this opinion.
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DATE DELIVERED:   November 19, 2014

DO NOT PUBLISH
