                                    NO. 07-05-0368-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                       JULY 28, 2006

                           ______________________________

                            JUAN M. PACHECO, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2005-409332; HONORABLE JIM BOB DARNELL, JUDGE
                       _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                             ON ABATEMENT AND REMAND


       Appellant appeals a conviction by a jury of the felony offense of driving while

intoxicated, enhanced, and sentenced to 40 years confinement in the Texas Department

of Criminal Justice, Institutional Division. Following his motion for new trial, appellant gave

notice of appeal and requested a record.


       Appellant has filed a motion with this court indicating that exhibits admitted into

evidence at trial were missing from the record. Counsel for appellant cannot complete
appellant’s brief without reviewing the missing exhibits.     The court reporter has been

notified by counsel for appellant and has indicated that he is unable to locate the exhibits.1


       Because the missing exhibits may be significant for disposition of this appeal, a

question we do not decide at this time, and because pursuant to Rule 34.6(f)(2) of the

Texas Rules of Appellate Procedure appellant may be entitled to a new trial if the exhibits

have been lost or destroyed without his fault, we now abate this appeal and remand this

cause to the 140th District Court of Lubbock County. Upon remand, the trial court shall

immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to

determine the following:


       (1)    whether exhibits admitted into evidence remain lost or misplaced or
              have been destroyed, and if so, then
       (2)    whether their loss, misplacement or destruction was attributable to
              appellant.


The trial court shall cause the hearing to be transcribed and shall make findings of fact to

be included in a supplemental clerk’s record.         Finally, the trial court shall file the

supplemental clerk’s record and the supplemental reporter’s record with the Clerk of this

Court by Monday, August 28, 2006.


       It is so ordered.
                                                         Per Curiam


Do not publish.




       1
        Under Rule 13.1 of the Texas Rules of Appellate Procedure, the court reporter is
required to file all exhibits admitted into evidence with the clerk of the court.

                                              2
