                            Fourth Court of Appeals
                                   San Antonio, Texas
                                         October 5, 2018

                                      No. 04-18-00002-CR

                                     Larry Donnell GIBBS,
                                           Appellant

                                                v.

                                     The STATE of Texas,
                                           Appellee

                  From the 49th Judicial District Court, Webb County, Texas
                           Trial Court No. 2015 CRR 001320 D-1
                         Honorable Jose A. Lopez, Judge Presiding


                                         ORDER
        On September 28, 2018, appellant filed a motion to supplement the reporter’s record. In
the motion, appellant contends the final volume of the reporter’s record consists of State’s
Exhibits 1, 30, 65A, 65B, and 80, which are video and audio files originally contained in five
compact discs. Appellant contends the court reporter converted these exhibits from five compact
discs to forty-two digital files that were filed with this court. According to appellant:

       It appears from the [trial] transcripts that not all files were shown to the jury and
       that some files are either missing or the numbering by Ms. [Cynthia] Lenz [the
       court reporter] is incorrect. [Appellant’s counsel] reached out to both Mr. Philip
       del Rio (Prosecutor) and Mr. Fred Trevino (Defense Attorney) but they were not
       able to assist appellant’s counsel with the identification of these exhibits.

       Appellate Counsel did not serve as trial counsel for appellant and is therefore
       unfamiliar with the proceedings at the trial level.

       Appellant will be raising issues involving these exhibits.

        Because the original five compact discs were not filed in this court, we are unable to
determine whether the reporter’s record currently contains all of State’s Exhibits 1, 30, 65A,
65B, and 80 and whether the forty-two parts of those exhibits are accurately labeled. The court
reporter filed “State’s Exhibit 1,” which contains digital files labeled “State’s Exhibit 1” and
“State’s Pretrial Exhibit 1” Parts 001 through 012. State’s Exhibits 65A and 65B contain digital
files labeled Parts 001 through 012, but neither exhibit contains a Part 008. We are also unable to
determine from the reporter’s record currently before us which parts of State’s Exhibits 1, 30,
65A, 65B, and 80 were shown to the jury at trial.

       Accordingly, pursuant to Texas Rule of Appellate Procedure 34.6(f), we ABATE this
appeal to the trial court and ORDER the trial court to conduct a hearing to answer the following
questions:

       (1) Whether State’s Exhibit 1 consists of the digital file labeled “State’s Exhibit
           1” and/or the files labeled “State’s Pretrial Exhibit 1” and subparts;

       (2) Whether Part 008 of State’s Exhibits 65A and 65B are missing and, if so,
           whether those parts have been lost or destroyed or can be added to the
           reporter’s record by supplementation;

       (3) Whether the reporter’s record contains all of State’s Exhibits 1, 30, 65A, 65B,
           and 80 and, if not, whether any parts of these exhibits have been lost or
           destroyed or can be added to the reporter’s record by supplementation;

       (4) Whether State’s Exhibits 1, 30, 65A, 65B, and 80 and their subparts are
           accurately labeled in the reporter’s record, consistent with their labeling at
           trial and on the five compact discs; and

       (5) Which parts of State’s Exhibits 1, 30, 65A, 65B, and 80 were shown to the
           jury at trial.

        The trial court may, in its discretion, receive evidence on these questions by sworn
affidavit from the court reporters who transcribed the trial proceedings, including Ms. Cynthia
Lenz. The trial court shall, however, order Mr. Fausto Sosa, Mr. Fred Trevino, and Mr. Philip del
Rio to be present at the hearing.

        The trial court is further ORDERED to file supplemental clerk’s and reporter’s records in
this court, within thirty days of the date of this order, which shall include: (1) a reporter’s record
of the hearing and copies of any documentary evidence admitted, and (2) written findings of fact
addressing the above enumerated questions. All appellate filing dates are ABATED pending
further orders from this court.



                                                      _________________________________
                                                      Sandee Bryan Marion, Chief Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 5th day of October, 2018.



                                                      ___________________________________
                                                      Keith E. Hottle
                                                      Clerk of Court
