                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00101-CR



            DAVID RAY PENNY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 8th District Court
               Hopkins County, Texas
               Trial Court No. 1323669




      Before Morriss, C.J., Moseley and Burgess, JJ.
                                            ORDER

       David Ray Penny was convicted by a Hopkins County jury of continuous sexual abuse of

a child and was sentenced to life imprisonment. Penny raises a single point of error, which may

require a harm analysis, for which analysis we must review the entire record. The record

includes what is portrayed as a video-recording of an interview of the complainant conducted at

the Child Advocacy Center. It is obvious, from the use of five different computers during trial to

attempt to play the video and audio components of the recording, that the recording was not

made using a conventional recording system. The trial court eventually found a computer that

would fully play the video. This Court has not been so lucky. We have used a number of video-

playing programs as well as some other programs that are designed to open a wide range of filed,

but without success. Although we have been able to play the audio track, we have not managed

to display any video component of the recording in our possession.

       Under Rule 34.6(f)(3) of the Texas Rules of Appellate Procedure, if an exhibit is not

available through no fault of appellant, we are required to reverse and order a new trial.

              (f)     Reporter’s Record Lost or Destroyed. An appellant is entitled to a
       new trial under the following circumstances:

                       (1) if the appellant has timely requested a reporter’s record;

                       (2) if, without the appellant’s fault, a significant exhibit or a
       significant portion of the court reporter’s notes and records has been lost or
       destroyed or--if the proceedings were electronically recorded--a significant
       portion of the recording has been lost or destroyed or is inaudible;

                       (3) if the lost, destroyed, or inaudible portion of the reporter’s
       record, or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and




                                                 2
                       (4) if the lost, destroyed or inaudible portion of the reporter’s
        record cannot be replaced by agreement of the parties, or the lost or destroyed
        exhibit cannot be replaced either by agreement of the parties or with a copy
        determined by the trial court to accurately duplicate with reasonable certainty the
        original exhibit.

TEX. R. APP. P. 34.6(f)(3). In this case, State’s Exhibit One is only partially usable; its video

component is effectively lost or destroyed.

        To attempt to correct this loss or destruction, we abate the appeal to the trial court. The

trial court should first determine whether the parties can replace the lost or nonfunctional portion

of the exhibit by agreement of the parties. If they cannot agree, the trial court must determine

whether a fully functional video recording of the interview purportedly on the exhibit can be

provided that “duplicates with reasonable certainty the original exhibit.”             TEX. R. APP.

P. 34.6(f)(4).

        These matters shall be determined at a hearing, which shall occur within twenty-one days

of the date of this order. The trial court’s findings shall be entered into the record of this case

and presented to this Court in the form of a supplemental clerk’s record within fifteen days of the

date of the hearing. The reporter’s record of the hearing shall also be filed in the form of a

supplemental reporter’s record within fifteen days of the date of the hearing, along with a fully

functional audio/video recording intended to be on the exhibit, should one be available.

        All appellate timetables are stayed and will resume on our receipt of the supplemental

clerk’s and reporter’s records. The submission date of the case is likewise stayed, and a new

submission date will be set on the return of this case to this Court’s jurisdiction.




                                                  3
      IT IS SO ORDERED.

                              BY THE COURT

Date: January 28, 2015




                          4
