


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-09-00308-CR
 
Broderick Keith Lewis,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 
 

From the 12th District
Court
Walker County, Texas
Trial Court No. 23,958
 

ORDER





 
This appeal has become stalled.  
 
On November 3, 2010, the State filed a
motion to supplement the reporter’s record with State’s exhibit 17, a BB gun. 
After unsuccessfully attempting to encourage location of other previously lost
exhibits, we granted the State’s motion to supplement the reporter’s record by
letter dated February 1, 2011.  The supplemental reporter’s record was due 14
days from the date of the order, that being February 15, 2011.  We also
directed the trial court clerk to send us the original of State’s Exhibit 17,
the BB gun, after the reporter had prepared the supplemental record.  We have
received neither the supplemental reporter’s record nor the original exhibit.
We contacted the reporter and the trial
court clerk and learned that the State has possession of the BB gun.  We also learned
that the trial court clerk has been unable to cause the State to turn the BB
gun over to her so that she and the reporter could comply with our order of
February 1, 2011.  
Original exhibits are kept by the trial
court clerk but upon the reporter’s request, are given to the reporter for use
in preparing the reporter’s record.  See Tex. R. App. P. 34.6(g)(1).  After copying the exhibits for
inclusion in the reporter’s record, the reporter must return the exhibits to
the trial court clerk.  Id.  If a person other than the trial court
clerk possesses an original exhibit, we may order that person to deliver the
exhibit to the trial court clerk.  Id.  Further, we may direct the trial
court clerk to deliver to this Court any original exhibit.  Tex. R. App. P. 34.6(g)(2). 
Accordingly, the State is ORDERED
to deliver State’s Exhibit 17, the BB gun, and any other original exhibit in
the possession of the District Attorney’s Office pertaining to the underlying
trial in this appeal, whether admitted into evidence or simply identified or
offered but not admitted, to the District Clerk of Walker County, Robyn
Flowers, and simultaneously notify this Court that the exhibit or exhibits
were delivered, within 14 days from the date of this order.  The failure
of the State to comply with this Order will result in the abatement of this
appeal, without further notice, to the trial court to determine what exhibits
are in the possession of the State and a date certain when the State’s Exhibit
17 or other exhibits will be delivered to the District Clerk.
Further, the District Clerk of Walker
County, Robyn Flowers, is ORDERED to deliver, within 7 days of receipt, the
exhibit or exhibits to Kaetheryne Kyriell or Denise MacKay, the official
reporters of the 12th Judicial District Court to copy for inclusion in a
supplemental reporter’s record.  The reporter must return the exhibit or
exhibits to the District Clerk within 7 days of the receipt of the
exhibit or exhibits.  The District Clerk is further ORDERED to send State’s
Exhibit 17 to this Court within 14 days from the date the exhibit is
returned to the District Clerk.
The supplemental reporter’s record
containing a copy of State’s Exhibit 17 and any other exhibit delivered to the
District Clerk by the State is ORDERED to be filed with this Court within 14
days of the reporter’s receipt of the exhibit or exhibits.
 
                                                                        PER
CURIAM
 
Before
Chief Justice Gray,
            Justice
Davis, and
            Justice
Scoggins
Order
issued and filed March 23, 2011
Do
not publish

