                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00074-CR
                           ____________________

                   ANTHONY JOSEPH KELLY, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________           ______________

                On Appeal from the County Court at Law No. 4
                        Montgomery County, Texas
                         Trial Cause No. 11-265675
________________________________________________________           _____________

                                     ORDER

      In this appeal Anthony Jason Kelly contends the State withheld exculpatory

information. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963). Incorporated into his Brady issue is a due process complaint that the trial

court abused its discretion by refusing to require the State to produce the written

statement of Trooper Jarad Gray for in camera inspection by the trial court. The

trial court’s failure to require the State to produce a copy of the statement under



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seal for inclusion in the appellate record prevents the proper presentation of the

case to the Court of Appeals. See Tex. R. App. P. 44.4(a)(1).

      It is, therefore, ORDERED that the appeal is abated and the case is

remanded to the trial court for the trial court to correct the error by directing the

State to submit a copy of the statement under seal for review on appeal. See Tex.

R. App. P. 44.4(b). A supplemental record containing a copy of the statement of

Trooper Jarad Gray shall be sealed and filed with the Clerk of the Court of Appeals

by June 17, 2013.

      ORDER ENTERED May 16, 2013.


                                                                PER CURIAM




Before Gaultney, Kreger, and Horton, JJ.




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