                                  NO. 07-08-0119-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                     JUNE 30, 2008

                         ______________________________


                          PHILLIP W. MORRIS, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2005-410,322; HONORABLE CECIL PURYEAR,1 JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                             ABATEMENT AND REMAND


      Appellant, Phillip W. Morris, appeals his conviction and sentence of eight years

confinement for the offense of assault, family violence, repeat offense. The record before


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          Although the Hon. Cecil Puryear signed the judgment being appealed, the Hon.
Ron Champan (Ret.), presided over the guilt / innocence and punishment phases of the
trial, sitting by assignment. See Tex. Gov’t Code Ann. § 75.002(a)(3) (Vernon Supp.
2007).
us indicates that the guilt / innocence phase of the trial was conducted before a jury on

April 3 and 4, 2006, and the punishment phase was before the bench on May 8, 2006.

The court reporter, Lindi L. Reeves, has informed this Court, by affidavit, as follows:


       I, Lindi L. Reeves, Certified Shorthand Reporter in and for the State of Texas
       do hereby swear and testify to the following:
       I was the Court Reporter substituting for the 137th Judicial District Official,
       Becky Cleveland, in the above-named case [Cause No. 2005-410,322] on
       trial on April 16, 2006.
       Upon searching through all of my notes and diskettes and tapes, I am unable
       to locate said trial in any form or fashion. I have searched diligently to no
       avail and with regret, I am resolved that the record for April 16, 2006, The
       State of Texas vs. Phillip W. Morris, is lost.


(emphasis added).


       Notwithstanding the fact that the reporter’s affidavit indicates a trial date that does

not comport with the trial date indicated in the clerk’s record, this Court has not received

any portion of the reporter’s record of the guilt / innocence phase of the trial. Although

incorrectly denominated as a hearing conducted on the 8th day of May, 2007, this Court has

received a reporter’s record of the punishment proceedings held on May 8, 2006.

(emphasis added).


       According to Texas Rule of Appellate Procedure 34.6(f), an appellant is entitled to

a new trial if (1) the appellant has timely requested a reporter’s record, (2) without the

appellant’s fault, a significant portion of the court reporter’s notes and records have been

lost or destroyed, (3) the lost or destroyed portion of the record is necessary to the appeal’s

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resolution, and (4) the lost or destroyed portion of the record cannot be replaced by

agreement of the parties. Given Rule 34.6(f) and the court reporter’s statement that she

cannot locate the record, we abate the appeal and remand the cause to the trial court.


       On remand, the trial court shall schedule a hearing and notify all parties of their right

to attend same. At that hearing, the trial court shall receive evidence sufficient for it to

determine whether:


       (1)    Appellant desires to pursue the appeal,

       (2)    Appellant timely requested a reporter’s record,

       (3)    the proceedings were recorded stenographically or by other means,

       (4)    a significant portion of the recording has been lost or destroyed
              for reasons other than the fault of Appellant,

       (5)    the lost or destroyed portion of the record is necessary to the
              resolution of the appeal, and

       (6)    the parties cannot agree on a complete reporter’s record.


       It is further ordered that the trial court shall cause the aforementioned hearing to be

transcribed by the official court reporter and included in a supplemental reporter’s record.

So too is the trial court ordered to execute findings of fact and conclusions of law

addressing the six matters numerically itemized above and cause its findings and

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

cause the supplemental reporter’s record and supplemental clerk’s record to be filed with

the Clerk of this Court on or before August 29, 2008. Should additional time be needed

                                               3
for the trial court to comply with this order, an extension of time must be requested on or

before August 14, 2008.


       Also pending before this Court is Appellant’s Motion Requesting Extension of Time

to File Appellate Brief. Because Appellant’s brief is not due to be filed until after the

reporter’s record has been filed, said motion is rendered moot by this abatement.


       It is so ordered.


                                                        Per Curiam


Do not publish.




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