Order entered September 9, 2015




                                               In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                       No. 05-14-01350-CR

                            DONALD RAY MCKINNEY, Appellant

                                                 V.

                               THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F12-47067-Y

                                             ORDER
       The Court GRANTS appellant’s September 2, 2015 motion for supplementation of the

reporter’s record, for abatement of the appeal or, alternatively, for extension of the time to file

appellant’s brief. The Court grants relief as follows.

       The reporter’s record was filed in this appeal on June 4, 2015. In his motion, appellant

contends the record from a pretrial hearing conducted on July 28, 2014 is missing from the

reporter’s record. Appellant also challenges the accuracy of portions of volumes five and ten of

the reporter’s record filed. The record shows that court reporter Sharina A. Fowler prepared the

first thirty-four pages of volume five. After the trial court took a recess, court reporter Sharon

Hazlewood reported an additional fifty pages of volume five, restarting the page numbering with

page one. Approximately ten pages into the Hazlewood section of the copy of volume five filed
with the Clerk of the Court, the quality of the printed copy begins to deteriorate. Portions of

each printed page from pages forty-two to fifty of the Hazlewood section of volume five are

illegible. Additionally, in his motion, appellant alleges that line twenty-two of page twenty-

seven in volume ten of the reporter’s record states “He is now cancer free” when the portion of

the line should read “He is not cancer free.”

       In a prior motion to the Court, appellant’s counsel represented that he had “been told by

the former judge of Criminal District [Court] No. 7, the Honorable Mike Snipes, that Ms.

Hazlewood, the court reporter, is in a nursing home due to dire health problems which will keep

her from doing any meaningful work for the foreseeable future.” In the current motion, counsel

reports that he is “unaware of the current status of the health of the court reporter.”

       We ORDER the trial court to conduct a hearing and make findings of fact regarding the

accuracy and completeness of the reporter’s record filed in this case. The trial court shall first

determine whether a reporter’s record of the July 28, 2014 pretrial hearing exists and, if so,

whether it can be transcribed for inclusion within the record on appeal as a supplemental record.

In its findings, the trial court shall include the name of the court reporter who will transcribe the

supplemental record and recommend how much time should be allotted for filing the

supplemental record. See TEX. R. APP. P. 34.6(d).

       The trial court shall next determine whether Sharon Hazlewood is able to produce and

file a legible copy of the pages marked as 42-50 in the portion of volume five of the reporter’s

record that she transcribed. In the event Hazlewood is unable to produce and file a legible copy

of pages 42-50 due to her health or for any other reason, the trial court shall determine whether

notes or recordings exist from which pages 42-50 may be reproduced by another court reporter

appointed by the trial court for that purpose. If the trial court appoints a substitute court reporter




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to transcribe Hazlewood’s notes, the trial court shall include the name of the court reporter who

will transcribe the supplemental reporter’s record and recommend how much time should be

allotted for filing the supplemental reporter’s record. See TEX. R. APP. P. 34.6(e)(2–3).

       The trial court shall next determine whether volume ten, page twenty-seven, line twenty-

two of the record is accurate in stating, “He is now cancer free” or whether the sentence in

question should be reported as, “He is not cancer free.” See TEX. R. APP. P. 34.6(e)(2–3).

       Additionally, if the trial court finds that some portion of the court reporter’s notes,

records, or recordings has been lost or destroyed such that supplementation of the reporter’s

record with the transcript of the pretrial hearing conducted on July 28, 2014 or corrections to the

alleged errors in volume five and ten of the reporter’s record as filed cannot occur, the trial court

shall further determine: (1) if appellant timely requested the reporter’s record; (2) if, without

appellant’s fault, a significant portion of the court reporter’s notes, records, or recordings has

been lost or destroyed or is inaudible; (3) if the lost, destroyed, or inaudible portion of the

reporter’s record is necessary to the appeal’s resolution; and (4) if the lost, destroyed, or

inaudible portion of the reporter’s record cannot be replaced by agreement of the parties. See

TEX. R. APP. P. 34.6(f).

        We ORDER the trial court to transmit to this Court, within THIRTY DAYS of the

 date of this order, a record containing its written findings of fact and any supporting

 documentation.

        We DIRECT the Clerk to send copies of this order to the Honorable Elizabeth Frizell,

 Presiding Judge, Criminal District Court No. 7; to court reporter Sharon Hazlewood at her last

 known address; and to counsel for all parties.




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       We ABATE the appeal to allow the trial court to comply with this order.             The

appeal shall be reinstated thirty days from the date of this order or when the findings are

received. A new deadline for filing appellant’s brief will be established upon reinstatement of

the appeal.



                                                   /s/    LANA MYERS
                                                          JUSTICE




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