                                    NO. 07-03-0024-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                  JANUARY 14, 2004
                           ______________________________

                               TOM RICHARD DOYLE, JR.,

                                                           Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

          FROM THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY;

          NO. 02-05-03090-CR; HON. JAMES H. KEESHAN, JR., PRESIDING
                       _______________________________

                               ABATEMENT AND REMAND

                          _______________________________

Before JOHNSON, C.J., QUINN and CAMPBELL, JJ.

        Pending before this court is a motion to abate this cause filed by Tom Richard

Doyle, Jr. (appellant). Appellant requests that we remand the cause to the 359th District

Court of Montgomery County, Texas (trial court) for a hearing. The reason for his request

is that the clerk’s record is missing a purported jury note delivered to the trial court and its

purported response to the note. Appellant contends that the note is important to his case
because it may involve “stacking” of his sentences which may be impermissible “under the

statute and applicable case law.” On December 30, 2003, we directed the parties, via

letter, to determine whether they could stipulate per Texas Rule of Appellate Procedure

34.5(e) to the contents of the purported jury note. The State responded by basically

stating that no one involved in the trial had a recollection of any jury note. Appellant

responded by stating that in discussing the matter with trial counsel there is a belief that

there were “at least three jury notes, and that at least one of them involved the

guilt/innocence phase of the trial.” Furthermore in speaking with one of the jurors in the

case, appellant was allegedly told that 1) at least one juror “remembered a note and

response regarding ‘stacking,’ and also remembered there might have been a couple of

other notes” and 2) that “the jury/court communications [were] left on the table in the jury

room.” Needless to say, the parties did not inform this court of any agreement to stipulate

to the contents of the note.

       Consequently, we abate this appeal and remand the cause to the trial court for

further proceedings. Upon remand, the trial court shall immediately cause notice of a

hearing to be given and, thereafter, conduct a hearing to determine the following:

       1. whether the jury executed any notes which were forwarded to the trial
       court to review and answer;

       2. if such notes were executed, whether the trial court responded to them;
       and,

       3. if such notes and responses were made, whether they can be located and
       included in the appellate record.




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If such notes and responses were made but cannot be found, the trial court is also directed

to 1) determine whether the contents of the missing jury notes and responses can be

accurately re-created, 2) re-create the contents of both the notes and responses, if

possible, and 3) include their re-creation in a supplemental clerk’s record pursuant to Rule

34.5 (e) of the Texas Rules of Appellate Procedure.

       We further direct the trial court to issue findings of fact and conclusions of law

addressing the foregoing subjects. Furthermore, the trial court shall also cause to be

developed 1) a supplemental clerk's record containing the findings of fact and conclusions

of law alluded to as well as any re-creation of the notes and responses it derived and 2)

a reporter's record transcribing the evidence and argument presented at the

aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's

record to be filed with the clerk of this court on or before February 13, 2004. Should

additional time be needed to perform these tasks, the trial court may request same on or

before February 13, 2004.

       Finally, all briefing deadlines are stayed until further order from the court.

       It is so ordered.

                                                  Per Curiam



Do not publish.




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