Order filed August 27, 2013.




                                     In The
                    Fourteenth Court of Appeals
                                  ____________
                               NO. 14-12-00796-CR
                   LISA MICHELLE ESTRADA, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee
                             ____________
                               NO. 14-12-00797-CR
                  EX PARTE LISA MICHELLE ESTRADA



                    On Appeal from the 262nd District Court
                              Harris County, Texas
                  Trial Court Cause Nos. 1296827 & 1296827-A


                CONTINUING ABATEMENT ORDER
      In the appeal docketed under number 14-12-00796-CR, appellant appeals
from the order adjudicating her guilt for theft and sentencing her to confinement
for six months in state jail. In the appeal docketed under number 14-12-00797-CR,
she appeals from the denial of her pre-trial application for writ of habeas corpus
pursuant to Texas Code of Criminal Procedure article 11.072. See Kniatt v. State,
206 S.W.3d 657, 663-64 (Tex. Crim. App. 2006) (reaffirming rule that jurisdiction
is established at the time the writ is filed and is not defeated by subsequent
adjudication of guilt). On appellant’s motion, these appeals were consolidated.

      Appellant requested supplementation of the appellate record with a police
statement from witness Melanie Thomas in support of her contention that the State
suppressed exculpatory evidence, rendering her plea involuntary. At the writ
hearing, the court ordered: “In an abundance of caution, I’m going to go ahead and
order that the State obtain a copy of that witness statement so that it can be made a
part of this record for purposes of an appeal, if that’s what you choose to do.”

      On March 21, 2013, this court ordered counsel for the State to see that the
witness statement by Melanie Thomas is made a part of the record. We further
ordered a supplemental clerk’s record containing the witness statement by Melanie
Thomas filed with the clerk of this court in the habeas appeal docketed under
number 14-12-00797-CR on or before April 26, 2013. When no supplementation
was filed, we issued a follow-up order on June 4, 2013.

      On July 31, 2013, counsel for the State filed a notice in response to this
court’s order stating that he had located the witness statement of Melanie Thomas,
and it is in the possession of the Houston Police Department. Neither the Harris
County District Attorney’s office nor the trial court’s case file had a copy of the
statement. Counsel for the State questions whether the witness statement properly
can be made a part of the appellate record when it was not before the trial court.
See Ramirez v. State, 104 S.W.3d 549, 551 n.9 (Tex. Crim. App. 2003)
(concluding document submitted to trial court after it lost jurisdiction to take
evidence was not part of record); Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001) (holding supplementation rules cannot be used to create a new
record and denying request to supplement record with docket sheet from testifying
witness’s case).

                                          2
        Appellant’s counsel also filed a notice in response to this court’s orders in
which he urges that supplementation of the record be permitted. Appellant argues
that the trial court can reacquire authority to make documents part of the appellate
record if the appellate court abates the appeal. See Farris v. State, 712 S.W.2d 512,
514 n.2 (Tex. Crim. App. 1986) (rejecting supplementation of the record with new
testimony from the accomplice witness’s trial because it was not developed in
proceedings surrounding appellant’s trial and the trial court did not take judicial
notice of the testimony).

        Accordingly, we issue the following order:

        We ORDER the trial court to reconsider its order that the witness statement
by Melanie Thomas be made a part of the record in the habeas appeal in light of
the State’s position that supplementation may be improper. An appellate court may
not rely upon an invalid supplement to a record in deciding a defendant’s appeal;
we are limited to those portions of the record which have been properly approved.
Farris, 712 S.W.2d at 514. The trial court may conduct a hearing regarding
supplementation, if necessary. A record of any hearing and a supplemental clerk’s
record containing the trial court’s findings or order regarding supplementation of
the record shall be filed with the clerk of this court on or before September 27,
2013.

        The appeals remain abated, treated as closed cases, and removed from this
court’s active docket. The appeals will be reinstated on this court’s active docket
when the supplemental clerk’s record is filed in this court. The court will also
consider an appropriate motion to reinstate the appeals filed by either party, or the
court may reinstate the appeals on its own motion.

                                   PER CURIAM


                                          3
