

                                                NO.
12-05-00149-CR
 
IN THE COURT OF APPEALS 
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
JULIA F. MCMURREY,      §                      APPEAL FROM THE 
APPELLANT
 
V.        §                      COUNTY COURT AT LAW #3
 
THE STATE OF TEXAS,
APPELLEE   §                      SMITH
COUNTY, TEXAS
                                                                                                                                                           

MEMORANDUM OPINION
            Appellant, Julia F. McMurrey, and the
State have filed a joint motion to remand this cause for a new trial.  In their motion, the parties state that
certain trial exhibits are missing, lost, or destroyed and that certain others
which are available cannot be determined, with certainty, to have been
introduced into evidence.  The parties
further state that a number of Appellant’s complaints on appeal relate to the
admissibility of the State’s exhibits and therefore the exhibits are necessary
to the resolution of this appeal. 
Finally, the parties state that the exhibits cannot be replaced by
agreement or with a copy determined by the trial court to accurately duplicate
with reasonable certainty the original exhibit. 
See Tex. R. App. P. 34.6(f)(3).
            Texas Rule
of Appellate Procedure 34.6(f) prescribes the circumstances under which a
defendant can obtain a new trial due to an incomplete record:
 
(1)           if the appellant has timely requested
a reporter’s record;
 
(2)           if, without the appellant’s fault, a
significant exhibit or a significant portion of the court reporter’s notes and
records has been lost or destroyed or–if the proceedings were electronically
recorded–a significant portion of the recording has been lost or destroyed or
is inaudible;
 
(3)           if the lost, destroyed or inaudible
portion of the reporter’s record, or the lost or destroyed exhibit, 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, or the lost or destroyed exhibit cannot be replaced either by
agreement of the parties or with a copy determined by the trial court to
accurately duplicate with reasonable certainty the original exhibit.
 
 
Tex. R. App. P. 34.6(f).  Based upon our review of the parties’ motion
and the reporter’s record from a prior hearing relating to the status of the
subject exhibits, we conclude that Appellant is entitled to a new trial.  See id.  Accordingly, the parties’ motion is granted,
the judgment of the trial court is reversed, and the cause is remanded
for a new trial.
 
 
                                                                                       JAMES T. WORTHEN   
                                                                                                   Chief Justice
 
 
Opinion delivered June 21,
2006..
Panel consisted of Worthen,
C.J., Griffith, J., and DeVasto, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(DO NOT PUBLISH)

