      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00487-CR



                                 William Berry Pierce, Appellant

                                                   v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
        NO. 5581, HONORABLE JAMES F. CLAWSON JR., JUDGE PRESIDING



                             MEMORANDUM OPINION

PER CURIAM

               On May 25, 2010, this Court ordered Lou Ann Lindeman Berry, court reporter for the

33rd District Court, San Saba County, to appear on June 23, 2010, to show cause why she should

not be held in contempt for her failure to file the reporter’s record in this cause as ordered. Based

on Berry’s representation that the record had been destroyed, the order provided that Berry would

be relieved of her obligation to appear if she filed an affidavit describing in detail the status of the

record, the circumstances surrounding its loss, and any efforts made to recover the record. As

requested, Berry has filed an affidavit stating that all copies of the record have either been deleted

or destroyed by a computer virus, that attempts have been made to recover the record from Berry’s

computer, and that these attempts have been unsuccessful.

               This appeal is hereby abated for a determination of whether the reporter’s record can

be replaced by agreement of the parties. See Tex. R. App. P. 34.6(f)(4). The trial court is directed
to forward a record of any proceedings related to this determination, including findings of fact and

conclusions of law, to this Court within 30 days of the date of this order. In the event that the

reporter’s record cannot be replaced, the appellant will be entitled to a new trial. See Tex. R. App.

P. 34.6(f).




Before Justices Patterson, Puryear and Henson

Filed: July 21, 2010

Do Not Publish




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