Motions Granted and Abatement Order filed June 12, 2018




                                       In The

                     Fourteenth Court of Appeals
                                   ____________

                                NO. 14-17-00734-CR
                                   ____________

               HECTOR DAMIAN GIAGNACOVO, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1525062

                            ABATEMENT ORDER

      A jury convicted appellant of evading detention with a vehicle. In his appellate
brief, appellant contends we should reverse the conviction and remand for a new
trial because the jury charge and verdict from the guilt-innocence phase of the trial
are missing from the clerk’s record. The jury charge is required to be included in the
clerk’s record. Tex. R. App. P. 34.5(a)(4). The record contains an affidavit from a
deputy district clerk swearing the original charge was misplaced and no copies of
the charge have been located.
      Texas Rule of Appellate Procedure 34.5(e) governs lost or destroyed portions
of the clerk’s record:

      If a filing designated for inclusion in the clerk’s record has been lost or
      destroyed, the parties may, by written stipulation, deliver a copy of that
      item to the trial court for inclusion in the clerk’s record or a supplement.
      If the parties cannot agree, the trial court must—on any party’s motion
      or at the appellate court’s request—determine what constitutes an
      accurate copy of the missing item and order it to be included in the
      clerk’s record or a supplement.

Tex. R. App. P. 34.5(e).

      The State asserts it retained a copy of the jury charge and verdict form, and
the trial prosecutor executed an affidavit attesting to the veracity of the document.
Appellant and the State reportedly cannot agree whether the State’s copy of the
charge is an accurate copy of the original.

      As a result, the State has filed a motion asking us to abate the appeal and
remand the case to the trial court under Rule 34.5(e) so the trial court may determine
whether the State’s copy of the charge is an accurate copy of the original. The motion
has been on file for more than ten days, and no response has been filed. The State
has also moved for an extension of time to file its brief pending our disposition of
its motion to abate.

      We GRANT both the motion to abate and the motion for extension and order
as follows:

      The 338th District Court shall immediately conduct a hearing at which
appellant, appellant’s counsel, and the State’s counsel shall participate, either in
person or by video teleconference, to determine the following: (1) whether a filing
designated for inclusion in the clerk’s record has been lost or destroyed; (2) whether
the parties may, by written stipulation, deliver a copy of that item to the trial court

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clerk for inclusion in a supplement to the clerk’s record; or (3) if the parties cannot
agree, what constitutes an accurate copy of the missing item. The court is directed
to reduce its findings of fact to writing and to have a supplemental clerk’s record
containing those findings and, if applicable, the accurate copy of the missing item,
filed with the clerk of this court by July 11, 2018.

        The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
trial court’s findings are filed in this court. The court will also consider an
appropriate motion to reinstate the appeal filed by either party, or the court may
reinstate the appeal on its own motion. It is the responsibility of any party seeking
reinstatement to request a hearing date from the trial court and to schedule a hearing
in compliance with this court’s order. If the parties do not request a hearing, the court
coordinator of the trial court shall set a hearing date and notify the parties of such
date.

        The State’s brief will be due 30 days after the appeal is reinstated.



                                    PER CURIAM




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