State v. John Bernard Wachsmann

IN THE TENTH COURT OF APPEALS No. 10-05-00101-CR through 10-05-00117-CR The State of Texas, Appellant v. Rebekah Faith Stanley, ET AL. Appellees From the County Court at Law McLennan County, Texas Trial Court Nos. 2004-3921-CR1 through 2004-3933-CR1 and Nos. 2004-3935-CR1 through 2004-3938-CR1 MEMORANDUM Opinion The State has filed motions to dismiss these seventeen appeals under Rule of Appellate Procedure 42.2(a). See Tex. R. App. P. 42.2(a); McClain v. State, 17 S.W.3d 310, 311 (Tex. App.CWaco 2000, no pet.) (per curiam). We have not issued decisions in these appeals since the Court of Criminal Appeals remanded them to this Court for further proceedings. See State v. Stanley, No. PD-1393-05, 2006 Tex. Crim. App. LEXIS 1816 (Tex. Crim. App. Sept. 20, 2006). The Clerk of this Court has sent duplicate copies of the motions to the trial court clerk. See Tex. R. App. P. 42.2(a); McClain, 17 S.W.3d at 311. None of the Appellees has filed a response. Accordingly, these appeals are dismissed. PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna Appeal dismissed Opinion delivered and filed November 1, 2006 Do not publish [CR25] Though we might prefer to reverse and remand this criminal proceeding due to this delay, the Court of Criminal Appeals requires more than just numerous unsuccessful efforts to obtain the reporter’s record. Johnson v. State, 151 S.W.2d 193 (Tex. Crim. App. 2004). Specifically, before we can reverse the judgment of the trial court and remand this proceeding for a new trial, “the appellant must show (1) that a significant portion of the record was lost or destroyed, (2) through no fault of [his] own, (3) that the missing portion of the record is necessary to [his] appeal, and (4) the parties cannot agree on the record.” Routier v. State, 112 S.W.3d 554, 570 (Tex. Crim. App. 2003). We also note that “a court reporter’s notes and records, or portions thereof, can be considered ‘lost’ only if the missing portions of the appellate record are irretrievable.” Johnson v. State, 151 S.W.2d 193, 196 (Tex. Crim. App. 2004). We have determined that the trial court is in a better position to make the evidentiary record and determination of the four elements required by Routier before a new trial can be granted. Accordingly, we abate this proceeding to the trial court for a determination of these issues. See Kirtley v. State, 56 S.W.2d 48, 52 n.3 (Tex. Crim. App. 2001) (“The Court of Appeals should begin with a determination as to which court should conduct the remaining Rule 34 analysis. If the appellate court finds that such analysis is best done by the trial court, it may remand the case accordingly.”). The trial court shall: 1) conduct a hearing within 21 days from the date of this Order; and 2) prepare and tender to the trial court clerk written findings of fact and conclusions of law and a signed, written order consistent with this Order within 28 days from the date of this Order. The trial court shall also take whatever actions it deems appropriate, including holding the reporter in contempt until the record has been filed, to ensure that if it can be prepared, the record or any part of it is prepared and delivered to the trial court within 14 days of the date of the hearing. The trial court clerk shall prepare and file a supplemental clerk’s record containing a copy of the trial court’s findings of fact and conclusions of law and the trial court’s written order with the Clerk of this Court within 35 days from the date of this Order. The current official reporter of the trial court shall prepare and file a supplemental reporter’s record of the abatement hearing with the Clerk of this Court within 35 days from the date of this Order. PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna Appeal abated Order issued and filed November 14, 2007 Do not publish [CR25]