TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00827-CV

Appellant, State of Texas//Cross-Appellant, Edmund Bryan Heimlich

v.

Appellee, Edmund Bryan Heimlich//Cross-Appellee, State of Texas

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. GN100142, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

O R D E R

PER CURIAM

                        Appellee/cross-appellant, Edmund Bryan Heimlich, complains of deficiencies in the record on appeal. Specifically, Heimlich points out that the appellate record is incomplete because trial exhibits 1, 10, 11, 14, 19, 20, 21, and 22 are missing. The district court clerk has verified that exhibits 1-20 have been lost.

                        We note that the appellate record contains exhibits 21-23. Therefore, Heimlich’s complaint as to exhibits 21 and 22 is without merit.

                        Second, appellant/cross-appellee, the State of Texas, responds that exhibit 1 should not be submitted for consideration and that exhibit 22 should be stricken from the appellate record because these exhibits were not admitted at trial. The reporter’s record reflects that exhibit 1 was offered but not admitted because the trial court sustained the State’s objection as to relevance. The reporter’s record also reflects that exhibit 22 was merely mentioned at the beginning of an expert’s testimony, but was never offered for admission. The status and/or effect of these exhibits is properly reserved for this Court’s consideration on submission and after briefing. Therefore, the State’s motion to strike exhibit 22 is denied.

                        Finally, we grant Heimlich an opportunity to file proposed substituted copies of exhibits 1, 10, 11, 14, 19, and 20 by July 7, 2006, subject to objection or stipulation by the State. Any objections or stipulations by the State to the authenticity of the proposed substituted exhibits shall be filed by July 17, 2006.

                        It is ordered June 16, 2006.

Before Chief Justice Law, Justices B. A. Smith and Waldrop