IN THE

TENTH COURT OF APPEALS

No. 10-09-00308-CR

Broderick Keith Lewis,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 12th District Court

Walker County, Texas

Trial Court No. 23,958

This appeal has become stalled. 

On November 3, 2010, the State filed a motion to supplement the reporter’s record with State’s exhibit 17, a BB gun.  After unsuccessfully attempting to encourage location of other previously lost exhibits, we granted the State’s motion to supplement the reporter’s record by letter dated February 1, 2011.  The supplemental reporter’s record was due 14 days from the date of the order, that being February 15, 2011.  We also directed the trial court clerk to send us the original of State’s Exhibit 17, the BB gun, after the reporter had prepared the supplemental record.  We have received neither the supplemental reporter’s record nor the original exhibit.

We contacted the reporter and the trial court clerk and learned that the State has possession of the BB gun.  We also learned that the trial court clerk has been unable to cause the State to turn the BB gun over to her so that she and the reporter could comply with our order of February 1, 2011. 

Original exhibits are kept by the trial court clerk but upon the reporter’s request, are given to the reporter for use in preparing the reporter’s record.  See Tex. R. App. P. 34.6(g)(1).  After copying the exhibits for inclusion in the reporter’s record, the reporter must return the exhibits to the trial court clerk.  Id.  If a person other than the trial court clerk possesses an original exhibit, we may order that person to deliver the exhibit to the trial court clerk.  Id.  Further, we may direct the trial court clerk to deliver to this Court any original exhibit.  Tex. R. App. P. 34.6(g)(2).

Accordingly, the State is ORDERED to deliver State’s Exhibit 17, the BB gun, and any other original exhibit in the possession of the District Attorney’s Office pertaining to the underlying trial in this appeal, whether admitted into evidence or simply identified or offered but not admitted, to the District Clerk of Walker County, Robyn Flowers, and simultaneously notify this Court that the exhibit or exhibits were delivered, within 14 days from the date of this order.  The failure of the State to comply with this Order will result in the abatement of this appeal, without further notice, to the trial court to determine what exhibits are in the possession of the State and a date certain when the State’s Exhibit 17 or other exhibits will be delivered to the District Clerk.

Further, the District Clerk of Walker County, Robyn Flowers, is ORDERED to deliver, within 7 days of receipt, the exhibit or exhibits to Kaetheryne Kyriell or Denise MacKay, the official reporters of the 12th Judicial District Court to copy for inclusion in a supplemental reporter’s record.  The reporter must return the exhibit or exhibits to the District Clerk within 7 days of the receipt of the exhibit or exhibits.  The District Clerk is further ORDERED to send State’s Exhibit 17 to this Court within 14 days from the date the exhibit is returned to the District Clerk.

The supplemental reporter’s record containing a copy of State’s Exhibit 17 and any other exhibit delivered to the District Clerk by the State is ORDERED to be filed with this Court within 14 days of the reporter’s receipt of the exhibit or exhibits.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Order issued and filed March 23, 2011

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