Susan Donnell v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
December 3, 2018
No. 04-18-00472-CR
Susan DONNELL,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 17-09-238-CRW
Honorable Russell Wilson, Judge Presiding
ORDER
On October 26, 2018, appellant filed a “Motion to Extend Briefing Deadline Pending
Supplementation or Correction of Appellate Record.” In her motion, appellant informed this
court that the clerk’s record was incomplete. According to appellant, the clerk’s record did not
contain “a copy of Appellant’s motion to suppress, the written order denying Appellant’s motion
to suppress, and any findings of fact made by the trial court.” A review of the clerk’s record,
which was filed on September 4, 2018, confirmed these items were missing. Therefore, we
ordered the Wilson County District Clerk to file a supplemental clerk’s record with a copy of the
missing items. On November 5, 2018, the Wilson County District Clerk filed a letter, stating the
motion to suppress, order denying the motion to suppress, and findings of fact were not filed
with the District Clerk’s office, and therefore, she is unable to file a supplemental clerk’s record.
Rule 34.5(e) of the Texas Rules of Appellate Procedure provides that in the event an item
in the clerk’s record is missing, “the parties, may, by written stipulation, delivery a copy of that
item to the trial court clerk for inclusion in the clerk’s record or a supplement.” TEX. R. APP. P.
34.5(e). Accordingly, we ordered the parties to file a written response in this court on or before
November 18, 2018 stating whether they could agree as to what items in the clerk’s record were
missing and deliver copies of those items to the trial court clerk for inclusion in a supplemental
clerk’s record. We advised the parties that in the event they could not agree, we would have to
abate this matter to the trial court to determine what constitutes accurate copies of any missing
items and order the items to be included in the supplemental clerk’s record. On November 19,
2018, appellant filed an “Advisory to the court and Motion to Abate Pending Trial Court’s
Determination of Missing Record Items,” stating the parties were unable to agree and stipulate as
to items were missing. In her motion, appellant requests this court abate the appeal pending the
trial court’s determination of what constitutes accurate copies of the missing items.
After consideration of the foregoing, we GRANT appellant’s motion to abate and
ORDER this matter ABATED and REMANDED to the trial court. See id. We ORDER the
trial court to hold a hearing on or before January 2, 2018 to determine what constitutes
accurate copies of the motion to suppress as well as any related order and/or findings of fact.
We ORDER the trial court clerk to file in this court a supplemental clerk’s record
containing the trial court’s determinations within ten days of the date of the trial court’s hearing.
We further ORDER the court reporter to file a supplemental reporter’s record of the hearing
within ten days of the date of the trial court’s hearing.
All appellate deadlines are SUSPENDED pending further orders from this court.
We order the clerk of this court to serve a copy of this order on all counsel and the
Wilson County District Clerk.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of December, 2018.
___________________________________
Keith E. Hottle
Clerk of Court