Ex Parte Christopher Lee Murray ( 2008 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-07-00278-CR
Gerald John Conger, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. D-1-DC-06-204445, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING
MEMORANDUM OPINION
The State charged appellant, Gerald John Conger, with felony driving
while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04(a) (West 2003), § 49.09(b)(2)
(West Supp. 2007). Conger pleaded not guilty to the offense, stipulated to the prior convictions, and
waived a jury trial. After hearing the evidence and testimony, the trial judge found Conger guilty
of second-degree felony DWI and sentenced him to three years’ imprisonment. In his sole point of
error, Conger argues that the evidence is factually insufficient to support his conviction.
A DVD recording of appellant performing the standard field sobriety tests was taken
and introduced into evidence during trial. The DVD recording, State’s exhibit number 1, was not
included in the appellate record. We have been in contact with the district court clerk and the court
reporter and neither one claims to have custody of the recording.
We must therefore abate these proceedings and remand this cause to the district court
for a determination of the location of the DVD recording exhibit. In the event that the DVD
recording cannot be located, the district court shall determine whether the exhibit can be replaced
by agreement of the parties, or with a copy determined by the district court to accurately duplicate
with reasonable certainty the original exhibit. See Tex. R. App. P. 34.6(f). The district court shall
make findings of fact and submit its findings, the record of any hearing held, and the DVD recording
or any agreed duplicate, to this court no later than 30 days from the date of this opinion.
_____________________________________________
Diane M. Henson, Justice
Before Justices Patterson, Puryear and Henson
Abated
Filed: June 11, 2008
Do Not Publish
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