Alvin M. Burns and I.M. Burns v. Dimmit County, Texas, Roberto Ramirez, and Edward Dryden, Eusebio Cantu Torres, Eusebio Torres, Jr., Gladiator Energy Services, LLC, Hope Balderas, Juan Morales Balderas, and Lucia Balderas Lopez ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
March 27, 2018
No. 04-16-00593-CV
Alvin M. BURNS and I.M. Burns,
Appellants
v.
DIMMIT COUNTY, TEXAS, Roberto Ramirez, and Edward Dryden, Eusebio Cantu Torres,
Eusebio Torres, Jr., Gladiator Energy Services, LLC, Hope Balderas, Juan Morales Balderas, and
Lucia Balderas Lopez,
Appellees
From the 293rd Judicial District Court, Dimmit County, Texas
Trial Court No. 12-07-11738-DCV
Honorable David Peeples, Judge Presiding
ORDER
Appellee Dimmit County, Texas has filed a “Motion Regarding Supplementation of
Reporter’s Record By Replacing Exhibits, If Any, Determined to Be Missing And Necessary to
Resolve Appellant I.M. Burns’ Attorney-Disqualification Claim.” In the motion, Dimmit
County argues that I.M. Burns is not entitled to a new trial based on lost exhibits and asks this
court to determine that Burns has failed to meet the requirements for a new trial under Texas
Rule of Appellate Procedure 34.6(f). See TEX. R. APP. P. 34.6(f). In the alternative, Dimmit
County requests that we abate the appeal and instruct the trial court to conduct a hearing and
make findings determining whether necessary exhibits are lost or destroyed, and if so, whether
they may be replaced by agreement of the parties or with an accurate copy or duplicate. See id.
Appellants Alvin M. Burns and I.M. Burns filed a written response on March 12, 2018, along
with a joint motion to abate the appeal under Rule 34.6(f). The Burns appellants agree that
abatement to the trial court for a hearing to determine whether the missing exhibits can be
replaced or duplicated is the appropriate remedy.
After considering appellee Dimmit County’s motion and the Burns appellants’ response
and motion, we DENY Dimmit County’s request that we determine whether I.M. Burns is
entitled to a new trial at this stage of the appeal, but GRANT its request for an abatement to the
trial court for a hearing and findings under Rule 34.6(f). We similarly GRANT the motion to
abate filed by the Burns appellants.
Accordingly, this appeal is ABATED for a period of thirty (30) days from the date of this
order, and the trial court is ORDERED to conduct a hearing and make written findings of fact
determining whether: (1) any significant exhibit pertaining to the attorney disqualification
motion and hearings is lost or destroyed, and if so, (2) whether the missing exhibit(s) are
necessary to the appeal’s resolution, and if so, (3) whether the lost or destroyed exhibit(s) can be
replaced by agreement of the parties or “with a copy determined by the trial court to accurately
duplicate with reasonable certainty the original exhibit(s).” See TEX. R. APP. P. 34.6(f).
The trial court clerk is ORDERED to file a supplemental clerk’s record containing the
trial court’s written findings in this court within thirty days from the date of this order. The
court reporter is ORDERED to file a supplemental reporter’s record containing a transcript of the
hearing held on this matter and the replaced or duplicated exhibit(s) in this court within thirty
days from the date of this order. Because the supplemental clerk’s record and supplemental
reporter’s record will contain matters that pertain to the attorney disqualification issue, both
records must be filed under seal in this court pursuant to our order issued on December 20,
2017.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 27th day of March, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court