### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00784- CR

Marc us Anthon y P erkins, App ellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 6 O F TRAVIS CO UNTY NO. C-1 -CR- 12- 2164 72, H ONO RAB LE B RANDY M UELLER, JUDGE P RESIDING

O R D E R A N D ME M O R A N D UM O P I N I O N

P ER CURIAM

Marc us Anthony Perkins was convicted of the offe nse of driving while intox icated. See Tex. P enal Code § 49.04. Per kins appea ls the trial court’s judg ment of convic tion. During the trial, a video taken from the dashboa rd ca mera of one of the responding police office rs was o ff

ered into evidenc e. When the video was offe red, the following exchang e
occur red: [S tate]: Your Honor, for

the re cord, is the video a dmitted into evidence? [C ourt]: W ith no objection, corr ect, [ Perkins’s counsel] ? And t he C ourt has not ed as will the rec ord your ar guments and points you made e arlier
. [P erkins]: Yes. Reservingthose issues, Idon’t have other objec tions.[C ourt]: Okay . Thank you.

(Videota pe admitted into evidenc e).
On the following day , the trial court indicated that it “had an opportunity to view the video evidenc e submitt ed by the S t ate.” Fur ther, when announcing its judgme nt, the trial court explained that it “spent a g ood deal of time w atching the duration of this video once, and then cer tain portions of it
over a nd over a g ain.” Although the rec ord demonstrates that the video was o ff er ed and admitted into evidenc e and relied on by the trial court, the video was not included in the rec ord as an exhibi t. On August 20, 2014, we aske d the trial cour t clerk to file a

supplemental re cord c ontaining the video. The county cler

k responde d and explained that t h e v i d eo was never formally submitt ed to the court repor

ter to make it part of the officia l rec ord and that, there fore , the cler k’s office did not have a copy to submit
. Under Rule 34.6(f) , an appellant is entitled to a new trial if he “has timely reque sted
a repor ter’s rec ord,” but “a signific ant ex h i b i t
. . . has been lost or destroyed” throug h no fault of the appellant’ s; if “the lost or destroyed exhibi t[ ] is nece ssary to the appea l’s resolution”; and if “the lost or destroyed exhibi t ca n n o t b e re p l ace d either by ag ree ment of the parties or with a copy deter mined by the trial court to acc urate ly duplicate with rea sonable cer tainty the orig inal exhibi t.” Tex. R. App. P . 34.6(f) . Acc ording ly , we a bate this appe al and r emand the c ase to the tria l court. On rema nd, the t ri al court is order ed to hold a hear ing to deter mine the issues that follow. First, the tria l court should deter mine if the video is lost or destroyed. Second, if the trial court determines t hat the video is lost or destroyed, it should deter mine whether the vi deo may be 2repla ced either by ag ree ment of the parties or by a copy that the trial court deter mines is an acc urate duplicate of the orig inal video. Finally , in the event that the trial court deter mines that the video is lost or destroyed and further conclude s that it cannot b e re p l ac ed , the trial court must deter mine whether Perkins is entitled to a new trial. The hear ing should be held at the ear liest opportunity , but the par ties may stipulate to as many

of the issues as possible in an e ffor t to save time. Fur ther, the trial court is order ed to make finding s o f fa ct and conclusions of law perta ining to the issues discussed ab o ve. In addition, the trial court cler k is order ed to prepa

re a supplemental cler

k’s rec ord containing the trial court’s finding s and conclusions and any order s signe d by the trial court. Simi larly , the court repor ter is order ed to prepa

re a transcr ipt of the hear ing and to file the transcr ipt as a supplemental repor ter’s rec ord in this appea l. The trial court cler k and the court repor

ter should file their supplemental rec ords within 30 day s of the date ref lected on this opinion. I f the trial court deter mines that additional time is nece ssary to resolve the issues, it sha ll file a written reque st ex plaining the need f or the a dditional time as well as the dilig ent ef forts that have be en made attempting to c omply with the deadline e stablished by this opini on. I t is ordere d September 17, 2014.

Be fore J ustices Pury ear , Pemberton, and F ield Abated a nd Remanded Filed: September

17, 2014 Do Not Publish

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