NO. 07-04-0085-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D JULY 15, 2004

______________________________ ADELAIDA CONTRERAS, APPELL ANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 3 64TH DI STRICT COURT OF LU BBOCK COU NTY; NO. 2003-001,686; HONORABLE AN DREW KUPPER, JUDGE

_______________________________ Before QUINN and REAVIS an d CAMPBELL, JJ. ON MOTION TO AB ATE Before the cour

t is the State’s motion to abate this appeal from a bail reduc tion hearing. It seeks abate ment and remand pursua nt to Rule of App ellate Proc edure 34.6(e)(3)to supplement the r eporter’s r

ecord wi th omitted exhi bits. The omitted exhi bits are the two exhib its introduced by appell ant Adelaida Cont reras at the h earing. They include offense repo rts, including witnessstatements, an officer’s probable c ause affidavit,-2-

and appellant’s c riminal his tory records. The exhi bits wer e introduced w ithout objecti on and were dis cussed at the hear ing. The repor ter’s reco rd indicatesthe exhibi ts we re retained by the trial co urt judge. The State’ s motion reci tes the court r eporter and tr ial court judg e haveinforme d the St ate the y do n ot hav e the ex hibits. The m o tion als o represents the State has s ought an agreement w ith appellant’ s counsel to r each an agreement to cor rect the record under Rul e 34.6(e)(1) , but no responsewas rec eived. Pursuant to appe llant’s a ffidavit of indig ency, the tr ial court di rected that she be furnished a completereporter’s record of the bai l reduction p roceeding. Rule 34.6(e)(3)

providesthatwhen a “di spute arises” concerning t he accuracy of the record after it has been filed in an appell ate court, the c ourt may abate t he appeal and submit the dispute to t he trial cour t for resoluti on. The motion and recor d before us do not reflect a d isput e concerning the accuracy of the record. H ad the exhibi ts simply been o mitted, either party

could requ est supplementati on by the cour t reporter un der Rul e 34.6(d). The State’s motion represents, however , that the orig inal exhi bits are unavailable. The rule most dir

ectly appl icable to thes e facts is Rule 34.6(f), g overning lost or destroyed exhibits . That rule als o providesfor replacement of a lost exhi bit by ag reement of the parties or , failing that , replacement w ith a copy determined by the tri al court to accu rately dup licate the original exhibit. In either event, abatemen t and remand is necessary

for resolutio n by the tr ial court. Acco rdin gly, we hereby abate the appeal and remand the cause to the trial court. Upon remand the tri al court immedi ately shal l giv e notice of an d condu ct a hearing to-3-

determine: (1) whether th e exhibits admitted at appell ant’s December 18, 2003 hearing are lost or otherwise unavailable for inclusion in the record; (2) if so, whether the parties are able to agree on copies which w ill accur ately reflec

t the exhibi ts admitted; and ( 3) if the parties are not able to agree, w hether the ex hibits can be rep laced wi th copies that accurately duplicate the e xhibitsadmitted wi th reasonable c ertainty. Tex. R. App. P. 31.3, 34.6(f). The hearing shall be transcrib ed. The trial court shall make findings of fact, conclusionsof la w, and render such o rders as the court may find necessary to cause the filing of a compl ete appellate r ecord. Those matters sha ll be incl uded in a supplemental clerk's record. A s upplemental repor ter's recor

d of the hearing shall also b e included in the appellate record. The tr ial cour t shall ens ure the supplementa l records are filed in this court by A ugust 13, 2004.

Per Curiam

Do not publish .