Abatement Order filed December 17, 2013.

In The

Fourteenth Court of Appeals ____________

NO. 14-13-00229-CR

____________

ORLEAN AYERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 321010176

ABATEMENT ORDER

This is an appeal from the denial of relief following post-conviction DNA 

testing. Appellant’s court-appointed counsel filed a brief in which he concludes the 

appeal is wholly frivolous and without merit. Appellant has made known to this 

court his desire to review the record and file a pro se brief. See Anders v. 

California, 386 U.S. 738 (1967); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. 

App. 1969).
The clerk’s record was filed March 19, 2013. Pursuant to this court’s order, 

the Harris County District Clerk’s office provided appellant with a copy of the 

record. Appellant reviewed the record and requested that the record be 

supplemented. See Tex. R. App. P. 34.5(c). We granted appellant’s motion in part

and ordered the Harris County District Clerk to file a supplemental clerk’s record, 

which was filed October 1, 2013. Included in the record is an affidavit from a clerk 

stating that some of the documents could be located, including appellant’s motion 

for “objection for the preservation of appellate review pursuant to art. 64.04” dated 

February 5, 2013.

Appellant has reviewed the supplemental record and he now requests further 

supplementation, asking that we order the record supplemented with a copy of the 

lost document referenced above, and he provided a copy of the missing document

which is attached to this order. On November 19, 2013, this court requested that 

the State file a response to appellant’s motion on or before December 6, 2013. No 

response has been filed. Accordingly, we issue the following order:

Rule 34.5(e) of the Texas Rules of Appellate Procedure provides: 

If a filing designated for inclusion in the clerk’s record has been lost 

or destroyed, the parties may, by written stipulation, deliver a copy of 

that item to the trial court clerk for inclusion in the clerk's record or a 

supplement. If the parties cannot agree, the trial court must—on any 

party’s motion or at the appellate court's request—determine what 

constitutes an accurate copy of the missing item and order it to be 

included in the clerk's record or a supplement.

Accordingly, the trial court is directed to conduct a hearing to determine, 

whether by agreement or the trial court’s finding, what constitutes an accurate copy 

of the missing item, appellant’s motion for “objection for the preservation of 

appellate review pursuant to art. 64.04” dated February 5, 2013. The court is 

directed to reduce its findings to writing and to have a supplemental clerk’s record 

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containing those findings filed with the clerk of this court, together with an 

accurate copy of the missing item on or before January 10, 2014.

The appeal is abated, treated as a closed case, and removed from this court’s 

active docket. The appeal will be reinstated on this court’s active docket when the 

supplemental clerk’s record is filed in this court. The court will also consider an 

appropriate motion to reinstate the appeal filed by either party, or the court may 

reinstate the appeal on its own motion. 

PER CURIAM

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