Order entered Febr uary 17 , 2023

In The 

### Court of Appeals **Fifth District of Texas at Dallas**
No. 05
- 22
- 00139
- CR KEPHREN MARCUS THOMAS , Appellant V. THE STATE OF TEXAS , Appellee On Appeal from the 28 3 rd Judicial District Court Dallas County, Texas Trial Court Cause No. F 20
- 36078 -T
O RDER We REINSTA TE th is app e al

. On November 7, 2022, the Court granted appellant ’ s m otion to abate this appeal to allow the trial court to conduct a h earing to address num e rous problems with the e xhibits to the reporter’ s record and a missing jury charge from the clerk ’ s record. In his motion to ab ate , a ppellant conte nd ed Sta te ’ s Exhibits 314, 317, 344, 486, and 497 and Defense E xhibits 92 and 125 had not been filed with th e– 2

– report e r ’ s record because they we re re portedly uncopiable . Appellant contend ed State ’ s Exhibit 407 , filed as a compact disc with the Court , is unplayable. Appell ant contend ed State ’ s Exhibits 336, 338 and 447 , and Defense Exhib it 118

were missing from th e record

. A ppellant furth e r report ed that State ’ s Exhibits 348 and 349 and Defense Exhibit 107 appear ed to be mislabeled. Finally, appellant

n ote d that the Da llas C ounty District Clerk h ad not supplemented the clerk ’ s

reco rd with the jury charge on punishm ent and ju ry punishment verdict as previously ordered

. The Court ’ s November 7, 2022 order directed the trial court to mak e findings regarding th e issues with the record appellant had identified. T he Court ’ s order al so requested findings on other issues ide ntified by the Clerk of the Court.
T he Clerk ha d de termined that the compact dis c filed of State ’ s Exhibit 345 w as unplayable and t he cour t re por ter ha d not filed State ’ s Exhibits 335, 337, 339, 340, 341, 342, and 343 in proper elec tronic form as pdf docum ents place d into a volume, text searchable, and bookmarked as directed by the Clerk . Instead, the court reporter ha d submitted the exhibits a s compact discs and filed a S eptember 15, 2022 letter requesting reconsideration of electronic submission on t he gr ound such documents are voluminous and only small excerpts from each dis c was used at trial.– 3

– The Court ’ s order re quested findings from the trial court as to whe ther the partie s could agree to produce in electronic form only a li mited selection of document s from Sta te ’ s Exhibits 335, 337, 339, 340, 341, 342, and 34 3 with the remainder being filed on c o m p a c t disc s . In the event the parties could not agree to th e more limited electronic production, the Court ordered the court reporter to file the exhibits in electron ic form. On December 7, 2022, pursuant to the Court ’ s order, the trial court conducted a hearing on the state of the record. The trial court entered a December 7, 2022 ord er styled “ Findings an d Order ” that includ ed findings on the various disputed exhibits

. The trial court ’ s Findings and Order was included in a supplemental cl erk ’ s re cord filed on December 9, 2022. The trial court separated its findings into four categories . The initial

c at egory of findings concerns the missing punishment

- stage jur y charge a nd punishment verdict. In findings no. 1

– 3 , the trial court found that (1) the original jury cha rge and verdict on punishment had been lost , (2) the State has a final draft of the puni shmen t jury charge that accurately reflects the copy submitted to the ju ry, and (3) the final draft charge does not reflect the verdict. The trial court ordered that the final draft be submitted to the clerk for inclusion in the supplemental record.– 4

– In its second category of findings, the trial court entered finding s numbered 4 through 18 for what it defined as the “ Problem Exhibits. ” T he c ourt found as foll ow s: 4. The reporter ’ s record should contain St at e ’ s exhibits 314, 317, 336, 338, 344, 345, 407, 447, and 486. 5. There is no State ’ s exhibit 497. State ’ s exhibi t 487, as o riginally submi tted, was on an encrypted dis c . The State has made accu rate copies o n a n un encrypted disc to tender to the cou rt re porter for su bmission to the court of appeals , and for [appellant ’ s] appellate attorney. 6. The issu e with State ’ s exhibits 314 and 317 was the size of the disc. Th ese exh ibits can be copied to a disc with s uf fi cient capacity and submitted to the court o f appeals. The court reporter has made such copies and is ordered to submit them to the court of appeals. 7. State ’ s exhibit 3 36 and 338 can be submitted in electronic form a s text

- searchable, bookmarked pdf do cum ents in a volume. 8. State ’ s exhibit 344 is a B lu e Ray disc, playable in a Blue Ray player. It cannot be modified. The parties agree to submit the orig inal exhibit to the court of appeals. The State will pr ovide a copy to the defendant ’ s appellate at to rney . 9. State ’ s exhibit 345 is a .kmz fi le on a disc. It can be opened in Goo gle Maps or Google Earth, but it cannot be modified. The parties agree to subm it the orig inal exhibit to the court of appeals. 10. After multiple attempts, the court repor te r could not make a copy of State ’ s exhibit 40 7. The parties agree to the court reporter submitting the original exhibit to the court of appeals. 11. State ’ s E x hibit 447 i s already included in the record currently before the court of appeals.– 5

– 12. After mu lt iple attempts, the court reporter could not make a copy of State ’ s Exhibit 486. The parties agree to the court reporter submitting the original exhibit. 13. The record should contain defense exhibits 92, 118, and 125. 14. After multiple attempts, the c our t reporter could not make a copy of Defen s e Exhibit 92. The parties agree to the court reporter submitting the original exhib i t to the court of appeals after providing the defendant ’ s appellate attorney with the opportunity to view the exhibit

. 15. T he court reporter has copied the file from the thumb drive submitted as Defense Exhibit 118. The court reporter will attempt to submit the copy as a download throu gh the port al. If it cannot be submitted as a download, the court reporter will sen d the o rigi na l exhibit to the court of appeals. 16. After multiple attempts, the court reporter could not m ake a copy of Defense Exhibi t 125. The parties agree to the court reporte r s ubmitting the original exhibit to the court of appeals after provid ing [appellant ’ s ] appellate attorney wit h the opportunity to vi ew the exhibit. 17. Appellant timely re quested the reporter ’ s reco rd. 18. No exhibits have been lost or destroyed

. In its t hird category of findings, the trial court entered findings numbered 19 through 2 1 for what it defined as the “ Mislabe le d Exhibits

. ” T he trial c ourt found that the exhibits labe led as State ’ s Exhibits 348 and 349 and Defense Exhibit 107 in the r ecord accur ately reflect the exhibits with those des ignations entered at trial.– 6

– Finally, i n a fo urth cat egory of findings , co mprised only of fi nding 22, the trial court conclud ed regarding the “ Voluminous Exhibits ” that the parties would not agre e to produ ce only certain documents in electroni c form. O n December 8, 2022, the court reporter filed a letter with the Court “ to confirm the resolutions made with the exhibit i ssues . ” In her letter, the court reporter described the agreements “ agreed to by all par ties ” as fo llows: c opies of State ’ s Ex hibits 314 , 31 7, and 487 would be sent to the Court on compact discs. Stat e ’ s Exhibits 335

– 43 and Defe nse Exhibit 118 would be fil ed with the Court through the TAMES portal. The originals of State ’ s Exhibits 344, 345, 407, and 486 and Defense Exhibits 92 a nd 125 would be filed with the Court

. O n December 15, 2022, the court reporter filed through the TAMES portal De fense Exhibit 118. On December 19, 2 022 , the court r eporter tendered for filing eighteen compact discs . Th e discs included the original s of Stat e ’ s Exhibits 344, 345, 407, 486 and Defen se Exhibi ts 92 and 125 and copies of State ’ s Exh ib it s 314, 317, 335

– 343 , and 48 7

. W e note that State ’ s Exhibit s 344 and 407 w ere admitted into evidence f or record purposes o nly and the prosecuto r described the video recording admitt ed as State ’ s Exhibit 407 as “ inoperable

. ”
In her letter accompan ying the discs, the court reporter represented that th e discs were being submitted in physical form “ [d]ue to various issues with copyin g the exhibits, issues with sending th rough the p ortal, or incompatible formats

... . ”– 7

– The letter indicated State ’ s Exhibits 336 and 338 could not be sent through the portal. There were no specific explanations for the inability to file the other exhibits elec tronically.
We ADOPT trial court find ing s 1

– 3 regarding the jury charge and verdict on punishment. The supplemental clerk ’ s record filed on December 9, 2022 include s the copy of the final draft punishment charge and verdict form. We conclude that th e reco rd has been supplemented with the punishment charge and verdict form

. See T EX
. R. A PP
. P. 34.5(e). We further ADOPT trial court fin ding s 19 and 20 showing State ’ s Exhibits 348 and 349, accurately reflect the exhibits admitted under those exhibit numbers

a t trial. We do not ad opt trial court finding 21 finding Defense Exhibit 107 accurately reflects the exhibit admitted under that exhibit number at trial. The record in dex refers to Defens e Exhibit 107 as a “ Chart. ” In th e record, the exhibit is not describe d with spec ificity as it was introduced, but it was admitted for demonstrative purposes onl y. I n the exhibit volume containing the Def en se exhibi ts, the exhibit cor responding to Defense Exhibit 107 appears be one in a series of crime scene photograph s . We ADOPT trial court finding s 4 , 11, 13, 15, 17, 18 and 22

. In findin g s 5 and 6, the trial court found the State had copied State ’ s Exhibit 487 and the court reporter had copie d State ’ s exh i bits 314 and 317 . The– 8

– trial cour t fo und the parties would submit the copies to the Court on discs. On December 19, 2022, the court reporter tendered for filing copies of the exhibits. The Clerk has det ermined that the copy of State ’ s Exhibit 487 will not p lay. It is the court reporter ’ s d uty to file the reporter ’ s record, including a ll exhibits, in electro nic format through the Tex as Appeals Management and E

filing Sy stem recor ds submission portal ( TAMES)

. See T EX
. R. A PP
. P. App . C, R. 2 ; Un if. Format Manu al for Tex. Reporter ’ s Recs. § 8 (amended June 28, 201 0), https://ww w.txcourts.gov/media/244178/Unifor m - Format

- Manua l

20100701.pdf

. When a n e xhibit exceeds the maximum file size to pass through the TAMES portal, the court reporter m ust separa te the exhibit into multiple smaller fi les that meet the TAMES p ortal ’ s limits. Se e Uniform Format Manual at §§ 8. 9, 8.10 ; Off

. of C t

. Admin

. TAMES RSP User Guide 8 ( 2013), https ://rsp.txco urts.gov/training/ TAMES

- RSP

- Us er - Guide.pdf

. Physical media

can be sent to the app ellat e court if the appel la te court orders the physical it em fil ed. See Uniform Format Manu a l at §§ 8.9. 8.10

. In this case, th ere has been no showing that State ’ s Exhibits 314, 317, and 487 cannot be separated into small er files and filed electronically t hrough the TAMES portal. Accor din gly, the Court ORDER S court reporte r Sharina A. Fowler to , within THIRTY DAYS of the date of this order, file the contents of Sta te ’ s Exhibit s 314, 317 and 48 7 into the TAMES system, either as entire file s– 9

– or, if necessary, by compressing or separating the exhibit s into multiple files as

ne eded in a way th a t would accurately depict the orig inal exhibit s . In the event that any of these exhibits cannot be filed electronically, we OR DER Ms. Fowler
to file with the Court , in lie u of the electronic filing ordered above, a signed
statement c ertif y ing that she is unable to file the exhibit or exhib its electronically and explaining specifically why each exhibit not filed el ectronically cannot be filed through TAMES.
We ADOPT trial c ourt finding 7. In finding 7, the trial court found that State ’ s Exh ibits 336 and 338 can be submitted in electron ic form as text

searchable, bookmarked pdf documents in a vol ume. The trial court did not make findings on State ’ s Exhibits 335, 337, and 339

– 43 but in her December 8 , 2022 letter, the court re porter r epresente d tha t the parties had agreed that State ’ s Exhibits 335

– 43 would be filed electronically through the TAMES portal. Despite the trial court ’ s finding and the court reporter ’ s repres entation of the parties ’ agre ement, the court reporter submitted State ’ s E xh ibits 335

– 43 on December 19, 2022 as physical discs. The index to t he reporter ’ s record identifies the exhibits as cellphone records and records from Google and F acebook.
T he Court ORDER S court reporter Sharina A. Fowler to , within THIRTY DAYS of the date of this order, file the contents of Sta te ’ s Exhibit s 3 35

– 43 into the TAMES system as v olumes , in text

- searchable Portable Do cument Format– 10

– (PDF) , preferably by converting the docume nt s direct ly into PDF file s , but as

scann ed document s if necessary

. See Unif orm Format Manu a l at § 8. 3

. In the event that any of these exhibits cannot be filed electronically, we OR DER Ms. Fowler to file with the Court , in lieu of the electronic filing ord ered above, a signed statement c ertif ying that she is unable to file the exh ibit or exhib its electronically and explaining specifically why each exhibit not filed el ectronically cannot be filed through TAMES. In finding 8, the trial court found the bl u - ray disc admitted into evidence as State ’ s Exhibit 344 can be copied, but it c annot be modified. The parties will note that the Court do es not have the capability to rev iew blu

- ray disc s . Accordingly, to the extent either party considers the contents of the blu

- ray disc admitte d into evidenc e as State ’ s Exh ibit 344 to be necessary a nd material to the resolution of the appeal, we ORDER the party to file , before the filing of appellant ’ s brief, a motion with the Court objecting to the submission of the appe al without review of the contents of State ’ s Exhibit 344. If no party files a mo t ion regarding State ’ s Exhibit 344, the Court will conclude the contents of State ’ s Exhibit 344 are not necessary and material t o the resolution of the appeal

. In finding 9 , the trial court found that Stat e ’ s Exhibit 345 is a .kmz fi le on a disc that can b e open ed in Google Maps or Goog le Eart h but cannot be modified. In findings 1 0, 12, 1 4 , and 16, the trial court found that the court reporter could– 11

– not copy State ’ s Exhibit s 407 and 486 and Defense Exhib its 92 and 125 despite making multip le atte mpts. The Court ADOPTS trial court findings 9, 10, 12, 14, and 16. T he Court will accept the original s of State ’ s Exhibits 345, 407, 486 and Defense Exhibits 92 and 125 as part of th e record on appeal. See Un if. Format Man u al § § 8.9. 8.10

. We DIRECT the Clerk of t he Court to transmit copies of this order to the Honorable Lela Lawrence Mays, Presiding Judge, 283rd Judicial District Court; to Sharina A. Fowler, official court repo rte r, 283rd Judicia l District Court; and to counsel for the parties.

/s/ ROBERT D. BU RNS, III CHIEF JUSTICE