COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

SECOND ORDER OF CONTINUING ABATEMENT

Appellate case name: Bartolo Cardenas Perez v. The State of Texas

Appellate case number: 01-14-00061-CR

Trial court case number: 1846057

Trial court: County Criminal Court at Law No. 13 of Harris County

This case was abated and remanded to the trial court for a hearing and findings regarding 

the reporter’s record filed in this Court on November 9, 2015. On April 11, 2016, appellant’s 

counsel notified the Clerk of this Court that additional time was needed “to conclude the matter.”

The trial court clerk has filed supplemental clerk’s records that include, among other documents,

the trial court’s April 15, 2016 order denying the “State’s Motion to Have the Honorable Don 

Smyth Preside over the Abatement Hearing” and an “Affidavit of Judge Don Smyth.”1 

However, the Clerk of this Court has not received a supplemental clerk’s record containing 

findings, recommendations, or orders regarding the court reporter’s record filed on November 9, 

2015, or a reporter’s record or supplemental reporter’s record as directed in this Court’s orders 

issued on March 22 and June 16, 2016.

Accordingly, we continue the abatement of this appeal and remand to the trial court to 

immediately conduct any additional hearing at which a representative of the Harris County 

District Attorney’s Office and appellant’s appointed counsel, Sarah V. Wood, shall be present. 

Appellant also shall be present for the hearing in person or, if appellant is incarcerated, at the 

trial court’s discretion, appellant may participate in the hearing by use of a closed-circuit video 

teleconferencing.2 As set out in the March 22 and June 16, 2016 abatement orders, the trial court 

is directed to:

 

1 Documents filed in this Court reflect that the Honorable Sherman Ross presided over an 

April 7, 2016 abatement hearing.

2 If appellant is now incarcerated, he may appear by closed video teleconference. Any such 

teleconference must use a closed-circuit video teleconferencing system that provides for a 

simultaneous compressed full motion video and interactive communication of image and 

sound between the trial court, appellant, and any attorneys representing the State or 

appellant. On request, appellant and his counsel shall be able to communicate privately 

without being recorded or heard by the trial court or the attorney representing the State.
1) determine whether any portions of the December 18, 2013 hearing have been 

inaccurately recorded in the reporter’s record filed in this Court and whether the 

court reporter is able to prepare, certify, and file a transcription of those portions 

in a supplemental reporter’s record to be filed in this appeal;

2) determine whether any portion of the recording of the December 18, 2013 hearing 

is lost, destroyed, or inaudible; 

3) if any portions of the recording are lost, destroyed, or inaudible, determine 

whether those portions are necessary to the appeal’s resolution and whether the 

parties can replace those portions by agreement;

4) determine whether the exhibits from the December 18, 2013 hearing are lost or 

destroyed.

a) if any of the exhibits are lost or destroyed, determine whether those exhibits 

are necessary to the appeal’s resolution;

b) determine whether any lost or destroyed exhibits can be replaced by 

agreement of the parties, and if the exhibits cannot be replaced by agreement, 

determine whether those exhibits can be replaced by copies determined by the 

trial court to accurately duplicate with reasonable certainty the exhibits from 

the December 13, 2013 hearing;

5) make any other findings and recommendations the trial court deems appropriate; 

and

6) issue written findings of fact, conclusions of law, and recommendations as to 

these issues, separate and apart from any docket sheet notations.

If any portion of the trial proceedings has been inaccurately recorded in the reporter’s 

record on file with this Court but can be prepared, certified, and filed by the court reporter, the 

court reporter shall prepare, certify, and file a supplemental reporter’s record containing the 

missing or inaccurate portions of the trial proceedings no later than 30 days from the date of this 

order. If any of the exhibits are able to be located or have been lost or destroyed but can be 

replaced by agreement of the parties or the trial court, the court reporter shall file a supplemental 

exhibit volume to the reporter’s record containing the located or replaced exhibits no later than 

30 days from the date of this order.

The trial court shall have a court reporter, or court recorder, record any hearing. The trial 

court clerk is directed to file a supplemental clerk’s record containing the trial court’s findings, 

recommendations, and orders with this Court within 30 days of the date of this order. The court 

reporter is directed to file the reporter’s record of the hearings within 30 days of the date of this 

order.
The appeal remains 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 records that comply 

with our order are filed with the Clerk of this Court. 

It is so ORDERED.

Judge’s signature: /s/ Russell Lloyd

 Acting individually 

Date: August 16, 2016