In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-14-00101-CR

DAVID RAY PENNY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th District Court

Hopkins County, Texas

Trial Court No. 1323669

Before Morriss, C.J., Moseley and Burgess, JJ.
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O R D E R

David Ray Penny was convicted by a Hopkins County jury of continuous sexual abuse of 

a child and was sentenced to life imprisonment. Penny raises a single point of error, which may 

require a harm analysis, for which analysis we must review the entire record. The record 

includes what is portrayed as a video-recording of an interview of the complainant conducted at 

the Child Advocacy Center. It is obvious, from the use of five different computers during trial to 

attempt to play the video and audio components of the recording, that the recording was not 

made using a conventional recording system. The trial court eventually found a computer that 

would fully play the video. This Court has not been so lucky. We have used a number of videoplaying programs as well as some other programs that are designed to open a wide range of filed, 

but without success. Although we have been able to play the audio track, we have not managed 

to display any video component of the recording in our possession.

Under Rule 34.6(f)(3) of the Texas Rules of Appellate Procedure, if an exhibit is not 

available through no fault of appellant, we are required to reverse and order a new trial.

(f) Reporter’s Record Lost or Destroyed. An appellant is entitled to a 

new trial under the following circumstances:

(1) if the appellant has timely requested a reporter’s record;

(2) if, without the appellant’s fault, a significant exhibit or a 

significant portion of the court reporter’s notes and records has been lost or 

destroyed or--if the proceedings were electronically recorded--a significant 

portion of the recording has been lost or destroyed or is inaudible;

(3) if the lost, destroyed, or inaudible portion of the reporter’s 

record, or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and
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(4) if the lost, destroyed or inaudible portion of the reporter’s 

record cannot be replaced by agreement of the parties, or the lost or destroyed 

exhibit cannot be replaced either by agreement of the parties or with a copy 

determined by the trial court to accurately duplicate with reasonable certainty the 

original exhibit.

TEX. R. APP. P. 34.6(f)(3). In this case, State’s Exhibit One is only partially usable; its video 

component is effectively lost or destroyed.

To attempt to correct this loss or destruction, we abate the appeal to the trial court. The 

trial court should first determine whether the parties can replace the lost or nonfunctional portion 

of the exhibit by agreement of the parties. If they cannot agree, the trial court must determine 

whether a fully functional video recording of the interview purportedly on the exhibit can be 

provided that “duplicates with reasonable certainty the original exhibit.” TEX. R. APP.

P. 34.6(f)(4).

These matters shall be determined at a hearing, which shall occur within twenty-one days 

of the date of this order. The trial court’s findings shall be entered into the record of this case 

and presented to this Court in the form of a supplemental clerk’s record within fifteen days of the 

date of the hearing. The reporter’s record of the hearing shall also be filed in the form of a 

supplemental reporter’s record within fifteen days of the date of the hearing, along with a fully 

functional audio/video recording intended to be on the exhibit, should one be available.

All appellate timetables are stayed and will resume on our receipt of the supplemental 

clerk’s and reporter’s records. The submission date of the case is likewise stayed, and a new 

submission date will be set on the return of this case to this Court’s jurisdiction.
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IT IS SO ORDERED.

BY THE COURT

Date: January 28, 2015