## NUMBER 13

- 17

- 00119

- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

- EDINBURG

L EONARDO VASQUEZ , Appellant,

v.

STATE OF TEXAS , Appellee

.

On appeal from the 138 th District Court of Cameron County, Texas.



## ORDER ABATING APPEAL

Before Chief Justice Valdez and Justice s Benavides and Longoria Order Per Curiam

Appellant Leonardo Vasquez appeal s his conviction for aggravated kidnapping

.
See T EX

. P ENAL C ODE A NN . § 20.04(b) (West, W estlaw through 2017 1st C.S.). W e2 ABATE the case and REMAND it to the trial court for further proceedings consistent with

this order.

On February 23, 2017
, appellant filed with the trial court a r equest for preparation
of the reporter’s record. See T EX

. R. A PP

. P. 34.6(a) & (b) (requiring the reporter’s record
to include “any of the exhibits that the parties to the appeal designate” by written request
timely filed with the trial court clerk). In his request
, appellant asked that “[a]ll exhibits

offered o r introduced into evidence” be prepared for inclusion in the reporter’ s record. On

June 23, 2017 , the official court reporter filed with this Court a 3

- volume reporter’s record
without including an Exhibit V olume. T he court reporter advised that
the [r] eporter’s [r]ecord [v] olume 2 indicates that State’s Exhibits 1

- 6 were offered by the Prosecutor and admitted by the Court. In reading the Record, the Prosec utor does not specify in detail what each exhibit consisted of. I have do ne due diligence in looking for these exhibits in the trial court files and th ere are no exhibits that exist. There are not any documents with Exhibi t stickers or handwritten notes specifying an exhibit. Therefore, this [r] epor ter’s [r] ecord will not con tain a volume for Exhibits

.
The appellate record in this case is incomplete in that i t is missing trial exhibits

. Accordingly, the appeal is ABATED and REMANDED to the trial court. In accordance
with Rule 34.6(f)(4) of the Texas Rules of Appellate Pro cedure, the trial court is directed

to c onduct a hearing to determine: (1) if appellant has timely requested a reporter’s
record, including a proper designation of exhibits; (2) if, without appellant’s fault,
significant exhibits have been lost or destroy ed; (3) if the lost and destroyed exhi bits are
necessary to the appeal’s resolution; 1 and (4) if the lost or destroyed exhibit s cannot be

1 On appeal, a ppellant argues , among other things, that the trial court erred by failing to approve in writing his consent to stipulate to evidence , as required by article 1.15 of the Texas Code of Criminal Procedure. See T EX

. C ODE C RIM

. P ROC

. A NN . § 1.15 (West, Westlaw through 2017 1st C.S.) ( providing that3 replaced either by agreement of the parties or with copies determined by the trial court to
accurately duplicate with reasonable certainty the original exhibit s

. See T EX

. R. A PP

. P

. 34.6(f).
The trial court is directed to forward the record of the proceedings, including any
orders and findings, to this Court within thirty (30) days of the date of this order, or to
notify this Court within such period indicating a date by w hich the trial court can comply

. The case is ABATED and REMANDED to the trial court for further proceedings consistent
with this order. The case will be reinstated upon further order of this Cour t.

PER CURIAM

Do n ot p ublish. T EX

. R. A PP

. P. 47.2(b).

Delivered and filed the 8th d ay of March, 2018

.

there must be sufficient evidence to support a defendant’s conviction, which may be accomp lished through a stipulation to evidence, consented to by a defendant and “ approved by the court in writing ”) (emphasis added); see also McClain v. State , 730 S.W.2d 739 ( Tex. Crim. App. 1987) ( concluding that evidence stipulated to by defendant could not be considered in determining whether there was sufficient evidence to support defendant’s conviction, as required by article 1.15, where the defendant’s consent to stipula te was not signed by the trial judge and where no other evidence was presented to substantiate guilt); Ybarra v. State , 93 S.W.3d 922, 927 (Tex. App.

— Corpus Christi 2002, no pet.) (concluding that article 1.15 error stemming from the trial judge’s failure to sign defendant’s consent to stipulate was harmless where, independent of any stipulated evidence, the defendant’s signed judicial confession was admitted into evidence at the plea hearing ).