Fourth Court of Appeals

San Antonio, Texas

October 5, 2018

No. 04-18-00002-CR

Larry Donnell GIBBS,

Appellant

v.

The STATE of Texas,

Appellee

From the 49th Judicial District Court, Webb County, Texas

Trial Court No. 2015 CRR 001320 D-1

Honorable Jose A. Lopez, Judge Presiding

O R D E R

On September 28, 2018, appellant filed a motion to supplement the reporter’s record. In 

the motion, appellant contends the final volume of the reporter’s record consists of State’s 

Exhibits 1, 30, 65A, 65B, and 80, which are video and audio files originally contained in five 

compact discs. Appellant contends the court reporter converted these exhibits from five compact 

discs to forty-two digital files that were filed with this court. According to appellant:

It appears from the [trial] transcripts that not all files were shown to the jury and 

that some files are either missing or the numbering by Ms. [Cynthia] Lenz [the 

court reporter] is incorrect. [Appellant’s counsel] reached out to both Mr. Philip 

del Rio (Prosecutor) and Mr. Fred Trevino (Defense Attorney) but they were not 

able to assist appellant’s counsel with the identification of these exhibits.

Appellate Counsel did not serve as trial counsel for appellant and is therefore 

unfamiliar with the proceedings at the trial level. 

Appellant will be raising issues involving these exhibits.

Because the original five compact discs were not filed in this court, we are unable to 

determine whether the reporter’s record currently contains all of State’s Exhibits 1, 30, 65A, 

65B, and 80 and whether the forty-two parts of those exhibits are accurately labeled. The court 

reporter filed “State’s Exhibit 1,” which contains digital files labeled “State’s Exhibit 1” and 

“State’s Pretrial Exhibit 1” Parts 001 through 012. State’s Exhibits 65A and 65B contain digital 
files labeled Parts 001 through 012, but neither exhibit contains a Part 008. We are also unable to 

determine from the reporter’s record currently before us which parts of State’s Exhibits 1, 30, 

65A, 65B, and 80 were shown to the jury at trial. 

Accordingly, pursuant to Texas Rule of Appellate Procedure 34.6(f), we ABATE this 

appeal to the trial court and ORDER the trial court to conduct a hearing to answer the following 

questions:

(1) Whether State’s Exhibit 1 consists of the digital file labeled “State’s Exhibit 

1” and/or the files labeled “State’s Pretrial Exhibit 1” and subparts;

(2) Whether Part 008 of State’s Exhibits 65A and 65B are missing and, if so, 

whether those parts have been lost or destroyed or can be added to the 

reporter’s record by supplementation;

(3) Whether the reporter’s record contains all of State’s Exhibits 1, 30, 65A, 65B, 

and 80 and, if not, whether any parts of these exhibits have been lost or 

destroyed or can be added to the reporter’s record by supplementation;

(4) Whether State’s Exhibits 1, 30, 65A, 65B, and 80 and their subparts are 

accurately labeled in the reporter’s record, consistent with their labeling at 

trial and on the five compact discs; and

(5) Which parts of State’s Exhibits 1, 30, 65A, 65B, and 80 were shown to the 

jury at trial.

The trial court may, in its discretion, receive evidence on these questions by sworn 

affidavit from the court reporters who transcribed the trial proceedings, including Ms. Cynthia 

Lenz. The trial court shall, however, order Mr. Fausto Sosa, Mr. Fred Trevino, and Mr. Philip del 

Rio to be present at the hearing.

The trial court is further ORDERED to file supplemental clerk’s and reporter’s records in 

this court, within thirty days of the date of this order, which shall include: (1) a reporter’s record

of the hearing and copies of any documentary evidence admitted, and (2) written findings of fact 

addressing the above enumerated questions. All appellate filing dates are ABATED pending 

further orders from this court.

_________________________________

Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said 

court on this 5th day of October, 2018.

___________________________________

Keith E. Hottle

Clerk of Court