# 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 th e se exhibits from five compact
discs to forty

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

It appears from the [tr ial] 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. Fr ed 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 leve l.

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

. T he court reporter filed “State’s Exhibit 1,” which contains digital files labeled “State’s Exhibit 1” and

“State’s Pretrial Exhibit 1 ” Part s 001 through 012. State’s Exhibits 65 A and 65B contain digitalfiles labeled Parts 001 through 012

, but neither exhibit contain s 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 E xhibits 1, 30, 65A, 65B,

and 80 and, if not, whether any part s 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 thirt y 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 hereun to set my hand and affixed the seal of the said

court on this 5th day of October, 2018

.

___________________________________ K eith E. H ottle

Clerk of Court