Order entered September 11, 2013

In The

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-12-01199-CR

MARK MCCAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4

Dallas County, Texas

Trial Court Cause No. F11-00694-K

ORDER

The Court REINSTATES the appeal.

On June 12, 2013, we ordered the trial court to make findings regarding the whether the 

clerk’s record could be supplemented with certain documents and whether hearings were 

conducted on certain motions. 

As to the missing documents from the clerk’s file, we ADOPT the trial court’s findings 

that: (1) a member of the Dallas County District Attorney’s Office located copies of the 

documents that did not bear a file-stamp; (2) appellate counsel, on consultation with trial 

counsel, located file-stamped copies of (a) the motion to dismiss the indictment for attempted 

theft for failure to state an offense due to absence of the essential element of ownership, (b) 

motion to quash indictment, (c) motion to dismiss the indictment as impermissibly vague and for 
failure to state an offense and memorandum in support, and (d) motion to dismiss the indictment 

for improper aggregation and for lack of jurisdiction; (3) these documents are file-stamped April 

2, 2007 and appear to be complete; (4) the documents were properly filed under prior cause 

numbers in the case, adopted into the record in this cause number by the trial court, and can be 

included in a supplemental clerk’s record; (5) appellant’s trial counsel also located defendant’s 

motion to dismiss on grounds of the denial of equal protection and equal rights and privileges of 

the law and the abridgement of the constitutional and statutory function of the grand jury, which 

is file-stamped April 2, 2007; (6) the April 2, 2007 motion contained in trial counsel’s file does 

not contain the voluminous exhibits that were attached to the copy of the motion contained in the 

prosecutor’s file; (7) the copy of the April 2, 2007 motion, with exhibits, was properly filed, 

adopted in to the record in this cause number by the trial court, and the copy, including exhibits, 

obtained from the prosecutor’s file can be included in a supplemental clerk’s record; and (8) 

neither the prosecutor’s nor trial counsel’s files contained the motions to quash the indictment for 

failure to specify manner and means, thus the record cannot be supplemented with that 

document.

As to the reprorter’s records of the hearings conducted in the case, we ADOPT the 

findings that: (1) Janice Garrett, official court reporter of the Criminal District Court No. 4, 

requires additional time to research and prepare the supplemental reporter’s record due to a hand 

injury; and (2) Ms. Garrett requested sixty days from the September 9, 2013 hearing to file the 

supplemental reporter’s record.

We ORDER the Dallas County District Clerk to file, within TWENTY-ONE DAYS of 

the date of this order, a supplemental record containing the trial court’s September 9, 2013 

written findings of fact and the following motions:
• motion to dismiss the indictment for attempted theft for failure to state an offense due to 

absence of the essential element of ownership;

• motion to quash indictment;

• motion to dismiss the indictment as impermissibly vague and for failure to state an 

offense and memorandum in support;

• motion to dismiss the indictment for improper aggregation and for lack of jurisdiction;

• motion to dismiss on grounds of the denial of equal protection and equal rights and 

privileges of the law and the abridgement of the constitutional and statutory function of 

the grand jury, with exhibits.

We ORDER court reporter Janice Garrett to file, by FRIDAY, NOVEMBER 15, 2013, 

the remaining portions of the reporter’s record and all exhibits. We remind Ms. Garrett that as 

official court reporter, it is her obligation to notify and coordinate with all court reporters who 

recorded proceedings in this case, and that Ms. Garrett will be responsible for filing the 

complete record. Because this appeal has already been pending for one year and appellant’s 

brief cannot be filed until the record is complete, no further extensions will be granted. If Ms. 

Garrett does not file the complete remaining portions of the reporter’s record by the date 

specified, we will order that she not sit as a court reporter until she has filed the complete record 

in this appeal.

We DIRECT the Clerk to send copies of this order, by electronic transmission, to the 

Honorable Dominique Collins, Presiding Judge, Criminal District Court No. 4; Janice Garrett, 

official court reporter, Criminal District Court No. 4; Gary Fitzsimmons, Dallas County District 

Clerk; Dallas County District Clerk’s Office, Criminal Records Division; and counsel for all 

parties.

/s/ DAVID EVANS 

JUSTICE