Order filed January 24, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00019-CR

__________

RICKEY ELLISON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 331st District Court

Travis County, Texas

Trial Court Cause No. D-1-DC-09-900320

O R D E R

In this cause, Appellant was convicted of the 1981 murder of Jimmy Milo. 

Appellant contends in his first appellate issue that the trial court violated his right 

to confront and cross-examine the witnesses against him when it admitted 

testimonial hearsay of a forensic analyst, Fred Rymer. Appellant contends in his 

second issue that the same evidence was inadmissible hearsay under the Texas 

Rules of Evidence.
2

Appellant asserts in his first two issues that the alleged evidentiary errors 

occurred during the ballistics testimony of Calvin S. Story, Jr. The record on 

appeal indicates that Rymer testified in Appellant’s 1982 trial for the attempted 

capital murder of Charles Lacey and that Rymer died shortly after that trial. The 

jury convicted Appellant in that cause, which was styled The State of Texas v. 

Rickey Ellison, No. 62,502, in the 167th District Court of Travis County, Texas. 

Appellant appealed his 1982 conviction to the Austin Court of Appeals in cause 

no. 3-83-047-CR. The Austin court affirmed the conviction.

We have obtained a CD copy of the Austin court’s file in cause no. 3-83-

047-CR. The reporter’s record shows that Rymer testified and that he was crossexamined by Appellant’s counsel in the 1982 trial. The State contended that 

Appellant shot Lacey and Milo with the same gun. The ballistics evidence in the 

1982 trial was similar to the evidence in this cause. Apparently, at the trial of the 

instant cause, Appellant’s counsel had a copy of the trial record from Appellant’s 

1982 trial. The reporter’s record in this cause refers to a “CD/Trial Record 

(Charles Lacey, victim)” as Defendant’s Exhibit 7. However, the exhibit is not 

included in the record.

We abate this appeal to allow (1) the court reporter to file a supplemental 

reporter’s record containing Defendant’s Exhibit 7—“CD/Trial Record (Charles 

Lacey, victim)”—if such an exhibit exists; (2) the parties to inform this court, by 

letter, whether they had a copy of the 1982 trial record, including Rymer’s 

testimony; (3) Appellant’s counsel to file a supplemental brief related to the effect, 

if any, that Appellant’s opportunity to cross-examine Rymer and crossexamination of Rymer in the 1982 trial have on Appellant’s right of confrontation 

and cross-examination claims and hearsay claims raised in his first two appellate 

issues in this cause; and (4) the State to file a supplemental brief. The 

supplemental reporter’s record or a response that the exhibit does not exist is due 
3

on or before February 3, 2014. The parties’ letter response is due on or before 

February 3, 2014. Appellant’s supplemental brief is due on or before March 10, 

2014. The State’s supplemental brief is due within thirty days of Appellant’s 

counsel filing his supplemental brief.

The appeal is abated.

PER CURIAM

 

January 24, 2014

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.