NO. 07-03-0024 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L B JANUA RY 14, 2004

______________________________ TOM RICH ARD DOY LE, JR., Appellant
v. THE STATE OF TEXAS , Appellee

_________________________________ FROM THE 359 TH DISTRICT COURT OF MONTGOMERY COUNT Y; NO. 02-05-0309 0-CR; HON. JAMES H. K EESHAN, JR., PR ESIDING

_______________________________ ABATEMENT AND REMAND

_______________________________ Before JOHNSON, C.J., QUINN and CAMPBELL, JJ. Pending before this court is a m otio n to aba te this cause filed b y TomRichard Doyle, Jr. (appellant). Appellant requests that w e rema nd the cause to the 359 th District Court of Montgom ery County, Tex as (trial court) for

a hearing. The reason for h is request is that the clerk’s record is m issing a purporte d ju ry notedelivered tothe trial co urtand its purported response to the note. Appellant contends that the note is i mportant to his case2

because it m ay in volve “s tac king ” of his sen ten cesw hich m ay b e im per m iss ible “under the
s tatute and ap plica ble caselaw .” O n De cem ber 30, 200 3, w

e dir ected t he p art ies, via letter, to d ete rm ine w het her the y c ould stipulate per Texas Rule of A ppellate P rocedure 34.5(e) to the contents of the pu rported jury note. The State resp onded by bas icall y stating that no one in volved i n the trial had a reco llection of any jury note. Appellant responded by stating that in discussing the m atter with trial couns el there is a belief that there were “at least th ree jury notes, and that at least one of them involved the guilt/innocence phase of the trial.” Furthermore in speaking with one of the j urors in the case, appellant was allegedly told that 1) at least one j uror “remem bered a note a nd respons e regarding ‘stac king,’ a nd also rem em bered th ere might hav e been a couple of other notes” and 2) that “the j ury/court com munications [w ere] left on thetab le in the j ury room.”Ne edle ss to s ay, thepar tiesdid not

info rm this

court of any agreem ent to stipulate to the contents of

the note. Consequentl y, we abate this appeal and remand the cause to the t rial court f o r furth er proce edings. Upon rem and, the trial court shall imm ediately cause notice of a hearing to be given and, thereafter, conduc t a hearing to determ ine the following: 1. whether t he jury ex

ecuted any notes w hich were for warded to t he trial court to review

and answer; 2. if such notes w

ere executed, whether th e trial court re sp on de d t o t he m; and, 3. if such notes and respons es were m ade, wheth er they can be located and included in the appellate record.3

If such notes and res ponses were ma de but cannot be found, the tri al court i s also directed to 1) determ ine whe ther the con tents of the m issing jury notes and responses can be
acc ura tely

re-created, 2) re-create the con t ents of b oth thenot es a nd r esp ons es, if possible, and 3) include their re-creation in a sup plem ent al cl erk ’s record pur sua nt to Ru le 34.5 (e) of the Texas Rules of Appellate Procedure. We furth er direct th e trial court to issue findings of fact and conclusions of law addressing the foregoing subj ects. Furtherm ore, th e tr ia l court shall also cause to be developed 1) a sup plem ental clerk 's recor d containi ng the findi ngs of fact and conclusions of law alluded to as well as any re-creation of the notes and responses it derived and 2)
a reporter's record transcribing the evidence and argum ent p re sented at the aforem entioned hearing. Additionally, the trial court s hall cause t he supp leme ntal clerk's record to be filed with the cler k of this c our t on or b efo re F ebr uar y 13 , 20 04. Sh ould additional time be needed to perfor m these tasks, the trial court m ay request sam e on or before February 13, 2004. Finally, al l briefing deadli nes are stayed until further order fromthe court. It is so ordered. Pe r C ur i am
Do not publish.