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Hawkins v. State

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ABATEMENT AND REMAND

Pursuant to a not guilty plea, appellant Walter Burton Hawkins was found guilty of (1) aggravated kidnapping with an affirmative finding on use of a deadly weapon and punishment was assessed at ten years, probated, and (2) guilty of aggravated assault with an affirmative finding on use of a deadly weapon and punishment was assessed at five years confinement. Appellant timely perfected this appeal. The clerk’s record and reporter’s record have both been filed, as well as appellant’s brief.

By its third motion for extension of time to file its brief, the State asserts that the reporter’s record does not contain appellant’s statement but instead mistakenly includes exhibit number 34 which is the statement of appellant’s co-defendant, Donald Thompson. The State further asserts that although counsel for both parties agree that appellant’s statement was admitted into evidence and mistakenly omitted from the reporter’s record, they are unable to agree to correct the record by agreement according to Rule 34.6(e)(1) of the Texas Rules of Appellate Procedure. Pursuant to Rule 34.6(e)(3), the State requests that the court reporter be ordered to conform the record to what occurred at trial. Rule 34.6(e)(3) provides that after the reporter’s record has been filed in this Court, we may submit a dispute regarding the record to the trial court for resolution. Thus, we now abate this appeal and remand the cause for further proceedings.

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