Kirk DeWayne McClain v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00058-CR

KIRK DEWAYNE MCCLAIN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court
Childress County, Texas
Trial Court No. 6736, Honorable Dale A. Rabe, Presiding

May 21, 2024
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Kirk DeWayne McClain, appeals from the trial court’s judgment

adjudicating him guilty of aggravated sexual assault 1 and sentencing him to eighty years

in prison. The appellate record was originally due April 16, 2024, but the reporter’s record

has yet to be filed. By letter of April 24, 2024, we notified the reporter that it was overdue

and directed her to advise us of the status of same by May 6, 2024. Despite that, the

court received no communication.

1 See TEX. PENAL CODE ANN. § 22.021.
Accordingly, we abate the appeal and remand the cause to the trial court for further

proceedings. See TEX. R. APP. P. 35.3(c) (“The trial and appellate courts are jointly

responsible for ensuring that the appellate record is timely filed.”); 37.3(a)(2) (requiring

appellate courts to “make whatever order is appropriate to avoid further delay and to

preserve the parties’ rights” when the appellate record is not timely filed). On remand,

the trial court shall determine the following:

(1) what tasks remain to complete the filing of the reporter’s record;

(2) why the reporter has not completed the necessary tasks;

(3) what amount of time is reasonably necessary for the completion of
those tasks; and

(4) whether the reporter can complete the tasks within the time the trial
court finds reasonable.

Should the trial court determine that the reporter will require more than thirty days

to complete, certify, and file the reporter’s record, it shall arrange for a substitute reporter

to do so. The trial court is directed to enter such orders necessary to address the

aforementioned questions. So too shall it include its findings on those matters in a

supplemental clerk’s record and cause that record to be filed with this Court by June 11,

2024.

Should the reporter file the record on or before June 11, 2024, she is directed to

immediately notify the trial court of the filing, in writing, whereupon the trial court shall not

be required to take any further action.

It is so ordered.

Per Curiam

Do not publish.

2