Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 52nd District Court of Coryell County, Texas.
Justices Contreras, Benavides, and Longoria
David Johnson Sr. has appealed his conviction for sexual
assault following the revocation of his community
supervision. See Tex. Penal Code Ann. § 22.011
(West, Westlaw through 2015 R.S.). We conclude that appellant
is entitled to a new trial because a significant portion of
the court reporter's record has been lost or destroyed,
without any fault by appellant, and that portion of the
record is necessary to the appeal's resolution.
See Tex. R. App. P. 34.6(f). Accordingly, we reverse
and remand for a new trial.
Lost or Destroyed Record
appellant is entitled to a new trial if, through no fault of
the appellant, a reporter's record is lost or destroyed,
and the portion lost or destroyed is necessary to the
resolution of the appeal and cannot be replaced by agreement
of the parties. Tex.R.App.P. 34.6(f); see Nava v.
State, 415 S.W.3d 289, 305 (Tex. Crim. App. 2013);
Castillo v. State, No. 01-13-00632-CR, 2015 WL
1778776, at *2, __S.W.3d__, __(Tex. App.-Houston [1st Dist.]
April 16, 2015, no pet.); Mendoza v. State, 439
S.W.3d 564, 566 (Tex. App.- Amarillo 2014, no pet.). If the
missing portion of the reporter's record is not necessary
to the resolution of the appeal, the appellant is not
entitled to a new trial. See Tex. R. App. P.
34.6(f); Nava, 415 S.W.3d at 306; Routier v.
State, 112 S.W.3d 554, 571-72 (Tex. Crim. App. 2003).
The provision in Rule 34.6 requiring an appellant to show
that the missing portion of the record is necessary to the
appeal is essentially a requirement that the appellate court
perform a harm analysis. Nava, 415 S.W.3d at 306;
Bryant v. State, 464 S.W.3d 99, 101 (Tex.
App.-Houston [14th Dist.] 2015, no pet.). We review a trial
court's findings of fact for an abuse of discretion,
while we review de novo its conclusions of law. See,
e.g., State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.
App. 2006); Coulter v. State, No. 01-15-00018-CR,
2016 WL 7369197, at *4, __S.W.3d__, __(Tex. App.- Houston
[1st Dist.] Dec. 15, 2016, no. pet. h.).
Court has abated this appeal on two different occasions. We
first abated the appeal because the reporter's record had
not been timely filed, and we remanded it to the trial court
to determine: (1) whether appellant had abandoned his appeal;
(2) if appellant's attorney of record continued to
represent appellant and would diligently pursue this appeal;
and (3) if the reporter's record, or any part thereof,
had been lost or destroyed. The trial court made findings and
conclusions regarding some of these issues. According to the
trial court's findings, appellant had not abandoned his
appeal and appellant's attorney would continue to
represent appellant and diligently pursue this appeal.
However, despite strenuous efforts to ascertain the status of
the record, the trial court was unable to determine the
status of the record and requested additional time to make
further findings regarding the record. The trial court also
requested clarification regarding the status of this
continued the abatement of this appeal and directed the trial
court to determine what steps were necessary to ensure the
prompt preparation of a reporter's record, or whether the
reporter's record had been lost or destroyed and
appellant was entitled to a new trial. We directed the trial
court to conduct a hearing to determine: (1) if the appellant
had timely requested a reporter's record; (2) if, without
the appellant's fault, a significant exhibit or a
significant portion of the court reporter's notes and
records had been lost or destroyed or-if the proceedings were
electronically recorded-a significant portion of the
recording had been lost or destroyed or is inaudible; (3) if
the lost, destroyed, or inaudible portion of the
reporter's record, or the lost and destroyed exhibit, was
necessary to the appeal's resolution; and (4) if the
lost, destroyed, or inaudible portion of the reporter's
record could not be replaced by agreement of the parties, or
the lost or destroyed exhibit could not be replaced either by
agreement of the parties or with a copy determined by the
trial court to accurately duplicate with reasonable certainty
the original exhibit. See Tex. R. App. P. 34.6(f).
remand, the trial court found that a significant portion of
the record had been lost or destroyed through no fault of the
appellant, the parties could not agree on a replacement, and
that the missing portion of the record was necessary to the
appeal. Appellant's counsel prepared supplemental
findings of fact and conclusions of law at the trial
court's direction. The trial court entered the findings
and conclusions as proposed by appellant. The trial
court's second supplemental findings of fact and
conclusions of law provide as follows:
1. The Appellant is David Johnson Sr.
2. The Appellant has not abandoned his appeal.
3. Bobby Dale Barina was court appointed to represent the
Appellant on Appeal.
4. Bobby Dale Barina filed and participated in a Motion for
New Trial and partial relief was granted.
5. The Appellant's attorney continues to represent the
6. The Appellant's attorney shall continue to diligently
pursue this appeal.
7. The Appellant is and has been indigent throughout this
8. The Appellant's attorney timely requested the
9. The Appellant is not at fault for the loss of all the
exhibits and of a significant portion of the reporter's
10. The Appellant plead[ed] not true to allegations in the
State's Motion to Adjudicate.
11. The Appellant cannot agree to replace any portion of the
lost and ...