Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 6, 2017

DAVID JOHNSON SR., Appellant,
v.
THE STATE OF TEXAS, Appellee.

         On appeal from the 52nd District Court of Coryell County, Texas.

          Before Justices Contreras, Benavides, and Longoria

          MEMORANDUM OPINION

          DORI CONTRERAS Justice

         Appellant 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.).[1] 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.

         I. Lost or Destroyed Record

         An 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.).

         II. Analysis

         This 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 abatement.

         We 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).

         On 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:

         FINDINGS OF FACT

         APPELLANT

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 appellant.
6. The Appellant's attorney shall continue to diligently pursue this appeal.
7. The Appellant is and has been indigent throughout this appeal.
8. The Appellant's attorney timely requested the clerk's record.
9. The Appellant is not at fault for the loss of all the exhibits and of a significant portion of the reporter's record.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.