the 361st District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
instant case, appellant, Santos Victor Ruiz Jr., was
convicted of continuous sexual abuse of a young child.
See Tex. Penal Code Ann. § 21.02 (West Supp.
2016). Ruiz filed his notice of appeal on August 1, 2016.
Subsequently, on March 22, 2017, Ruiz filed a motion for
extension of time to file his appellant's brief,
asserting that the briefing schedule needed to be reset due
to an incomplete Reporter's Record. In particular, Ruiz
complained that the Reporter's Record did not contain
transcripts from hearings conducted on June 30, 2016 and July
7, 2016. Accordingly, Ruiz argued that he cannot complete his
appellant's brief until he has a copy of the complete
Reporter's Record. We granted Ruiz's request to reset
the briefing schedule and ordered him to file his
appellant's brief within thirty days after the filing of
a Supplemental Reporter's Record containing the
transcripts from the June 30, 2016 and July 7, 2016 pre-trial
on May 3, 2017, we received a letter from Court Reporter
Wendy L. Kirby about this matter. In her letter, Ms. Kirby
expressed difficulty in preparing, certifying, and filing the
Reporter's Record pertaining to the June 30, 2016 hearing
held before Magistrate Glynis Gore, a judge who has since
resigned her post due to medical issues. According to Ms.
Kirby, an electronic recording, rather than a stenographic
recording, was made of the hearing. See Tex. R. App.
P. 34.6(a)(2). The magistrate court informed Ms. Kirby
"that they are not responsible for transcribing those
proceedings and attached the electronic recording file to
their email response." Ms. Kirby responded that she is
"unable to transcribe and certify the proceedings"
because she was not present for the June 30, 2016 hearing.
Ms. Kirby has also indicated that the transcript for the
July 7, 2016 hearing is prepared and ready to be filed. By a
separate order, we order Ms. Kirby to file this record with
this Court within seven days.
16, 2017, we requested responses from the State and Ruiz
"detailing whether and how the Court may obtain an
official Reporter's Record, within the confines of the
Texas Rules of Appellate Procedure, in this appeal and what
must occur in this appeal if a Reporter's Record of the
June 30, 2016 hearing cannot be prepared and filed."
Both Ruiz and the State responded to our May 16, 2017 letter
response, Ruiz argued that he is entitled to a new trial
under Texas Rule of Appellate Procedure 34.6(f) because the
unavailability of the complete Reporter's Record was not
his fault, and because indigent criminal defendants are
entitled to a free and complete trial record in their appeal.
See id. at R. 34.6(f); see also Griffin v.
Illinois, 351 U.S. 12, 19-20, 76 S.Ct. 585, 590-91, 100
L.Ed. 891 (1956). The State responded that Ruiz did not
request a court reporter or object to the reporter's
failure to record the proceedings; therefore, any right to
the record of the June 30, 2016 hearing was forfeited. As
such, the State contended that Ruiz's request for a new
trial should be denied. The State also asserted that the
record from the June 30, 2016 hearing is not lost.
a specific request by a party, the court has no duty to
provide an official court reporter for the proceedings.
See Tex. Gov't Code Ann. § 52.046(a) (West
2013). However, in his response, Ruiz highlights Texas Rule
of Appellate Procedure 13.1, which provides, in relevant
part, that "[t]he official court reporter or court
recorder must: (a) unless excused by agreement of the
parties, attend court sessions and make a full record of the
proceedings." Tex.R.App.P. 13.1. Essentially, Ruiz
suggests that the duties expressed in Texas Rule of Appellate
Procedure 13.1 trump section 52.046(a) of the Government
Code, thus creating a mandatory duty to create a full record
of the proceedings unless affirmatively waived.
similar circumstance, the Fourteenth Court of Appeals has
stated the following regarding an argument that Rule 13
trumps section 52.046(a):
The Texas Court of Criminal Appeals has held otherwise.
See Davis v. State, 345 S.W.3d 71, 77 (Tex. Crim.
App. 2011) (noting that the defendant did not request a court
reporter under 52.046(a) and, regardless, "even if Rule
13.1 does impose a preliminary burden on the
trial court to ensure the presence of a court
reporter at all proceedings, our case law also imposes an
additional, independent burden on the appealing party to make
a record demonstrating that error occurred in the trial
court. This includes a burden to object when the official
court reporter is not present, as he is required to be under
Rule 13.1, in order to preserve any error that may occur for
appeal." (emphasis in original)); Valle v.
State, 109 S.W.3d 500, 508-09 (Tex. Crim. App. 2003)
(holding that even under Rule 13.1 it was incumbent upon the
defendant to object if bench conferences were not recorded in
order to preserve error for appeal). Therefore, because
appellant did not request a court reporter or object to the
reporter's failure to record the proceedings, any right
to a record of the punishment hearing was forfeited.
Satterfield v. State, 367 S.W.3d 868, 871 (Tex.
App.-Houston [14th Dist.] 2012, pet. ref'd).
Amarillo Court of Appeals has also noted the following
regarding the absence of a hearing transcript:
Second, we agree with the State that error preservation
requirements are fatal to appellant's contention on
direct appeal. Appellant's contention runs afoul of error
preservation requirements on two levels. First, on a
procedural level, if appellant is correct that the court
reporter failed to record challenges for cause or other
events leading to the dismissal of a member of the venire,
and if appellant desired them to be recorded, it was for him
to raise a complaint with the trial court. See Valle v.
State, 109 S.W.3d 500, 508-09 (Tex. Crim. App. 2003)
(holding party must object in trial court to preserve
appellate complaint about failure to record bench
conferences); cf. Davis v. State, 345 S.W.3d 71, 77
n.22 (Tex. Crim. App. 2011) (quoting George E. Dix &
Robert O. Dawson, Texas Practice: Criminal Practice and
Procedure § 43.302 (2d ed. 2001), at 576 ("a party
should not be permitted to ignore at the time a court
reporter's dereliction of duty and later rely on that
dereliction to challenge a conviction")). The appellate
record contains no objection presented to the trial court
complaining of any matter related to the court reporter or
the taking of the record.
Ham v. State, 355 S.W.3d 819, 822-23 (Tex.
App.-Amarillo 2011, pet. ref'd); see Newman v.State, 331 S.W.3d 447, 450 (Tex. Crim. App. 2011)
("The record appellant presented, however, contains no
reporter's record of any hearing that may have occurred
on June 26, 2008. This record also does not show whether
appellant objected in the event that the court reporter was
not present to transcribe the June 26, 2008 hearing. . . . We
decide that appellant has failed to present a record
demonstrating that the trial court's decision should be
overturned. With appellant having had a hearing, having lost
in the trial court on his speedy-trial claim, and then having