Court of Appeals of Texas, First District, Houston
District Court of Galveston County, Trial court case number:
SECOND ORDER OF ABATEMENT
C. Higley, Judge
court case number: 11-CV-0336 Trial court: 405th District
Court of Galveston County This Court's May 9, 2019 Order
had reinstated this case following an abatement for the court
reporter, Cylena Korkmas, to file a supplemental
reporter's record containing the 8 exhibit volumes with
the missing Wood Exhibits 29-33 and 40. After being granted
three extensions to file appellant's brief until August
22, 2019, appellant, George Wood, filed this opposed
"Motion to Abate Appeal to Allow Court Reporter to
Supplement with Trial Witness Testimony Omitted from
Reporter's Record ("Motion to Abate"), or
Alternative Motion for Order Directing Court Reporter to
Supplement Omitted Testimony."
"Motion to Abate" contends that an abatement is
needed to allow the court reporter to correct or supplement
the reporter's record to include all witness testimony
from the trial, specifically Tiffany Lyons and Gina Enriquez.
Ms. Lyons was presented by appellant's trial counsel
through reading partial excerpts from her deposition
transcript, but the court reporter did not transcribe it. Ms.
Enriquez's deposition had been videotaped and was played
at the trial in its entirety, but the court reporter did not
transcribe it, but her deposition transcript and video were
admitted. Appellant stated that he had already contacted the
court reporter regarding the missing testimony from Lyons,
but Ms. Korkmas informed counsel that she was unable to find
a highlighted deposition transcript.
reviewing Volume 4, page 52, of the reporter's record, it
appears that Lyons's deposition was read into the record,
but transcribed only as "(Deposition of Tiffany Lyons
read)," without the actual, excerpted lines transcribed.
By contrast, Volume 6, page 38, of the reporter's record
shows that Enriquez's deposition was played at trial and
transcribed as "(Gina Enriquez's video deposition
played)," but her deposition transcript and video were
admitted as Wood Exhibits 40 and 40A, respectively. Texas
Rule of Appellate Procedure 34.6(d) provides that, "[i]f
anything relevant is omitted from the reporter's record,
the trial court, the appellant court, or any party may by
letter direct the official court reporter to prepare,
certify, and file in the appellate court a supplemental
reporter's record containing the omitted items."
Tex.R.App.P. 34.6(d). Rule 34.6(e)(2) provides that,
"[i]f the parties cannot agree on whether or how to
correct the reporter's record so that the text accurately
discloses what occurred in the trial court and the exhibits
are accurate, the trial court must-after notice and
hearing-settle the dispute." Tex.R.App.P. 34.6(e)(2).
Rule 34.6(e)(3) provides that, "[i]f the dispute arises
after the reporter's record has been filed in the
appellate court, that court may submit the dispute to the
trial court for resolution," and the trial court must
then proceed under subparagraph (e)(2). Tex.R.App.P.
the Court GRANTS appellant's
"Motion to Abate." This appeal is
ABATED and REMANDED to the
trial court for a hearing to determine whether the
reporter's record filed in this Court, specifically
Volume 4, page 52, missing the actual, excerpted lines of
Tiffany Lyons's deposition transcript, and Volume 6, page
38, missing the deposition transcript of Gina Enriquez is
accurate, or whether it being admitted as Wood Exhibit 40 is
sufficient. Tex.R.App.P. 34.6(e)(3). If there is "any
inaccuracy," the trial court must issue findings of fact
and conclusions of law and "must order the court
reporter to conform the reporter's record (including text
and any exhibits) to what occurred in the trial court, and to
file certified corrections in the appellate court."
court coordinator of the trial court shall set a hearing date
within 30 days of the date of this order and
notify the parties and the court reporter, Cylena Korkmas.
The trial court shall have a court reporter record the
hearing. The trial court clerk is directed to file a
supplemental clerk's record containing the trial
court's findings of fact and conclusions of law, if any,
and any orders with the Clerk of this Court within 10
days of the date of the hearing. The court reporter
is directed to file the supplemental reporter's record of
the hearing within 10 days of the date of the
appeal is abated, treated as a closed case, and removed from
this Court's active docket. This appeal will be
reinstated on this Court's active docket when the
supplemental clerk's record, supplemental reporter's
record, and abatement hearing record, if any, are filed in
this Court. Appellant's alternative motion ...