Michael Ray Kerr v. the State of Texas ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-20-00034-CR
No. 02-20-00035-CR
MICHAEL RAY KERR, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 43rd District Court
Parker County, Texas
Trial Court Nos. CR19-0626, CR19-0627
ORDER
When Denise C. Phillips, official court reporter for the 43rd District Court,
filed the reporter’s record in these appeals, she certified to this court that she had
been unable to convert parts of State’s Exhibits 41 and 55 into a format or size
compatible with the requirements of the TAMES records submission portal (RSP).
The reporter’s record, including exhibits, must be filed electronically via the TAMES
RSP as mandated by Appendix C to the Texas Rules of Appellate Procedure and by
the Uniform Format Manual for Texas Reporters’ Records. Because Phillips did not
file State’s Exhibits 41 and 55 in these appeals electronically, this court ordered the
trial court clerk to deliver the originals of the exhibits to allow this court to confirm
that they could not be uploaded to the TAMES RSP.
Regarding State’s Exhibit 41, Phillips stated that she had been unable to upload
parts 2, 3, and 4 to the TAMES RSP because each part exceeded the file-size limit.1
State’s Exhibit 41 is a Blu-ray Disc, which requires a specific player to view. The
court does not own or have access to a Blu-ray player, and the court’s computers are
not equipped with the necessary hardware to do so. Consequently, we are unable to
review State’s Exhibit 41 in its current form. The court’s inability to view this physical
exhibit makes the court reporter’s duty to file the reporter’s record electronically even
more crucial in these appeals because without a full electronic record filed via the
TAMES RSP, the court essentially has no access to the contents of State’s Exhibit 41.
Phillips’s reason for not uploading parts 2, 3, and 4 of State’s Exhibit 41 to the
TAMES RSP was that the file size of each part was too large. The court reporter
explained in her certification that she had sought assistance from the State: “I emailed
the District Attorney’s Office and was told that they deemed splitting the exhibit with
[sic] tampering with the evidence produced at trial and recommend[ed] I not split it
and would not assist if I did. Our IT Department is not available to help court
1
The TAMES RSP’s file-size limit for audio or video files is 2 GB. Office of
Court Admin., TAMES RSP User Guide 5 (Version 3 Aug. 1, 2013),
https://rsp.txcourts.gov/training/TAMES-RSP-User-Guide.pdf.
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reporters with this task.” But the Uniform Format Manual for Texas Reporters’
Records encourages data compression and specifically provides, “If the recording is
too long to fit in one file, it may be broken into multiple files.” Unif. Format Manual for
Tex. Reporters’ Recs. § 8.10 (amended June 28, 2010),
https://www.txcourts.gov/media/244178/Uniform-Format-Manual-20100701.pdf;
see TAMES RSP User Guide 8 (“Files greater than the file size limit should be
separated into multiple smaller files.”) Therefore, the applicable rules specifically
require the court reporter, whether by data compression or by breaking the exhibit
into multiple files, to prepare each exhibit in a size compatible with the size limit of
the TAMES RSP.2
As to Exhibit 55, Phillips stated that although parts 1 through 9 were in an .avi
format that is compatible with the TAMES RSP, she did not upload it because she
had been “unable to open it utilizing several different video players.” State’s Exhibit
55 consists of video files in .avi format, which is a format supported by VLC media
player (VideoLAN Organization) or Windows media player (Microsoft). See Jud.
Comm. on Info. Tech., Tech. Standards § 3.2.C (Version 6.5 Oct. 2019),
https://www.txcourts.gov/media/1435816/technology-standards.pdf. Therefore, in
2
The court’s IT staff is available by phone to assist with questions about data
compression, breaking an exhibit into multiple files, or installing necessary software.
But, ultimately, the responsibility for obtaining the appropriate equipment, software,
and knowledge to file the reporter’s record electronically, as required by Appendix C
to the Texas Rules of Appellate Procedure and the Uniform Format Manual for Texas
Reporters’ Records, lies with the court reporter.
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its present format, State’s Exhibit 55 can be submitted electronically in compliance
with the requirements of the Rules of Appellate Procedure, the Uniform Format
Manual, and the TAMES RSP.
Accordingly, we return the original State’s Exhibits 41 and 55 to the trial court
clerk and order Phillips to upload these exhibits to the TAMES RSP in compliance
with the applicable rules no later than June 21, 2021. Tex. R. App. P. App. C , R. 2(f).
We direct the clerk of this court to send a notice of this order to Phillips, the
attorneys of record, the trial court judge, and the trial court clerk.
Dated June 9, 2021.
Per Curiam
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