in the Interest of J. A. N., a Child , 563 S.W.3d 913 ( 2018 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-17-00066-CV
IN THE INTEREST §
Appeal from the
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OF J.A.N., A CHILD 388th District Court
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of El Paso County, Texas
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(TC# 2015DCM5440)
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OPINION
This appeal is before the Court to determine whether Appellant, Lisa Andrea Lagos, is
entitled to reversal and remand for a new trial pursuant to TEX.R.APP.P. 34.6(f) because the court
reporter’s notes and the exhibits have been lost. On April 5, 2018, this Court ordered the trial court
to conduct a hearing pursuant to TEX.R.APP.P. 34.6(f) to determine whether the court reporter’s
notes and/or the exhibits have been lost or destroyed. The trial court conducted the hearing and
made its findings of fact and conclusions of law. The reporter’s record of the hearing has also
been filed. Further, at our request, Appellant has filed a letter brief addressing the second, third,
and fourth elements of Rule 34.6(f).
Under Rule 34.6(f), a party is entitled to a new trial under the following circumstances:
(1) if the appellant has 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 has been lost or destroyed or—if the
proceedings were electronically recorded—a significant portion of the recording
has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or
destroyed exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be
replaced by agreement of the parties, or the lost or destroyed exhibit cannot 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.
Appellant is not entitled to a new trial unless all four elements are established. See In the Interest
of S.V., --- S.W.3d ---, 2017 WL 3725981, at *3 (Tex.App.--Dallas 2017, pet. denied).
We find that Appellant timely requested the court reporter to prepare the reporter’s record.
The record reflects that the court reporter’s notes and the exhibits have not been located following
her death, and neither the trial court nor the parties requested additional time to investigate the
matter. The trial court determined that some of the court reporter’s notes have been found, but
there is no evidence that the notes from the instant case have been located. There is also evidence
that the court reporter’s personal computer has been recovered from her home but it is password-
protected. The trial court determined it was not authorized to order the El Paso County IT
Department to “hack” into the computer, but the court suggested that this Court has authority to
enter such an order. It is unclear whether this Court possesses such authority. Even assuming we
do, there is nothing in the record to suggest that the court reporter stored her notes for this case on
the computer. In the absence of such evidence, we decline to order anyone to “hack” into the court
reporter’s personal computer. Based on the record developed by the trial court, we conclude that
the court reporter’s notes and the exhibits have been lost.
The third element of Rule 34.6(f) is whether the lost reporter’s record and exhibits are
necessary to the appeal. It was Appellant’s burden to make this showing. See In the Interest of
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S.V., --- S.W.3d ---, 2017 WL 3725981, at *3. When the trial court raised this issue at the hearing,
Appellant did not articulate any reason why the reporter’s record and exhibits are necessary to the
appeal. She has, however, made a compelling argument in her letter brief that she intended to raise
issues on appeal challenging the trial court’s decisions on custody and retroactive child support.
Appellant asserts that the trial court heard approximately three hours of testimony related to the
custody determination and one hour of testimony related to the retroactive child support issue.
Further, the missing exhibits are pertinent to Appellant’s arguments regarding the child support
arrearage because she asserts that the trial court erroneously gave Appellee credit for certain child
support payments. We agree that the reporter’s record and exhibits are necessary to resolving this
issue on appeal, and the parties have not entered into any agreement to replace the reporter’s record
and exhibits. Accordingly, we conclude that Appellant is entitled to a new trial. The trial court’s
order signed on February 17, 2017 is reversed and the cause is remanded for a new trial.
July 31, 2018
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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