Victor Charles Bankett v. State ( 2015 )

Opinion issued June 11, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00896-CR
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VICTOR CHARLES BANKETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Case No. 1866497
MEMORANDUM OPINION
On September 20, 2013, following a plea of not guilty, appellant, Victor
Charles Bankett, was convicted by a jury of the misdemeanor offense of burglary
of a vehicle and was sentenced by the court to one year confinement in the county
jail. See TEX. PENAL CODE ANN. § 30.04 (West Supp. 2014). Bankett timely
appealed from the trial court’s judgment on September 20, 2013. The trial court
clerk filed the clerk’s record on November 13, 2013.
The reporter’s record from the trial was due on November 19, 2013. The
court reporter, Sondra Humphrey, requested and was granted an extension to file
the record to January 15, 2014.
On April 15, 2014, we abated the appeal and remanded the case to the trial
court for a determination regarding why the reporter’s record had not yet been filed
and for the trial court to set a date certain when the reporter’s record would be
filed. The Honorable Sherman A. Ross, the former Presiding Judge of the Harris
County Criminal Courts at Law, was assigned to hear the proceedings regarding
the past due reporter’s records taken by Humphrey in this case and eight other
cases pending in both this Court and the Court of Appeals for the Fourteenth
District of Texas. See TEX. GOV’T CODE ANN. § 74.056 (West 2013). Judge Ross
issued many orders and conducted numerous hearings in an effort to obtain the
reporter’s records in these cases. See TEX. R. APP. P. 35.3(c). Although Judge
Ross afforded Humphrey multiple opportunities to file the record, it became
apparent that she was unable to provide a complete record in this case. Judge Ross
therefore appointed a substitute court reporter, Brenna DeMoss, the official court
reporter for County Criminal Court at Law No. 11 in Harris County, to evaluate
whether a complete reporter’s record could be prepared, certified, and filed in this
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case. Further, after finding that Humphrey violated several of the court’s orders,
Judge Ross held her in contempt and, on August 15, 2014, sentenced her to
confinement in the Harris County Jail for thirty days and a $500 fine.
Finally, on March 3, 2015, the trial court signed findings of fact and
conclusions of law in this case, which were filed with this Court in a supplemental
clerk’s record on March 11, 2015. The following are included in the trial court’s
“Supplemental Findings of Fact”:
4. Ms. Humphrey provided this court with her computerized
stenographic notes.
5. Ms. Humphrey provided this court with an informal audio
recording of the proceedings.
6. At the request of the parties, the undersigned judge directed
Brenna DeMoss, official court reporter for County Criminal
Court at Law No. 11, of Harris County, Texas, to review the
audio files, and stenographic notes submitted to the Court by
Ms. Humphrey.
7. Ms. DeMoss could not reconstruct a complete reporter’s record
based upon the audio and stenographic notes submitted to the
Court by Ms. Humphrey.
8. Ms. Humphrey’s medical condition, personal, and professional
problems during the latter part of 2013, and early 2014, . . .
indicate she may not have been in a condition to transcribe the
proceedings, or otherwise conduct herself in a professional
manner. . . .
...
10. The appellant timely filed a notice of appeal.
11. This case did not involve a waiver of a court reporter, nor was it
a mere formality or summary proceeding.
12. The appellant bears no fault for Ms. Humphrey’s failure to
complete and file the reporter’s record.
13. The reporter’s record is necessary to the appeal’s resolution.
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14. The reporter’s record cannot be replaced by agreement of the
parties to the facts contained in the record, if a complete and
legible record exists.
...
16. Based upon Ms. Humphrey’s representations to this court
regarding the status of the reporter’s record, and her failure to
either file the completed record or provide the court with
stenographic notes capable of being transcribed by another
official court reporter using the same software system resulting
in a complete record[,] this Court does not find Ms. Humphrey
to be credible.
17. The undersigned finds Ms. Humphrey failed to file the record
because she had neither a complete stenographic record, nor a
complete audio recording of the proceedings in the trial court;
or she willfully refused and continues to refuse to fully and
accurately transcribe her notes.
18. This Court does not believe a complete record will ever be filed
by Ms. Humphrey or another court reporter.
Judge Ross then made the following conclusions of law:
1. Sondra Humphrey violated her oath to keep a correct, impartial
record of (1) the evidence offered in the case; (2) the objections
and exceptions made by the parties to the case; and (3) the
rulings and remarks made by the court in determining the
admissibility of testimony presented in the case. . . .
2. The appellant is entitled to a new trial.
Pursuant to Texas Rule of Appellate Procedure 34.6(f), if, through no fault
of the appellant, a reporter’s record is lost or destroyed, and the portion of the
record that is lost or destroyed is necessary to the appeal’s resolution and cannot be
replaced by agreement of the parties, the appellant is entitled to a new trial. TEX.
R. APP. P. 34.6(f); see Mendoza v. State, 439 S.W.3d 564, 566 (Tex. App.—
Amarillo 2014, no pet.). If, however, the missing portion of a reporter’s record is
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not necessary to the appeal’s resolution—and the appellant is therefore not harmed
by the incomplete reporter’s record—the appellant is not entitled to a new trial.
See TEX. R. APP. P. 34.6(f)(3); Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim.
App. 2013); Routier v. State, 112 S.W.3d 554, 571–72 (Tex. Crim. App. 2003);
Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999).
We agree with the trial court’s conclusion that appellant is entitled to a new
trial. Although Judge Ross provided Humphrey with numerous opportunities to
provide a complete record and, when Humphrey proved unable to do so, appointed
a substitute court reporter to transcribe the record from Humphrey’s stenographic
notes and audio recordings, no record has been prepared or certified, and the
substitute reporter testified that she was unable to prepare, certify, and file a
reporter’s record from Humphrey’s notes and audio recordings. See Johnson v.
State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004) (stating that court has
authority to appoint substitute court reporter to prepare and certify record from
original reporter’s notes). The record therefore supports the trial court’s findings
that Humphrey’s stenographic notes and audio recording were incomplete and that
the missing portion of the record—the entire reporter’s record—is irretrievably lost
or destroyed. See TEX. R. APP. P. 34.6(f)(2); Mendoza, 439 S.W.3d at 565–66; see
also Johnson, 151 S.W.3d at 196 (holding that court reporter’s notes and records,
or portions thereof, can only be considered lost if missing portions of record are
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irretrievable and may not be considered lost based solely on reporter’s repeated
failure to file record).
The record further supports the trial court’s finding that the missing
reporter’s record is necessary to appellant’s appeal. See TEX. R. APP. P. 34.6(f)(3).
There is no reporter’s record from any portion of the trial in this case. And, in the
absence of a reporter’s record, we must presume the regularity of the documents in
the trial court and are bound by the recitations in the records of the trial court,
including the judgment. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.
App. 1984). Therefore, without any reporter’s record, and “[g]iven the
circumstances of this case, it would strain credulity to conclude that the destroyed
reporter’s record was unnecessary to the resolution of the appeal.” Villagomez
Invs., L.L.C. v. Magee, 294 S.W.3d 687, 690 (Tex. App.—Houston [1st Dist.]
2009, no pet.); see also TEX. R. APP. P. 34.6(c)(5) (requiring that record include all
evidence admitted at trial for criminal appellant to raise argument as to sufficiency
of evidence); id. 38.1(g), (i) (requiring appellant’s brief to contain statement of
facts “supported by record references” and argument “with appropriate
citations . . . to the record”); Bryant v. State, No. 14-13-00922-CR, 2015 WL
1622163, at *3 (Tex. App.—Houston [14th Dist.] Apr. 7, 2015, no pet. h.)
(“Appellant’s ability to present meaningful issues on appeal after a jury trial is
severely limited in the absence of a reporter’s record.”); cf. Issac, 989 S.W.2d at
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757 (declining to adopt automatic rule of reversal in cases with lost or destroyed
reporter’s record, but recognizing that “the lack of a record may in some cases
deprive an appellate court of the ability to determine whether the absent portions
are necessary to the appeal’s resolution”).
Finally, the court reporter represented to this Court, in her December 6, 2013
motion for extension of time to file the reporter’s record, that appellant requested
that the reporter’s record be prepared, see TEX. R. APP. P. 34.6(f)(1), and the record
supports the trial court’s findings that appellant “bears no fault” for the reporter’s
inability to produce the reporter’s record, see id. 34.6(f)(2), and that the reporter’s
record cannot be replaced by agreement of the parties, see id. 34.6(f)(4).
Accordingly, we reinstate this appeal, reverse the trial court’s judgment, and
remand the cause for a new trial. See Castillo v. State, No. 01-13-00632-CR, 2015
WL 1778776 (Tex. App.—Houston [1st Dist.] April 16, 2015, no pet.); TEX. R.
APP. P. 34.6(f), 43.2(d); Mendoza, 439 S.W.3d at 566. Any pending motions are
dismissed as moot.
PER CURIAM
Panel consists of Justices Keyes, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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