in the Interest of E.C.M., a Child ( 2004 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE INTEREST OF E.C.M., a child.

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No. 08-03-00503-CV Appeal from the 383rd District Court of El Paso County, Texas (TC# 85‑2096)

MEMORANDUM OPINION ON MOTION TO ORDER NEW TRIAL

Before the Court is appellant Ernest Dominguez=s motion to order a new trial pursuant to Tex. R. App. P. 34.6, as the electronic recording of proceedings is inaudible.  For the reasons set out below, we deny the motion.

Facts

On September 4, 2003 the IV-D Associate Judge of El Paso County held a hearing and entered judgment on child support arrearages against appellant Ernest Dominguez.  A record of the proceedings was made by audio recording.  Dominguez has appealed the trial court=s judgment of September 4, 2003, and the clerk=s record was filed in this Court on December 30, 2003.  Dominguez has now filed his motion urging that he is entitled to a new trial under Tex. R. App. P. 34.6(f), as the  audio recording of proceedings is inaudible.  In support, Dominguez has attached a copy of the affidavit of Kathleen Ann Supnet, court reporter, to this Court.  There, Ms. Supnet has informed this Court that:

Since this hearing was not taken by a court reporter and a court reporter was not present, I was requested by counsel to transcribe the record from the Court=s tape recording.

Upon my review of the tape last week, and upon the review of Sylvia, Judge Minton=s court coordinator, we have both determined that the tape is inaudible, therefore a transcript of the proceedings cannot be produced. 

Briefs have not yet been filed in the case.  Appellant=s brief is presently due on March 4, 2004.

Requirements of Tex. R. App. P. 34.6(f)

            Tex. R. App. P. 34.6(f) governs situations such as the one before us.  It provides:

Reporter=s Record Lost or Destroyed.  An appellant 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, . . . if the proceedings were electronically recorded--a significant portion of the recording has been lost or destroyed or is inaudible;

(3) if the . . . inaudible portion of the reporter=s record . . . is necessary to the appeal=s resolution; and

(4) if the . . . inaudible portion of the reporter=s record cannot be replaced by agreement of the parties . . . .

Here, the Attorney General correctly points out that Dominguez has not satisfied the third and fourth sections of the rule.^[1]  Nothing before us indicates that Dominguez has communicated with other parties to the appeal in an attempt to replace the record by agreement (for example, by written stipulation under Tex. R. App. P. 34.3).  Morever, and more importantly, there is nothing before us to show that the inaudible recording is necessary to the resolution of the appeal. Dominguez does not even assert this in his motion.  Without his brief on appeal to assay the necessity of the recording, nor even an outline of his anticipated appellate points in his motion, this Court is unable to conclude that a record of the hearing is necessary to the appeal.  See In re B.R.G., 37 S.W.3d 542, 544 (Tex. App.--El Paso 2001, no pet.) (finding record of hearing on merits essential to reviewing appellant=s claims).  For these reasons, we find that appellant Dominguez has not shown himself entitled to a new trial.

Conclusion

The motion to order a new trial is denied.  Appellant=s brief is due April 5, 2004.

SUSAN LARSEN, Justice

March 4, 2004

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

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^[1]The Attorney General also contends that Dominguez did not timely request the reporter=s record, as required by the first section of the rule. We need not reach this contention, however, as his failure to satisfy the rule=s other requirements are dispositive of his motion at this time.