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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § FABIAN DOUGLAS CASTANEDA, § No. 08-12-00167-CR Appellant, § Appeal from the § 83rd District Court THE STATE OF TEXAS § of Pecos County, Texas State. § (TC# P-2377-83-CR) § ORDER On June 22, 2015, the Court filed the supplemental clerk’s record as requested in our order issued on May 8, 2015. Further, the Court filed the supplemental reporter’s record from the hearing conducted by the trial court pursuant to that same order. The purpose of the hearing was to determine whether the court reporter’s notes from a pre-trial hearing held in 2000 have been lost, and if they have, whether Appellant may be entitled to a new trial pursuant to TEX.R.APP.P. 34.6(f). At our request, the trial court made findings of fact and conclusions of law related to those issues. The Court has reviewed the trial court’s findings and conclusions as well as the transcription of the hearing conducted by the trial court. The record of the hearing supports the trial court’s fact findings. The record reflects that the court reporter’s notes from the June 13, 2000 pre-trial hearing have been lost. Appellant did not request the court reporter to prepare the transcription of that hearing within three years and he did not ask the court reporter to preserve the notes for more than three years. It is undisputed that Appellant failed to appear in court on the trial date of July 10, 2000 and he remained at large until he was rearrested in August of 2010. William Briggs,, the court reporter who transcribed the June 2000 pre-trial hearing, put the notes of the hearing in an envelope and filed it in his office at the 83rd District Court. Mr. Briggs testified that if he had been requested to preserve his notes he would have filed them with the district clerk, but no such request was ever made. Mr. Briggs left employment with the 83rd District Court sometime after the June 2000 hearing but he was unsure of the exact date. He testified that he only worked for the Judge Carl Pendergrass for only a couple of years after he took office. We take judicial notice of official records reflecting that Judge Pendergrass was appointed to serve as the judge of the 83rd District Court on October 29, 1999. Based on the record, it appears that Mr. Briggs left employment as the court reporter in late 2001. Appellant made a request for preparation of the reporter’s record, including pre-trial hearings, in 2012 after his trial. Mr. Briggs was not contacted by Appellant’s attorney regarding the record of the pre-trial hearing in question until 2015. We find that Appellant is not entitled to a new trial under TEX.R.APP.P. 34.6(f) because Appellant did not timely request preparation of this portion of the reporter’s record, and because the record does not show that this portion of the record was lost without the fault of Appellant. The appeal is reinstated and Appellant’s third motion for extension of time to file the brief is GRANTED. Appellant’s brief is now due to be filed no later than July 25, 2015. IT IS SO ORDERED this 25th day of June, 2015. PER CURIAM Before McClure, C.J., Rodriguez and Hughes, JJ.
Document Info
Docket Number: 08-12-00167-CR
Filed Date: 6/25/2015
Precedential Status: Precedential
Modified Date: 10/16/2015