David T. Mendoza v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00034-CR
________________________
DAVID T. MENDOZA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2006-414,757; Honorable Cecil G. Puryear, Presiding
June 16, 2014
ABATEMENT AND REMAND
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Following a plea of not guilty, Appellant, David T. Mendoza, was convicted by a
jury of two counts of aggravated assault with a deadly weapon 1 and sentenced to
twenty years confinement as to each count. Appellant perfected this appeal, and the
clerk’s record was filed on April 1, 2014. The court reporter filed an extension of time
1
TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). As indicted, an offense under this section is
a felony of the second degree.
indicating the original reporter on the case had passed away, and she had been asked
to transcribe the record and had just received the audio tapes. An extension was
granted to May 12, 2014. A second request for an extension of time was filed, and the
deadline was extended to June 12, 2014. On May 15, 2014, three days after filing her
second extension request, the reporter filed a letter notifying this Court her “efforts on
this transcript have ceased.” She explained she was unable to transcribe bench
conferences from incomplete notes and also noted the audio cassettes were inaudible.
She did, however, feel competent to transcribe the trial sans the bench conferences. By
her letter she reported that she had notified the trial court judge and counsel for
Appellant and the State. Her letter added that counsel for Appellant was contemplating
whether Appellant may be entitled to a new trial.
The second deadline for filing the reporter’s record has passed, and there has
been no communication with this Court regarding the status of the record from anyone
involved with this appeal. Rule 35.3(c) of the Texas Rules of Appellate Procedure
provides that trial courts and appellate courts are jointly responsible for ensuring the
filing of an appellate record. TEX. R. APP. P. 35.3(c). This Court may enter any order
necessary to accomplish that goal. Id. If, through no fault of the appellant, a reporter’s
record is lost, destroyed or a “significant portion” of the recordings is inaudible, an
appellant is entitled to a new trial, id. at 34.6(f)(2), if that portion of the record is
necessary to the appeal’s resolution and the lost, destroyed or inaudible portion cannot
be replaced by agreement of the parties. Id. at (f)(3), (4). Consequently, we abate this
appeal and remand the case to the trial court for further proceedings.
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Upon remand, the trial court shall utilize whatever means necessary to
immediately determine the following:
(1) whether any portion of the record from the underlying trial cannot be
transcribed;
(2) whether any portion of the record that cannot be transcribed may be
replaced by stipulation or agreement of the parties; and, if not
(3) whether that portion of the record that cannot be transcribed or
replaced is necessary to disposition of this appeal.
Should the trial court determine that any missing portions of the record can be
transcribed or that the parties agree to replace by agreement, that information should be
provided to the Clerk of this Court as soon as is practicable. In that event, the reporter’s
record, as resolved by the trial court, shall be due to be filed in this Court on or before
August 4, 2014.
Should the trial court determine that there are any missing portions of the record
that cannot be transcribed and the parties cannot agree to replace by agreement, then
the trial court shall execute findings of fact and conclusions of law and shall cause its
findings, conclusions, and any necessary orders to be included in a supplemental
clerk’s record to be filed with the Clerk of this Court on or before August 4, 2014.
It is so ordered.
Per Curiam
3