State ( 2011 )

NO. 12-10-00416-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
THE STATE OF TEXAS § APPEAL FROM THE
FOR THE BEST INTEREST § COUNTY COURT AT LAW
AND PROTECTION OF T.S. § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
T.S. appeals from an order of commitment for temporary inpatient mental health services
and an order to administer psychoactive medication. After a hearing without a jury, the trial
court ordered T.S. committed to Rusk State Hospital for a period not to exceed ninety days. The
court also signed an order authorizing the Texas Department of Mental Health and Mental
Retardation1 to administer psychoactive medication to T.S. In one issue, T.S. contends that he is
entitled to a new trial because the court reporter’s record has been lost. We affirm.
BACKGROUND
On November 15, 2010, an application for court ordered temporary mental health
services was filed requesting the court commit T.S. to Rusk State Hospital for a period not to
exceed ninety days. The application was supported by two certificates of medical examination
for mental illness. Both physicians diagnosed T.S. as suffering from schizophrenia. On
November 22, an application for court ordered administration of psychoactive medication was
filed.
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The court’s order refers to the Department of Mental Health and Mental Retardation. Likewise, Title 7 of
the Health and Safety Code still defines “department” as the Texas Department of Mental Health and Mental
Retardation. TEX. HEALTH & SAFETY CODE ANN. § 531.002(6) (Vernon 2010). However, that department has been
abolished. See Act of June 2, 2003, 78th Leg., R.S., ch. 198, § 1.26, 2003 Tex. Gen. Laws 611, 641. Currently, the
Texas Department of Health Services administers and coordinates mental health services at the state and local level
and operates the state’s mental health facilities. TEX. HEALTH & SAFETY CODE ANN. § 1001.072 (Vernon 2010).
After a hearing on November 23, the trial court ordered T.S. committed to Rusk State
Hospital for a period not to exceed ninety days. The court also authorized administration of
psychoactive medication. On December 3, 2010, T.S.’s trial counsel filed a notice of appeal on
his behalf. On the same day, an appellate attorney was appointed. On December 14, counsel
filed his request for preparation of the reporter’s record and designation of matters to be
included. On the same day, the trial court granted the request. Also on December 14, the court
reporter filed a request for extension of time to file the record in this court because Smith County
had not paid for the record. On January 5, 2011, we ordered the case submitted on the clerk’s
record alone. On February 15, 2011, counsel filed a motion to extend time to file the brief,
explaining that because Smith County has not paid, counsel agreed to pay for the record. On
March 10, 2011, the court reporter filed an affidavit explaining that she is unable to locate the
stenographic record of T.S.’s case.
LOST RECORD
In his sole issue, T.S. contends he should be granted a new trial because he made a timely
request for a reporter’s record but it has been lost due to no fault of his. Further, he asserts the
record is necessary to disposition of the appeal and could not be replaced by agreement of the
parties. He argues that, without the record, counsel is unable to adequately determine what
issues, if any, he should argue on appeal.
Applicable Law
The court reporter is responsible for filing the reporter’s record. TEX. R. APP. P. 35.3(b).
However, this duty does not arise until the party responsible for paying for the preparation of the
reporter’s record has paid the reporter’s fee or has made satisfactory arrangements to pay the fee.
Id. Texas Rule of Appellate Procedure 34.6(f) provides that an appellant is entitled to a new trial
if he timely requested a reporter’s record, if the reporter’s notes and records have been lost or
destroyed through no fault of the appellant, if the lost record is necessary to the appeal’s
resolution, and if the lost record cannot be replaced by agreement of the parties. TEX. R. APP. P.
34.6(f).
Discussion
T.S. has not shown that the lost record is necessary for the resolution of his appeal. T.S.
asserts that counsel is unable to determine what, if any, issues should be argued on appeal. He
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does not actually assert any particular error. When an appellant merely speculates that error
might have been recorded in the lost portion of the reporter’s record, he has not established that
the record is necessary to the appeal’s resolution. TEX. R. APP. P. 34.6(f); Routier v. State, 112
S.W.3d 554, 571 (Tex. Crim. App. 2003). We overrule T.S.’s sole issue.
DISPOSITION
We affirm the trial court’s order of commitment for temporary inpatient mental health
services and the trial court’s order authorizing administration of psychoactive medication.
BRIAN HOYLE
Justice
Opinion delivered July 29, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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