Jose Luis Acosta v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-13-00470-CR
02-13-00471-CR
JOSE LUIS ACOSTA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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ABATEMENT ORDER
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The reporter’s record was originally due on November 19, 2013. On
January 13, 2014, the court granted court reporter Sheila Walker’s request for an
extension to file the reporter’s record, making the record due February 5, 2014.
The court stated in this order that no further extensions would be granted.
On February 13, 2014, and again on April 15, 2014, Walker uploaded a
reporter’s record via the Texas Appeals Management and E-filing System
(TAMES) web portal that did not include all exhibits. On both occasions, Walker
attempted to submit the remaining exhibits to the court in their original form
instead of filing them in an electronic format via the TAMES web portal as
mandated by appendix C to the Texas Rules of Appellate Procedure and the
Uniform Format Manual for Texas Reporters’ Records.
On May 14, 2014, as authorized by appendix C of the Texas Rules of
Appellate Procedure, the court posted guidelines for filing reporter’s records to
the court’s website. On May 15, 2014, the court ordered Walker to file the
reporter’s record in compliance with appendix C to the Texas Rules of Appellate
Procedure, the Uniform Format Manual for Texas Reporters’ Records, and the
guidelines posted on the court’s website on or before May 27, 2014, or to be
prepared to show cause why she should not be held in contempt.
The guidelines for reporter’s records posted to the court’s website set forth
the following procedure for a court reporter to follow when attempting to submit
exhibits that are unable to be duplicated electronically:
If a court reporter cannot upload a legible electronic copy of an
exhibit via the TAMES web portal, the court reporter must include
the exhibit number on a separator page along with the following
statement: “EXHIBIT UNABLE TO BE DUPLICATED
ELECTRONICALLY.” In addition, at the same time that the court
reporter files the reporter’s record, the court reporter must also file
a motion for leave to submit the exhibits that were unable to be
duplicated electronically in the form of physical media. This motion
must attach the court reporter’s sworn affidavit that 1) states that
the court reporter was unable to file the exhibit electronically and 2)
details the efforts made by the court reporter in an attempt to file the
exhibit electronically. Such efforts should include contacting the
court reporters’ liaison and/or the party that offered the exhibit in the
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trial court for assistance in duplicating the file in an electronic format
suitable for uploading to the TAMES web portal.
Information on Electronic Filing, Second Court of Appeals,
http://www.2ndcoa.courts.state.tx.us/efiling/efile_news.asp (last updated May 14,
2014) (emphasis added).
On May 24 and 25, 2014, Walker again uploaded a reporter’s record via
the TAMES web portal that did not include all exhibits. Specifically, the reporter’s
record did not duplicate the content of State’s Exhibits 49, 82, and 83. Despite
the guidelines’ requirement that Walker file a motion for leave to submit these
exhibits in the form of physical media, the reporter’s record instead states that
Walker has filed each of these exhibits with the district clerk’s office. Also
contrary to the guidelines’ requirements, Walker did not submit her sworn
affidavit that 1) states that she was unable to file each of these exhibits
electronically and 2) details the efforts that she made in an attempt to file each of
these exhibits electronically, including contacting the court reporters’ liaison
and/or the party that offered the exhibits in the trial court for assistance. Thus,
Walker has failed to file the complete, compliant reporter’s record in a timely
manner as ordered by this court.
Accordingly, we abate these appeals and remand the cases to the trial
court. The trial court shall immediately, but no later than 5:00 p.m. on
Wednesday, June 4, 2014, conduct a hearing with the attorneys of record and
court reporter Sheila Walker present. Walker shall bring with her to the hearing
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State’s Exhibits 49, 82, and 83. The trial court shall use whatever means are
required to ensure Walker’s personal appearance at the show cause hearing with
State’s Exhibits 49, 82, and 83, including, if necessary, the issuance of a capias.
Walker is hereby notified that because she faces possible
confinement and a fine should this court hold her in contempt, she has a
right to have counsel appear with her in the show cause hearing. At this
hearing, the trial court shall further admonish Walker of her rights.
Walker shall show cause at this hearing why she should not be held in
contempt of this court for failing to comply with our May 15, 2014 order. See
Tex. Gov’t Code Ann. § 21.002 (West 2004). The trial court shall ask Walker to
detail on the record at the hearing her reasons and motivations for failing to file
the motion and affidavit in compliance with the guidelines for filing reporter’s
records as ordered by this court. The trial court shall also determine the
following on the record at the hearing:
 Whether Walker contends that State’s Exhibits 49, 82, and 83 cannot be
electronically duplicated;
 Whether Walker made any efforts to file State’s Exhibits 49, 82, and 83
electronically and, if so, what efforts were made;
 Whether Walker contacted the court reporters’ liaison for assistance in
duplicating State’s Exhibits 49, 82, and 83 in an electronic format suitable
for uploading to the TAMES web portal;
 Whether Walker contacted the attorneys for the State for assistance in
duplicating State’s Exhibits 49, 82, and 83 in an electronic format suitable
for uploading to the TAMES web portal; and
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 When Walker can duplicate State’s Exhibits 49, 82, and 83 in an electronic
format suitable for uploading to the TAMES web portal or otherwise follow
the guidelines and rules referenced above for each exhibit that is unable to
be duplicated, or whether the duty of filing State’s Exhibits 49, 82, and 83
should be reassigned to another court reporter. If the trial court
determines that a reassignment is necessary, the trial court shall reassign
the duty, set a deadline for filing the exhibits in compliance with the above-
referenced rules and guidelines no later than fourteen days after the date
of the hearing on this matter, notify the replacement court reporter in
writing, or on the record at the hearing, of the reassignment and deadline,
and immediately transfer State’s Exhibits 49, 82, and 83 from Walker to the
newly assigned reporter.
The trial court shall make all findings necessary to aid this court in
determining whether to hold Walker in contempt and shall file a record of the
hearing in this court on or before Friday, June 27, 2014. This record of the
hearing shall include a supplemental clerk’s record and supplemental reporter’s
record. On our receipt of the supplemental record from the hearing, the appeal
of this cause shall be automatically reinstated without further order. After the
appeal is reinstated, we shall determine whether to hold Sheila Walker in
contempt.
The clerk of this court shall transmit a copy of this order to court reporter
Sheila Walker via certified mail return receipt requested and electronic mail, the
attorneys of record, the trial court clerk, and the trial court judge.
DATED May 28, 2014.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
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