Marco Arellano v. State ( 2020 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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MARCO ARELLANO, No. 08-19-00240-CR
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Appellant, Appeal from the
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v. Criminal District Court No. 1
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THE STATE OF TEXAS, of El Paso County, Texas
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State. (TC# 20160D01110)
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ORDER
The reporter’s record was due to be filed on November 24, 2019, and none has been filed.
Angie Morales, Official Court Reporter for Criminal District Court No. 1 of El Paso County,
advised the Court on November 22, 2019 and December 5, 2019 that she has not received
arrangements for the reporter’s record.
On December 6, 2019, we ordered the trial court to conduct a hearing to determine whether
Appellant wished to continue the appeal. At the hearing held on December 18, 2019, counsel for
Appellant stated on the record that it was Appellant’s “firm intent to continue with the appeal” and
that:
We will be contacting the court reporter via email by midday today being the
earliest as possible. And as soon as we receive a response, we will make financial
arrangements to effectuate the transcript and we’ll proceed from there. . . .
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Thereafter, the Court Reporter sent this Court a letter stating that she had spoken with
Appellant’s counsel on December 20, 2019; that counsel had informed his client of the cost; and
that he had informed his client to pay the deposit. The Court Reporter stated that as of Friday,
December 20, 2019 at 4:15 p.m. when she left for her holiday vacation, she had not yet received
payment.
In a follow-up letter sent on January 8, 2020, the Court Reporter stated that she had spoken
with counsel for Appellant on January 7, 2020, that counsel said was still waiting for his client to
come up with the payment, and that as of the date of her letter, no payment arrangements had been
made. As of the date of this order, there is no evidence payment arrangements for the reporter’s
record have been made.
Where a reporter’s record is not timely filed in a criminal case, the Court must make
whatever order is appropriate to avoid further delay and to preserve the parties' rights.
TEX.R.APP.P. 37.3(a)(2). The Court retains the discretion to either dismiss this appeal for want of
prosecution/failure to adhere to a Court order1 or to submit this case for consideration without a
reporter’s record and without briefs.2 Rather than invoke those drastic remedies at this time, the
Court will refer this matter to the trial court one last time to determine the status of this appeal.
Therefore, it is ORDERED that the trial court conduct a hearing to determine whether
Appellant wishes to continue the appeal, whether Appellant has been deprived of a reporter’s
record, and whether Appellant is entitled to appointment of new counsel or has been deprived of
effective assistance of counsel. The trial court shall forward its findings to the District Clerk of El
Paso County, Texas, on or before, February 6, 2020. The District Clerk shall prepare and forward
a supplemental clerk’s record containing the trial court’s findings and forward the same to this
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Rodriguez v. State, 970 S.W.2d 133 (Tex.App.—Amarillo 1998, pet. ref'd).
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Sutherland v. State, 132 S>W.3d 510, 512 (Tex.App.—Houston [1st Dist.] 2004, no pet.).
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Court on or before February 17, 2020. Further, the trial court’s reporter shall prepare, certify, and
file the record of the trial court proceedings with this Court on or before February 17, 2020.
IT IS SO ORDERED this 22nd day of January, 2020.
PER CURIAM
Before Alley, C.J., Rodriguez and Palafox, JJ.
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