Pablo Olivarez v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00368-CR
No. 07-22-00369-CR
PABLO OLIVAREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 287th District Court
Bailey County, Texas
Trial Court Nos. 3178 & 3268, Honorable Gordon H. Green, Presiding
August 23, 2023
ORDER OF ABATEMENT AND REMAND
Before PARKER and DOSS and YARBROUGH, JJ.
Appellant, Pablo Olivarez, appeals two convictions for assault on a peace officer1
and concurrent sentences of twelve- and eighteen-years’ confinement. We remand the
appeals to the trial court for further proceedings.
1 See TEX. PENAL CODE ANN. § 22.01(b-2).
The appellate record and Appellant’s brief have been filed. Appellant’s first issue
concerns whether “[t]he record is void of any Faretta warnings prior to [Appellant] waiving
his right to counsel creating reversible error.” The State’s brief was due August 2, 2023,
but was not filed. On August 14, 2023, we issued a letter submitting the appeals for
consideration without oral argument on August 21. See TEX. R. APP. P. 39.1, 39.8. On
August 16, 2023, the State filed an unopposed motion for an extension of time to file a
brief and obtain a supplemental reporter’s record. According to the motion, the State
requested a supplemental record “of the first jury trial of cause number 3178 held on June
15, 2022, and prior hearings held between the dates of May 20,2022 to October 29, 2022,”
because “[t]he transcript of these hearings and jury trials are necessary to address the
issues presented in Appellant’s brief in regard to Appellant waiving his right to counsel.”
The court reporter has since notified the Court that she is unable to locate the
requested portions of the record.2 On August 21, 2023, the State filed a brief reiterating
that a supplemental record has been requested but not filed. Because the unopposed
request for a supplemental reporter’s record has yet to be resolved, we withdraw our
submission of the appeals, abate the causes, and remand the appeals to the trial court to
determine whether the portions of the supplemental reporter’s record requested by the
State have been lost or destroyed. See TEX. R. APP. P. 34.6(f) (outlining the
circumstances in which an appellant is entitled to a new trial if the reporter’s record is lost
or destroyed); Mendoza v. State, No. 07-14-00034-CR, 2014 Tex. App. LEXIS 6485, at
2 The current court reporter, Ms. Debra Smith, was appointed after the death of the official court
reporter, Clay LeMaster.
2
*2–3 (Tex. App.—Amarillo June 16, 2014, no pet.) (per curiam) (remanding appeal for
findings pursuant to Rule 34.6(f)).
Upon remand, the trial court shall conduct a hearing to determine the following:
(1) if, without Appellant’s fault, a significant portion of the court reporter’s
notes and records has been lost or destroyed or, if the proceedings
were electronically recorded, if a significant portion of the recording
is inaudible;
(2) if so, whether the lost, destroyed, or inaudible portion of the reporter’s
record is necessary to the resolution of the appeals; and
(3) whether the lost, destroyed, or inaudible portion of the reporter’s
record can be replaced by agreement of the parties. See TEX. R.
APP. P. 34.6(f).
The trial court is directed to enter findings of fact on the aforementioned matters
and include its findings in a supplemental record to be filed with this Court by September
22, 2023.
It is so ordered.
Per Curiam
Do not publish.
3