Randy William Sharp v. the State of Texas ( 2024 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00242-CR
RANDY WILLIAM SHARP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court
Upshur County, Texas
Trial Court No. 19448
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION
Randy William Sharp pled guilty to possession of a controlled substance with intent to
deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (Supp.).1 Pursuant to a plea-bargain
agreement with the State, the trial court sentenced Sharp to forty years’ imprisonment. Sharp
now appeals and claims he is entitled to a new trial under Rule 34.6(f) of the Texas Rules of
Appellate Procedure “due [to] the loss of Volume Two of the Court Reporter’s Record.” See
TEX. R. APP. P. 34.6(f). This is the only issue raised. Upon review, we find that Sharp is entitled
to a new trial under Rule 34.6(f).
I. Factual Background
According to the indictment, “on or about the 18th day of August, A.D. 2022,” Sharp
allegedly “did then and there knowingly possess, with intent to deliver, a controlled
substance listed in Penalty Group One of the Texas Controlled Substances Act, namely,
Methamphetamine, in an amount of four grams or more but less than 200 grams, by
aggregate weight, including any adulterants and dilutants.” After Sharp was indicted, he
filed a motion to suppress evidence. With that motion, he claimed his seizure “was made
without a warrant and without probable cause to believe that he was engaged in criminal
activity.” Sharp stated, “SPECIFICALLY: The Trooper engaged in a ‘probable cause search’
where no probable cause existed, going to such an extreme as to remove a locked lock from a
closed box.”
1
The judgment of conviction incorrectly identifies the statute of offense as “481.112 Penal Code.” The correct
statute of offense is Section 481.112 of the Texas Health and Safety Code. Because we are reversing and remanding
for a new trial, we need not modify the judgment.
2
On November 30, 2023, the trial court held a hearing on Sharp’s motion to suppress. It is
undisputed that the reporter’s record from that hearing, which should be volume two of the
reporter’s record, is missing. After the suppression hearing, the trial court denied Sharp’s motion
to suppress and entered findings of fact and conclusions of law on that denial.
Subsequently, on December 4, 2023, Sharp pled guilty to possession with the intent to
distribute. Although a plea-bargain case, the trial court certified that “matters were raised by
written motion filed and ruled on before trial and not withdrawn or waived, and the defendant
has the right of appeal.” After pleading guilty, the trial court sentenced Sharp to forty years’
imprisonment. Sharp now appeals.
II. Rule 34.6(f) Requires a New Trial
When a reporter’s record is lost or destroyed, Rule 34.6(f) of the Texas Rules of
Appellate Procedure requires a new trial if four requirements are met. Rule 34.6(f) specifically
provides the following:
(f) Reporter’s Record Lost or Destroyed. An appellant is entitled to a new
trial under the following circumstances:
(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a
significant portion of the court reporter’s notes and records has been lost
or destroyed or—if the proceedings were electronically recorded—a
significant portion of the recording has been lost or destroyed or is
inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record,
or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed[,] or inaudible portion of the reporter’s record
cannot be replaced by agreement of the parties, or the lost or destroyed
3
exhibit cannot be replaced either by agreement of the parties or with a
copy determined by the trial court to accurately duplicate with reasonable
certainty the original exhibit.
TEX. R. APP. P. 34.6(f). If these four requirements are met, Sharp is entitled to a new trial. See
Coplin v. Mann, 622 S.W.3d 586, 591 (Tex. App.—Texarkana 2021, no pet.). We turn to the
four requirements of Rule 34.6(f).2
A. Sharp Made a Timely Request for the Reporter’s Record
Sharp filed his notice of appeal on December 7, 2023, and Sharp requested the reporter’s
record on the same day. Thus, Sharp made a timely request for the reporter’s record, and the
first requirement has been met. See TEX. R. APP. P. 34.6(f)(1).
B. A Significant Portion of the Reporter’s Record is Lost or Destroyed
It is undisputed that volume two of the reporter’s record is lost or destroyed. The State
concedes that “the record for the hearing on Appellant’s motion to suppress can not [sic], for
whatever reason, be retrieved by the court reporter and is missing from the remainder of the
reporter’s record.”
The State also agrees that “[i]t is undisputed that neither Appellant nor Appellee have
contributed in any manner whatsoever to the absence from the reporter’s record of the
proceedings that occurred in the hearing on Appellant’s motion to suppress.” Considering these
2
Under Rule 34.6(e)(3) of the Texas Rules of Appellate Procedure, we are permitted to abate this proceeding and
allow the trial court to resolve any “dispute” regarding the reporter’s record. TEX. R. APP. P. 34.6(e)(3). Rule
34.6(e)(3) provides, “If the dispute [as to the reporter’s record] arises after the reporter’s record has been filed in the
appellate court, that court may submit the dispute to the trial court for resolution.” In this case, on April 24, 2024,
we notified the parties of the incomplete reporter’s record. Consistent with Rule 34.6(e)(3), we also left “the
responsibility for seeking further relief related to the lost or destroyed record with the parties to this appeal.”
Neither party requested that we take further action as to the missing volume of the reporter’s record. As a result, we
found that there was no “dispute” to be resolved by the trial court and that abatement was not necessary.
4
facts, we find the second requirement has been met, and that, “without the appellant’s fault, . . . a
significant portion of the court reporter’s notes and records has been lost or destroyed.” TEX. R.
APP. P. 34.6(f)(2).
C. Volume Two Is Necessary to the Appeal’s Resolution
The State does not dispute that the third requirement has been met. As the State
concedes, the suppression issue is the “singular issue on which Appellant could appeal.” The
State further acknowledges that, “[i]n the absence of this record, Appellee concedes no
meaningful appeal can proceed.” Thus, we find that the third requirement—that volume two “is
necessary to the appeal’s resolution”—has been met. TEX. R. APP. P. 34.6(f)(3).
D. Volume Two Cannot Be Replaced by Agreement of the Parties
In its brief, the State does not argue that volume two of the reporter’s record can be
replaced by agreement of the parties. See TEX. R. APP. P. 34.6(f)(4). Instead, to remedy the
missing record, the State suggests that the trial court rehear the suppression motion and make a
new record. Under the clear terms of Rule 34.6(f), Sharp is not just entitled to a new hearing on
the part of the missing reporter’s record. Instead, Sharp is entitled to a “new trial.” See TEX. R.
APP. P. 34.6(f).
We find that, because neither the State nor Sharp3 dispute that the “lost, destroyed[,] or
inaudible portion of the reporter’s record cannot be replaced by agreement of the parties,” we
find that the fourth requirement has also been met. TEX. R. APP. P. 34.6(f)(4).
3
In his brief, Sharp claims volume two cannot be replaced by agreement of the parties.
5
III. Conclusion
Because a significant portion of the timely requested reporter’s record necessary to the
appeal’s resolution has been lost through no fault of Sharp and cannot be replaced by agreement
of the parties, we reverse the judgment of the trial court and remand for a new trial. See TEX. R.
APP. P. 34.6(f).
Scott E. Stevens
Chief Justice
Date Submitted: July 2, 2024
Date Decided: July 26, 2024
Do Not Publish
6