DocketNumber: 10-09-00295-CR
Filed Date: 12/15/2010
Status: Precedential
Modified Date: 10/16/2015
IN THE
TENTH COURT OF APPEALS
No. 10-09-00295-CR
James Robert Vasquez,
Appellant
v.
The State of Texas,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. 32165-CR
ABATEMENT ORDER
The reporter’s record in this appeal was originally due on November 16, 2009. After our June 2, 2010 abatement order, Nancy Currie, the court reporter, filed the reporter’s record on August 23, 2010.
Appellant has filed a “motion for new trial/alternatively/motion to require the court reporter to supplement reporter’s record,” which complains of many alleged errors and omissions in the reporter’s record. We requested a response from the State to these motions, but one has not been filed. In his motions, Appellant states that he will be challenging the sufficiency of the evidence and correctly notes that a complete and accurate reporter’s record is required. See Tex. R. App. P. 34.6(c)(5).
We cannot grant Appellant a new trial at this stage. See Tex. R. App. P. 34.6(f). It is the trial court’s duty to settle disputes about the reporter’s record’s alleged inaccuracies. See Tex. R. App. P. 34.6(e)(2, 3). We thus will abate the appeal to the trial court a second time for a hearing, after notice, to determine whether the reporter’s record contains inaccuracies within the meaning of Rule 34.6(e) and, if any inaccuracies are found, to order Currie (or a third-party court reporter) to conform the reporter’s record to what occurred in the trial court, and to certify and file a corrected reporter’s record in this court.
We recognize that the trial judge is likely not qualified to evaluate Currie’s notes and tape recordings and to determine whether the reporter’s record contains inaccuracies. And based on other Navarro County cases involving Currie, the trial court may consider appointing a third-party certified court reporter to review Currie’s notes and tape recordings and to determine whether there are inaccuracies that can be conformed to what occurred in the trial court. See Routier v. State, 112 S.W.3d 554, 563-70 (Tex. Crim. App. 2003); see also Tex. Gov’t Code Ann. § 52.042(a) (Vernon 2005); Tex. R. App. P. 13.5; Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004).
Appellant’s motions are granted in part and denied in part. We abate this appeal to the trial court for a hearing:
(1) to determine whether inaccuracies exist in the reporter’s record, and if so, whether the parties can agree to correct any of them without the court reporter’s recertification (Tex. R. App. P. 34.6(e)(1)); and
(2) to settle the dispute if inaccuracies exist in the reporter’s record and the parties cannot agree on whether or how to correct any of them (Tex. R. App. P. 34.6(e)(2)).
While this appeal is abated, two or more hearings may be required. The first should be held at the earliest opportunity to determine whether the parties can agree to correct any inaccuracies and whether another certified reporter should be appointed to review the reporter’s record and Currie’s notes and tape recordings to assist the parties and the trial court in determining whether disputed inaccuracies exist. If another reporter is appointed, a subsequent hearing would be necessary for consideration of the other reporter’s report on whether inaccuracies exist and a determination by the trial court that settles any disputes so that the reporter’s record is conformed to what occurred in the trial court.
While the appeal is abated, the Court requests the trial court (or a party at the trial court’s direction) to advise the Clerk of this Court in writing on a semi-monthly basis regarding the status of this matter.
Therefore, this appeal is abated for an initial period of sixty (60) days for the trial court to determine the issues identified above. The trial court has discretion to schedule hearings during the abatement period as necessary. All hearings shall be attended by a certified court reporter, who shall prepare a transcription of such hearings and file that transcription or those transcriptions as a supplemental reporter’s record or records in this appeal.
The trial court shall prepare written findings of fact and conclusions of law with regard to the issues identified in this abatement order. The district clerk shall prepare a supplemental clerk’s record containing such findings of fact and conclusions of law as well as any pleadings, motions, responses, or objections filed with regard to this matter and any orders signed by the trial court.
The district clerk and the court reporter shall file their supplemental records with the Clerk of this Court within seventy-five (75) days after the date of this Order. If the trial court determines that additional time is required to resolve the issues identified, the trial court (or a party at the trial court’s direction) shall file a written request for additional time explaining the reason(s) and the diligence that has been exercised in attempting to comply with the sixty-day deadline established by this Order.
PER CURIAM
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Appeal abated
Order issued and filed December 15, 2010
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