### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00102- CR

Isaul T avera, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 299 TH JUDICI AL DISTRICT NO. D-1 -DC- 00- 0070 29, TH E H ONO RAB LE JO N N. WI SSER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

P ER CURIUM

I saul Tave ra plea d e d g

u il ty to u n la w f u l r estraint in exchang e for a suspended sentenc e and place ment on community supervision. See Tex. Penal Code § 20.02; Tex. Code Crim. Proc. art. 42.12, § 3. The trial court subsequently revoke d his community supervision and sentenced him to three y ear s’ imprisonment. SeeTex. Code Crim. Proc. art. 42.12, §§ 21, 23. Tave ra now appea ls the judg ment revokinghis community supervision. 1

Tave ra orig inally pleade d g uilty in 2001. His community s up er v i s i o n was revoke d in 1 May 2006. No notice of appea l was filed. Howeve r, in Dec ember 2012, Tave ra filed an application for a writ of habea s corpus pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedur e alleg ing that he was denied his rig ht to appea l. See Tex. Code Crim. Proc. art. 11.07. Appar ently , appellate counsel was only appointed afte r the deadline for filing a notice of appea l had passed beca

use Tave ra’ s counsel at the revoc ation hear ing failed to timely withdraw from re p re s en t at i o n. Relying on the trial court’s deter mination that Tave ra desired to appea l but was denied his ri gh t t o appeal throug h no fault of his own, the Court of Criminal Appea ls g rante d Tave ra the opportunity to file an out-of-time appea l. See Ex parte T a ve r a , No. AP-76,949, 2013 WL172861, *1 (Tex. Crim. App. J an. 16, 2013).The reporter ’s re co rd in this appea l was originally due on April 5, 2013. After the

court repor

ter failed to respond to this Court’s notice that the rec ord was overdue , we issued an order direc ting the court reporter of t he 299th District Court, Ang ela Chambers, to tender the reporter’ s

rec ord for filing no later than J une 12, 2013. Ms. Chambers responde d to our notice, explaining that
Tave ra’ s case was transcr ibed by the former court repor ter for the 299th District Court, L eon J ustice. Subsequent communications with this Court indicated that another co u rt repor ter, J ennife r Corley , also handled por tions of the case , althoug h Mr. J ustice transc ribed the r evocation hear ing. We wer e then notified that Mr. J ustice was experiencing technica l difficulties in producing

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his portion on the rec ord. Appar ently , Mr. J ustice is unable to produce a proper ly formatted rec ord from his rec ording s, and his older version of court repor ting softwar e is not co m p at i b l e wi th the

curr ent version used by Ms. Chamb er s . Thus, attempts to conver t the data from Mr. J ustice’s

rec ording s into a format that could produc e a pr operly formatted rec ord wer e unsucce ssful. There

wer e subsequent communications with Ms. Chambers about the possibili ty of her producing a rec ord from Mr. Justi ce’ s rec ording s. 3

On J anuar

y 9, 2014, we rec eived, via elec tronic filing from Ms. Chambers, a rec ord of the re vocation hea

ring in this case . Howeve r, the rec ord does not comply with the Texas Rules of Appellate Procedur e. I t is not proper ly formatted nor is it cer tified by Mr. J ustice. Fur

ther, there

Ms. Corley attempted to file her portions of the rec ord; howeve r, we initially reje cted her 2 p o rtions of the rec ord beca use the rec ord must be filed as one consolidated rec ord rathe r t h an piece meal. See Tex. R. App. P

. 2(a)

. We eventua lly filed Ms

. Corl ey ’s portion of t he record in a supplemental re cord while waiting for Mr. Justice’s portion of the r ecor d to be filed. The last communication from Ms. Chambers, an email rec eived o n De ce m ber 4, 2013, 3 indicated that she was in the proce ss of “re writing ” Mr. J ustic e ’ s tr a n s c ript (an unformatted transcr ipt p ro duced when importing the data in ASCI I format) , but abandone d that proce ss beca use o f deadlines she fac ed in her own workloa d. 2are no exhibi ts acc ompanying this rec ord, and we have been informe d t h at t h ere has been some

difficulty in locating the exhibit s that were admitted during the re vocation hea ring

. T h e rules of appellate proce dure g ive appellate courts the power to take actio n s desig ned to ensure the prepa ration and filing of the rec ord, including the appointment of a substitut e court reporter to prepa

re and file t he record from t he original court repor ter’s notes. S

ee Jo h n s on

v. State , 151 S.W .3d 193, 196 (Tex. Crim. App. 2004) (footnotes omitted); Rou tier v. State , 112 S.W .3d 554, 563–70 (Tex. Crim. App. 2003). Ba sed on the information provided to this Court, it appea rs that the repor

ter’s rec ord from the revoc ation h ea ri n g may possibly be prepa red from
Mr. J ustice’s rec ording s. There fore , we abate this a ppeal and rema

nd this c ase to the trial court to conduct a hear ing to de termine:
(1) whether Mr. J ustice is capa ble of p re p aring a repor

ter’s rec ord of the revoc ation hear ing in this appe al; (2) whether Ms. Chambers ca n re v i ew Mr. J ustice’s rec ording s and utiliz e them to prepa re a repor ter’s r ecor d of the re vocation hea ring ; (3) whether

the exhibit s admitted during the re vocation hea ring can be located; (4) whether a signific ant exhibi t or signific ant portion of the repor ter’s rec ord is “irre trievably” lost; and 4 (5) if the rec ord i s not “irre trievably” lost, a rea sonable time period within which the repor ter’s r ecor d can be prepa

red a nd filed with this Court.

Texas Rule of Appellate Procedur e 34.6(f) provides that an appellant is e ntitled to a new 4 trial if a signific ant and nece ssary part of the repor ter’s rec ord is lost or destroy ed throug h no fault of his own, the appellant timely reque sted the rec ord, and the parties cannot ag ree to the rec ord. See Tex. R. App. P. 34.6(f)

. A court repor ter’s notes and rec ords, or portions there of, can be considere d “lost” only if the m i s s i ng portions of the appellate rec ord are irretr ievable. Johnson v. State , 151 S.W .3d 193, 196 (Tex. Crim. App. 2004). 3This hear ing should be held at t he earliest o p p o rt u n i t y . To save tim e, the parties may stipulate to

some of the issues to be r esolved.

The trial court shall deter

mine the issues identified above and ultimately deter mine: (1) a rea sonable time pe riod in which the re porter’ s rec ord ca n be prepa

red and filed in this Court,

or (2) whether the repor

ter’s rec ord is lost or destroy ed as contemplated by Texas Rule of Appellate Procedur e 34.6(f)

. See Johnson , 151 S.W .3d at 196. The trial court shall prepa re written finding s of fac t and conclusions of law with reg ard to the issues identified in this opinion. The district cler k shall prepa

re a supplemental cler

k’s rec ord containing such finding s of fac t and conclusions of law

as well as any order s signe d by the trial court. The court repor ter shall prepa

re a transcr iption of the hear ing a nd file that transc ription as a supplementa l reporte r’s re cord in this appea l. The district cler

k and the court repor

ter shall file their supplemental rec ords with the Clerk of this Court within 30 day s of the date of this opinion. I f the trial cour t d et ermines that additional time is require d to resolve the issues identified, the trial court shall file a written reque st for additional time explaining the rea son(s) and the diligenc e which has been exercised in attempting to comply with the deadline e stablished by this opini on.

Be fore J ustices Pury ear , Goodwin, and F ield Filed: January

22, 2014 Do Not Publish

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