Reversed and Remanded and Memorandum Opinion filed April 7, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00961-CR

ERIC GUY MARKLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 8

Harris County, Texas

Trial Court Cause No. 1859025

MEMORANDUM OPINION

Appellant entered a guilty plea to driving while intoxicated as a second 

offender. On September 20, 2013, pursuant to the terms of a plea bargain 

agreement with the State, the trial court sentenced appellant to confinement for one 

year in the Harris County Jail and assessed a fine of $4,000. The trial court 

probated the sentence and placed appellant on community supervision for two 

years. The trial court certified that appellant has the right to appeal matters raised 

in a pre-trial motion, which the trial court denied before entry of the plea. 

Appellant filed a timely motion for new trial and notice of appeal. 
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The reporter’s record in this case was due on or before November 19, 2013. 

Sondra Humphrey, the substitute court reporter responsible for the record in this 

case, has not filed the reporter’s record. 

On May 22, 2014, we abated the appeal and directed the trial court to 

conduct a hearing to determine the reason for the failure to file the record. The 

Hon. Sherman A. Ross, the former Presiding Judge of the Harris County Criminal 

Courts at Law, was assigned to hear the proceedings regarding the past due 

reporter’s records taken by Sondra Humphrey in this case and eight other cases 

pending in both this court and the Court of Appeals for the First District of Texas. 

See Tex. Gov’t Code Ann. § 74.056 (West 2013). Judge Ross issued many orders 

and conducted numerous hearings to assist the appellate courts in obtaining the 

reporter’s records in these cases. After it became apparent that Ms. Humphrey was 

unable to provide a complete record in this case, Judge Ross ordered Ms. 

Humphrey to provide the court with her computerized stenographic notes and an 

audio recording of the trial so that another court reporter could attempt to complete 

the record. Ms. Humphrey never provided her notes or audio recording in this case. 

Records from several hearings conducted by Judge Ross were filed in this 

court. In addition, counsel for the State submitted proposed Findings of Fact and 

Conclusions of Law concerning the status of the records for this case and nine

other cases reported by Ms. Humphrey. Based upon these records and the State’s 

proposed findings and conclusions, it appeared that the reporter’s record in this 

appeal may have been “lost or destroyed” for purposes of appeal.

On November 20, 2014, this court issued an order directing Judge Ross to 

make and file findings of fact and conclusions of law concerning whether appellant 

is entitled to a new trial, as required under Texas Rule of Appellate Procedure 

34.6(f). Rule 34.6(f) of the Texas Rules of Appellate Procedure, entitled 

“Reporter’s Record Lost of Destroyed,” provides that an appellant is entitled to a 
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new trial when the reporter=s record or exhibits are lost, under the following 

circumstances:

(1) if the appellant 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 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).

The Texas Court of Criminal Appeals has determined that an incomplete 

record does not result in an automatic reversal under the 1997 amended appellate 

rules. See Issac v. State, 989 S.W.2d 754, 756 (Tex. Crim. App. 1999). Instead, a 

harm analysis is required when considering a missing or incomplete reporter’s 

record. Id. at 757. The provision in Rule 34.6 requiring an appellant to show that 

the missing portion of the record is necessary to her appeal is essentially a 

requirement that the appellate court perform a harm analysis. Nava v. State, 415 

S.W.3d 289, 306 (Tex. Crim. App. 2013) (citing Routier v. State, 112 S.W.3d 554, 

571 (Tex. Crim. App. 2003)). If the missing portion of the record is not necessary 

to the appeal’s resolution, then the loss of that portion of the record is harmless and 

a new trial is not required. Routier, 112 S.W.3d at 571–72; Issac, 989 S.W.2d at 

757.

On February 27, 2015, Judge Ross filed findings of fact and conclusions of 
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law, which were made part of a supplemental clerk’s record filed March 11, 2015. 

Accordingly, the appeal is ordered reinstated. Included in the trial court’s findings 

of fact were the following:

The Court finds that on July 7, 2014, it was determined that the audio 

in [this case] was missing the testimony of multiple witnesses.

The Court finds that on July 14, 2014, it was determined that the 

audio in [this case] that was turned over was incomplete in violation 

of the order of the Court.

The Court finds that on July 14, 2014, Ms. Humphrey stated that she 

would be able to complete and file the reporter’s records in [this case 

and three others] in the next three weeks.

Trial counsel properly filed notice of appeal, and appellate counsel 

properly filed a specific designation of reporter’s record, requesting a 

record in this case.

Ms. Humphrey’s medical condition, personal, and professional 

problems during the latter part of 2013, and early 2014, indicate she 

may not have been in a condition to transcribe the proceedings, or 

otherwise conduct herself in a professional manner. 

Ms. Humphrey never filed the completed reporter’s record as she 

stated she would do at the July 24, 2014, hearing.

The appellant bears no fault for Ms. Humphrey’s failure to complete 

and file the reporter’s record.

The reporter’s record is necessary to the appeal’s resolution.

The reporter’s record cannot be replaced, nor can the parties agree to 

the facts contained in the record.

On August 15, 2014, at the conclusion of the contempt hearing, the 

undersigned ordered Ms. Humphrey to then and there provide the 

court or court manager’s office with a copy of all audio and 

stenographic files in [this case and eight others] then pending before 

the court.

Ms. Humphrey failed to do so at that time or at any time between 

August 15, 2014, and February 26, 2015.

The exhibits and/or copies of the exhibits were filed with the Court of 

Appeals.
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Judge Ross also made the following conclusions of law:

Sondra Humphrey violated her oath to keep a correct, impartial record 

of (1) the evidence offered in the case; (2) the objections and 

exceptions made by the parties to the case; and (3) the rulings and 

remarks made by the court in determining the admissibility of 

testimony presented in the case. Tex. Gov’t Code Ann. § 52.045(b) 

(West Supp. 2014).

The appellant is entitled to a new trial. Tex. R. App. P. 34.6(f).

We agree with the trial court’s conclusion that appellant is entitled to a new 

trial. Judge Ross determined that Ms. Humphrey’s audio recording was 

incomplete. In addition, Ms. Humphrey failed to comply with the court’s order to 

turn over the audio recording. Therefore, another court reporter did not have an 

opportunity to attempt transcribe the recording and create a reporter’s record. See 

Routier, 112 S.W.3d at 567 (approving the trial court’s use of another court 

reporter to correct and edit an inaccurate reporter’s record). The record supports 

Judge Ross’s implied finding that the reporter’s record in this case is irretrievably 

lost. See Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004) (stating a

court reporter’s notes and records can be considered “lost” only if the missing 

portions of the appellate record are irretrievable); see Mendoza v. State, 439 

S.W.3d 564, 565 (Tex. App.—Amarillo 2014, no pet.) (finding appellant was 

entitled to a new trial where the court reporter was unable to transcribe certain 

portions of the record due to incomplete notes and inaudible cassettes from the

original reporter who had since passed away). Judge Ross conducted numerous 

hearings and issued many orders, including orders that Ms. Humphrey remain at 

the courthouse to work on the record in this case and eight other cases, in an effort 

to obtain complete reporter’s records. 

We also agree with Judge Ross’s finding that the missing reporter’s record is 

necessary to appellant’s appeal. A new trial is required when the missing record is 
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necessary to the appeal’s resolution. Osuch v. State, 976 S.W.2d 810, 812 (Tex. 

App.—Houston [1st Dist.] 1998, no pet.) (concluding a destroyed videotape of the 

driver performing field sobriety tests was “necessary to the appeal’s resolution” 

and the defendant was entitled to a new trial because he challenged whether a 

custodial interrogation occurred during his performance of the tests).

We have no reporter’s record from any proceedings in the trial court. Before 

he entered a plea, appellant filed motion to dismiss based on the destruction of 

evidence. Specifically, appellant alleged there was no video of the scene as 

required by procedures of the local police department and articles 2.131–.1385 of 

the Texas Code of Criminal Procedure. See Tex. Code. Crim. Proc. art. 2.135 

(West Supp. 2014) (partially exempting peace officers from reporting racial 

profiling data when an audio and video recording of all motor vehicle stops is 

made and retained for at least 90 days). In his motion for new trial, appellant 

argued that the missing videotape would have shown that he did not run a stop sign 

as alleged by the arresting officers. According to the motion, the trial court signed 

an order requiring that the scene video be preserved and a copy provided to 

appellant’s counsel. Also according to the motion, the trial court heard testimony 

from the police department’s custodian of records regarding the missing videotape

at the hearing on appellant’s pre-trial motion. In addition, appellant stated that he 

made an oral motion to suppress the arrest at the hearing. Thus, the reporter’s 

record is necessary to review these issues. See, e.g., Rachal v. State, 917 S.W.2d 

799, 809 (Tex. Crim. App.1996) (stating that reviewing court considers only the 

evidence adduced at the suppression hearing in reviewing the denial of a motion to 

suppress); Cardenas v. State, 857 S.W.2d 707, 710 (Tex. App.—Houston [14th 

Dist.] 1993, pet. ref’d) (holding that a record containing an oral motion to suppress 

preserved error).

Appellant’s ability to present meaningful issues on appeal is severely limited 
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in the absence of a reporter’s record. Appellant cannot challenge the denial of his 

oral motion to suppress the arrest. In addition, appellant’s challenge to the missing 

videotape evidence is prejudiced by the absence of the testimony from the pre-trial 

hearing. We therefore conclude that the reporter’s record is necessary to the 

appeal’s resolution and appellant has been harmed by the absence of a reporter’s 

record. See Kirtley v. State, 56 S.W.3d 48, 52 (Tex. Crim. App. 2001) (holding the 

record from the punishment hearing in a proceeding to adjudicate of guilt is 

“necessary to the appeal’s resolution”); Osuch, 976 S.W.2d at 812 (holding a 

destroyed videotape of field sobriety test was “necessary to the appeal’s 

resolution” in a DWI case where appellant alleged a custodial interrogation 

occurred during the test). The trial court’s judgment is reversed, and this cause is 

remanded for a new trial.

PER CURIAM

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

Do Not Publish—Tex. R. App. P. 47.2(b).