Opinion issued April 16, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00632-CR

———————————

ISRAEL CASTILLO, Appellant

V.

THE STATE OF TEXAS, Appellee

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

Harris County, Texas

Trial Court Case No. 1863072

O P I N I O N

On July 2, 2013, following a plea of not guilty, appellant, Israel Castillo, 

was convicted by a jury of the misdemeanor offense of assault and was sentenced 

by the court to ninety days’ confinement in the county jail. See TEX. PENAL CODE 

ANN. § 22.01(a)(1) (West Supp. 2014). Castillo timely appealed from the trial 
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court’s judgment on July 2, 2013. The trial court clerk filed the clerk’s record on 

October 22, 2013.

The reporter’s record from the trial was due on October 30, 2013. On 

November 7, 2013, the Clerk of this Court notified the court reporter, Sondra 

Humphrey, that the reporter’s record was late. Humphrey responded on January 

16, 2014, by filing a motion for an extension of time. We granted the motion and 

ordered Humphrey to file the reporter’s record by February 14, 2014. On February 

25, 2014, Humphrey filed a second motion for extension, which we denied, and we 

required Humphrey to file the reporter’s record by March 14, 2014.

On April 15, 2014, we abated the appeal and remanded the case to the trial 

court for a determination regarding why the reporter’s record had not yet been filed 

and for the trial court to set a date certain when the reporter’s record would be 

filed. The Honorable 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 Humphrey in this case and eight other 

cases pending in both this Court and the Court of Appeals for the Fourteenth 

District of Texas. See TEX. GOV’T CODE ANN. § 74.056 (West 2013). Judge Ross 

issued many orders and conducted numerous hearings in an effort to obtain the 

reporter’s records in these cases. See TEX. R. APP. P. 35.3(c). Although Judge 

Ross afforded Humphrey multiple opportunities to file the record, it became 
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apparent that she was unable to provide a complete record in this case. Judge Ross 

therefore appointed a substitute court reporter, Brenna DeMoss, the official court 

reporter for County Criminal Court at Law No. 11 in Harris County, to evaluate 

whether a complete reporter’s record could be prepared, certified, and filed in this 

case. Further, after finding that Humphrey violated several of the court’s orders, 

Judge Ross held her in contempt and, on August 15, 2014, sentenced her to 

confinement in the Harris County Jail for 30 days and a $500 fine.

Finally, on March 3, 2015, the trial court signed findings of fact and 

conclusions of law in this case, which were filed with this Court in a supplemental 

clerk’s record on March 11, 2015. Judge Ross found that “Ms. Humphrey had 

been paid in full for the completed Matamoros and Castillo records.” Further, the 

following are included in the trial court’s “Supplemental Findings of Fact”:

4. Ms. Humphrey provided this court with her computerized 

stenographic notes.

5. Ms. Humphrey provided this court with an informal audio 

recording of the proceedings.

6. At the request of the parties, the undersigned judge directed 

Brenna DeMoss, official court reporter for County Criminal 

Court at Law No. 11, of Harris County, Texas, to review the 

audio files, and stenographic notes submitted to the Court by 

Ms. Humphrey.

7. Ms. DeMoss could not reconstruct a complete reporter’s record 

based upon the audio and stenographic notes submitted to the 

Court by Ms. Humphrey.

8. 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 
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proceedings, or otherwise conduct herself in a professional 

manner. . . . 

. . .

10. The appellant timely filed a notice of appeal.

11. This case did not involve a waiver of a court reporter, nor was it 

a mere formality or summary proceeding.

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

complete and file the reporter’s record.

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

14. The reporter’s record cannot be replaced by agreement of the 

parties to the facts contained in the record, if a complete and 

legible record exists.

. . .

16. Based upon Ms. Humphrey’s representations to this court 

regarding the status of the reporter’s record, and her failure to 

either file the completed record or provide the court with 

stenographic notes capable of being transcribed by another 

official court reporter using the same software system resulting 

in a complete record[,] this Court does not find Ms. Humphrey 

to be credible.

17. The undersigned finds Ms. Humphrey failed to file the record 

because she had neither a complete stenographic record, nor a 

complete audio recording of the proceedings in the trial court; 

or she willfully refused and continues to refuse to fully and 

accurately transcribe her notes.

18. This Court does not believe a complete record will ever be filed 

by Ms. Humphrey or another court reporter.

Judge Ross then made the following conclusions of law:

1. 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. . . .

2. The appellant is entitled to a new trial.

Pursuant to Texas Rule of Appellate Procedure 34.6(f), if, through no fault 

of the appellant, a reporter’s record is lost or destroyed, and the portion of the 
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record that is lost or destroyed is necessary to the appeal’s resolution and cannot be 

replaced by agreement of the parties, the appellant is entitled to a new trial. TEX.

R. APP. P. 34.6(f); see Mendoza v. State, 439 S.W.3d 564, 566 (Tex. App.—

Amarillo 2014, no pet.). If, however, the missing portion of a reporter’s record is 

not necessary to the appeal’s resolution—and the appellant is therefore not harmed 

by the incomplete reporter’s record—the appellant is not entitled to a new trial. 

See TEX. R. APP. P. 34.6(f)(3); Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. 

App. 2013); Routier v. State, 112 S.W.3d 554, 571–72 (Tex. Crim. App. 2003); 

Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999).

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

trial. Although Judge Ross provided Humphrey with numerous opportunities to 

provide a complete record and, when Humphrey proved unable to do so, appointed 

a substitute court reporter to transcribe the record from Humphrey’s stenographic 

notes and audio recordings, no record has been prepared or certified, and the 

substitute reporter testified that she was unable to prepare, certify, and file a 

reporter’s record from Humphrey’s notes and audio recordings. See Johnson v. 

State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004) (stating that court has 

authority to appoint substitute court reporter to prepare and certify record from 

original reporter’s notes). The record therefore supports the trial court’s findings

that Humphrey’s stenographic notes and audio recording were incomplete and that 
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the missing portion of the record—the entire reporter’s record—is irretrievably lost 

or destroyed. See TEX. R. APP. P. 34.6(f)(2); Mendoza, 439 S.W.3d at 565–66; see 

also Johnson, 151 S.W.3d at 196 (holding that court reporter’s notes and records, 

or portions thereof, can only be considered lost if missing portions of record are 

irretrievable and may not be considered lost based solely on reporter’s repeated 

failure to file record). 

The record further supports the trial court’s finding that the missing 

reporter’s record is necessary to appellant’s appeal. See TEX. R. APP. P. 34.6(f)(3). 

There is no reporter’s record from any portion of the trial in this case. And, in the 

absence of a reporter’s record, we must presume the regularity of the documents in 

the trial court and are bound by the recitations in the records of the trial court, 

including the judgment. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. 

App. 1984). Therefore, without any reporter’s record, and “[g]iven the 

circumstances of this case, it would strain credulity to conclude that the destroyed 

reporter’s record was unnecessary to the resolution of the appeal.” Villagomez 

Invs., L.L.C. v. Magee, 294 S.W.3d 687, 690 (Tex. App.—Houston [1st Dist.] 

2009, no pet.); see also TEX. R. APP. P. 34.6(c)(5) (requiring that record include all 

evidence admitted at trial for criminal appellant to raise argument as to sufficiency 

of evidence); id. 38.1(g), (i) (requiring appellant’s brief to contain statement of 

facts “supported by record references” and argument “with appropriate citations . . 
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. to the record”); Bryant v. State, No. 14-13-00922-CR (Tex. App.—Houston [14th 

Dist.] Apr. 7, 2015, no pet. h.) (“Appellant’s ability to present meaningful issues 

on appeal after a jury trial is severely limited in the absence of a reporter’s 

record.”); cf. Issac, 989 S.W.2d at 757 (declining to adopt automatic rule of 

reversal in cases with lost or destroyed reporter’s record, but recognizing that “the 

lack of a record may in some cases deprive an appellate court of the ability to 

determine whether the absent portions are necessary to the appeal’s resolution”).

Finally, the court reporter represented to this Court, in her January 16, 2014 

motion for extension of time to file the reporter’s record, that appellant requested 

that the reporter’s record be prepared, see TEX. R. APP. P. 34.6(f)(1), and the record 

supports the trial court’s findings that appellant “bears no fault” for the reporter’s 

inability to produce the reporter’s record, see id. 34.6(f)(2), and that the reporter’s 

record cannot be replaced by agreement of the parties, see id. 34.6(f)(4).

Accordingly, we reinstate this appeal, reverse the trial court’s judgment, and 

remand the cause for a new trial. See TEX. R. APP. P. 34.6(f), 43.2(d); Mendoza, 

439 S.W.3d at 566. Any pending motions are dismissed as moot.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).