1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00210-CR

__________________

MICHAEL CLINT WALLACE JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 1A District Court

Tyler County, Texas

Trial Cause No. 13,018

__________________________________________________________________

ORDER

Based on this Court’s authority under Texas Rule of Appellate Procedure 

34.6(f), we abated the proceedings in the above cause and asked the trial court to 

determine whether a portion of the reporter’s record from Michael Clint Wallace’s 

trial had been lost or destroyed.

1 In response, the trial court conducted several 

hearings in January and April 2020. During these hearings, the trial court considered 

the testimony and the arguments presented by the parties about whether an accurate 

1

Tex. R. App. P. 34.6(f). 
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copy of the items missing from the record could be created and then filed so they are 

in the record created in the trial court so this Court could have a complete record 

from the trial available to review in the appeal.

The transcript of the hearings the trial court conducted show a substitute-court 

reporter was responsible for transcribing the proceedings from the two days of 

Wallace’s trial currently missing from the record filed in Wallace’s appeal. The 

hearings also show the reason that the trial court had a substitute-court reporter 

present on the two days of trial now at issue was because the court’s official-court 

reporter was absent and unavailable during the days now at issue in Wallace’s 

appeal.

After finishing gathering evidence in the hearings on the matter, the trial court 

reduced its findings from the hearings to writing. One witness who testified in the 

hearings was a court reporter the State hired to evaluate whether she could create an 

accurate transcript of the proceedings from the records the State obtained from the 

substitute-court reporter after we abated the proceedings so the trial court could 

determine whether the records now at issue were irretrievably lost. Although the 

reporter the State hired created a transcript, the trial court refused to find that it 

accurately reflects what occurred while the court was in session during the days 

currently missing from the appellate record. In another finding, the trial court found 
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“a significant portion of the [substitute]-court reporter’s notes and records, namely, 

the first two days of the trial proceedings, [have] been lost or destroyed.”2

After we reinstated Wallace’s appeal, the State filed a brief attacking the trial 

court’s findings as premature. The State concludes the evidence from the hearings 

fails to show the substitute-reporter’s records have been irretrievably lost; instead, 

the State suggests the record shows the substitute-reporter’s notes and records still 

exist. According to the State, a reporter need only access the proprietary software 

needed to read the substitute-reporter’s notes to determine whether, from them, an 

accurate transcript from the first two days of Wallace’s trial can be prepared. 

The evidence from the hearings does not show the trial court ever ordered the 

substitute reporter to allow another reporter to access the proprietary software and 

the dictionary needed to read and interpret the notes the substitute reporter created 

when she was using her machine. While we have no quarrel with the trial court’s 

finding that the transcript the substitute reporter created after finding her notes is not 

2

The trial court found the substitute reporter’s transcript was “not a true and 

correct transcription of all the evidence and other proceedings [that occurred] during 

[the] trial.” And the trial court found the transcript of the proceedings that a court 

reporter hired by the State created based on her review of the transcript the substitute 

reporter filed and the audio files the substitute reporter captured on the equipment 

she used when she was assigned to report the proceedings could still not access “any

of the stenographic notes from [the substitute reporter’s] stenograph machine, the 

backup card, or the machine’s internal memory and use those to recreate the 

transcript.” 
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an accurate transcript of the proceedings, we agree with the State the record does not 

yet show whether the notes needed to do so have been lost or destroyed.3 For that 

reason, more must be done before it is possible to declare that the proceedings now 

missing have been lost or destroyed. 

The record reflects the trial court has not exercised the power it has to appoint 

a court reporter, chosen by the court, to examine the files and records that the 

substitute reporter created on April 15-16, 2019, and to evaluate whether the notes 

and files, after accessing them through the proprietary software and the substitute 

reporter’s dictionary can be read and interpreted so that, by using them along with 

the audio files the substitute reporter captured on recorders, an accurate transcript of 

the proceedings now missing can still be prepared. Under Texas law, a reporter’s 

notes and records from a proceeding are lost only if they are irretrievable.

4 That fact 

cannot yet be determined unless the trial court takes several additional steps, which 

are not exclusive, designed to:

(1) determine whether the substitute reporter still has access to her Case 

CATalyst software and personal dictionary;

(a) if so, order the substitute reporter to make the software,

dictionary, and all notes—both the files from the two days of 

proceedings she created with her machine and the files she 

3

The testimony from the hearings reflects the proprietary software the 

substitute reporter used with her machine is Case CATalyst software. The dictionary 

the testimony mentions is a dictionary the substitute reporter created with the 

software to interpret her notes.

4

Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004).
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created using any audio recorders—available to a courtappointed reporter so that reporter may evaluate and provide an 

opinion to the trial court about whether it is possible to create a 

certifiable record of the proceedings that occurred in Wallace’s 

trial on April 15-16, 2019; 

(b) if not, either because the substitute reporter no longer has 

access to her Case CATalyst software or because she no longer 

has access to her dictionary, the trial court must then determine 

whether other software, available from some other source, would 

allow a court-appointed reporter to access the files the substitute 

reporter placed on her machine and then examine them to 

evaluate whether from them and the audio files the substitute 

reporter captured on the equipment she used to record the 

proceedings would permit the court-appointed reporter to 

transcribe all of the matters significant to the reporter’s ability to 

create an accurate record of the proceedings that are currently 

missing from the record before this Court; 

(1) schedule a hearing after the court-appointed court 

reporter files the above letter with the District Clerk. When 

scheduling the hearing, allow the parties time to file 

motions contesting the court-appointed reporter’s opinion 

should a party desire to do so. The motions filed by the 

parties must set out the grounds and legal arguments 

explaining why that party is contesting the opinion the 

court-appointed reporter expressed in the letter.

(2) if a party files a motion, decide whether the courtappointed reporter should prepare a transcript even after 

having stated an accurate transcript cannot be prepared by 

using the substitute reporter’s files in a hearing on any 

party’s motion contesting the reporter’s opinion. During 

the hearing, determine whether the court will, regardless 

of the court-appointed reporter’s opinion, require the 

court-appointed reporter to prepare a transcript of the 

proceedings that are now missing from the appellate 

record using the substitute reporter’s files and by using the 

reporter’s best efforts.
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(2) If the court-appointed court reporter’s letter reflects the reporter

believes he or she can prepare a transcript that can be certified of the 

proceedings now missing from the record on appeal with the recordings 

and audio files the substitute reporter captured together with the 

substitute-reporter’s notes from her machine, the trial court must then 

order the court-appointed reporter to transcribe the record and to 

prepare a certificate, if the reporter determines he or she can do so after 

preparing the transcript, stating the transcription the reporter prepared 

is an accurate account of the proceedings that occurred on April 15 and 

16 in Wallace’s trial while the trial court was in session. The courtappointed court reporter is directed to file a certification stating whether 

(or not) the transcript prepared by the court-appointed reporter is an 

accurate transcript of the proceedings that occurred in Wallace’s trial 

on April 15-16, 2019, while the court was in session.

(a) If however, the court-appointed reporter determines she 

cannot certify the transcript as accurate after preparing it, the 

reporter is to attach an explanation to the transcript that explains 

why the reporter determined, after working on the transcript, why 

and where, by page and line where possible, the transcript from 

the court-appointed reporter cannot be certified as accurate.

(3) after the court-appointed reporter files the transcript described 

above with the district clerk, and regardless of the statement made by 

the court-appointed reporter in the accompanying certification, the trial 

court must allow the parties to file objections, if any, to the accuracy of 

the transcript prepared by the court-appointed reporter and the opinion 

expressed in the court-appointed reporter’s certification.

(4) If a dispute arises about whether the transcript is accurate, the trial 

court must schedule a hearing on the motion a party files pointing out 

the nature and the reasons for the dispute and allow the parties to 

present argument for and against any claim alleging the transcript 

prepared by the court-appointed reporter is or is not accurate. These 

motions, if filed, must comply with the requirements in Rule 34.6 of the 

Rules of Appellate Procedure. 

(5) conduct a hearing on any motions pointing out the nature and 

reasons the party is disputing the accuracy of the court-appointed 
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reporter’s transcript or the accompanying certification. Following the 

hearing, the trial court is to reduce its findings of fact to writing and 

provide the Court with the findings identified in Rule 34.6 of the Texas 

Rules of Appellate Procedure.

5 Lastly, 

(6) determine and in the exercise of the trial court’s sound discretion

take any additional steps the trial court determines are reasonably 

required to allow the trial court to decide if the portions of the appellate 

record currently missing have been irretrievably lost.

After completing the above steps and any additional steps that the trial court 

finds are reasonably required, the trial court must then require a court reporter to 

prepare a reporter’s record of the hearings the trial court conducted to comply with 

this order and then file the reporter’s record with the Ninth Court of Appeals, 

together with any transcript prepared by the court-appointed reporter of the first two 

days of Wallace’s trial, that is the days of the reporter’s record missing from the 

appellate record. The District Clerk is to file a supplemental clerk’s record that 

contains all orders the trial court signed to discharge the duties created by this order. 

The supplemental record is due 120 days from the date of this order. The Court 

will reinstate the appeal without further order when the supplemental clerk’s and 

reporter’s records are filed in this Court.

ORDER ENTERED July 21, 2021.

PER CURIAM

Before Golemon, C.J., Horton and Johnson, JJ.

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Tex. R. App. P. 34.6(f).