Opinion
08-23-00129-CR
10-05-2023
VICTOR ALVAREZ, Appellant, v. THE STATE OF TEXAS, State.
Appeal from the 81st/218th District Court of Wilson County, Texas (TC# 11-07-00090-CRW)
Before Rodriguez, C.J., Palafox, and Soto, JJ.
ORDER
PER CURIAM.
On August 8, 2023, this Court abated and remanded this cause to the trial court for a hearing to determine whether the reporter's record in this cause is incomplete. On September 22, 2023, a supplemental clerk's record containing the trial court's findings was filed in this Court. The trial court's findings indicate that the reporter's record is incomplete, and the court reporter for the 218th District Court, on the date of the missing plea hearing, passed away on December 14, 2016.
The trial court's findings further indicate that (1) the District Clerk for Wilson County is not and has not ever been in possession of a paper or electronic record from the court reporter; (2) the District Clerk for Atascosa County (also in the 218th Judicial District), likewise is not and has never been in possession of a paper or electronic record from the court reporter; and (3) Karen Turner, the wife of the deceased court reporter, stated that she neither had nor knew of anyone else who had any such records in their possession.
After reviewing the trial court's findings, this appeal is before the Court on its own motion to determine if the missing portions of the reporter's record have been lost or destroyed, and if so, whether they can be replaced by stipulation or agreement of the parties, and if not, whether the missing portions are necessary to the disposition of this appeal. See Tex. R. App. P. 34.6(f) (providing that a lost or destroyed portion of the record may be replaced by the agreement of the parties); See also International Fidelity Insurance Co. v. State, 586 S.W.3d 9, 12 (Tex. Crim. App. 2019) (requiring a record to be "recorded but [] later lost or destroyed" to apply Texas Rule of Appellate Procedure 34.6(f)).
The Court finds that an evidentiary hearing is necessary to determine whether the missing portions of the record (1) are lost or have been destroyed; (2) whether the parties can replace the missing portions by stipulation; and (3) if not, whether the missing portions are necessary to the disposition of this appeal. It is therefore ORDERED that this case is abated until further order of the Court. The trial court is directed to hold a hearing on or before November 5, 2023. The trial court is further ordered to prepare findings on each of the above questions and forward the same to the District Clerk Wilson County, Texas, on or before November 5, 2023. The District Clerk shall prepare and forward a supplemental clerk's record containing the findings and forward the same to this Court on or before November 14, 2023. Further, a transcription of the hearing shall be prepared, certified, and filed with this Court on or before November 14, 2023. The case shall be abated until November 14, 2023, or the hearing record is received, whichever occurs first.
IT IS SO ORDERED.