Opinion
05-22-00701-CR
06-06-2023
CARLOS RAUL LARIOSTREJO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F19-22702-P
ORDER
ERIN A. NOWELL JUSTICE
We REINSTATE this appeal.
The reporter's record is lacking State's exhibit 192. On May 10, 2023, this Court ordered court reporter Crystal Brown to file State's exhibit 192 through the TAMES portal within fifteen days or, if the exhibit was not available to her, to file a statement to that effect within fifteen days. We also ordered that if Ms. Brown could not file State's exhibit 192 through the TAMES portal, then she was to file within twenty days a written statement explaining the steps taken to file the exhibit and an explanation of why the exhibit cannot be filed into TAMES. More than twenty days have passed, and Ms. Brown has not filed State's exhibit 192 or filed a written statement that the exhibit was not available to her to file or that she was unable to file it. Ms. Brown has not communicated with this Court about the case since April 4, 2023.
It is the court reporter's duty to file the reporter's record, including all exhibits, in an electronic format through the Texas Appeals Management and E-filing System records submission portal (TAMES). See TEX. R. APP. P. APP. C, R. 2(B); UNIF. FORMAT MANUAL FOR TEX. REPORTER'S RECS. § 8 (AMENDED JUNE 28, 2010), https://www.txcourts.gov/All_Archived_Documents/SupremeCourt/Administrative Orders/miscdocket/10/10907700.pdf. Audio and video files may be submitted in MP3 or MP4 formats. Off. of Ct. Admin. TAMES RSP User Guide 7 (2013), https://rsp.txcourts.gov/training/TAMES-RSP-User-Guide.pdf. Physical media cannot be sent to the appellate court unless the appellate court orders the physical item filed. See Uniform Format Manual at §§ 8.9. 8.10.
State's exhibit 192 was not filed with the March 15, 2023 supplemental reporter's record. The exhibit index describes State's exhibit 192 as "Jason Flores Statement (Impeachment)." The trial court admitted the exhibit at volume 4, page 163 of the reporter's record. That page of the reporter's record shows State's exhibit 192 is an audio and video recording of witness Jason Flores that was played from "8 minutes and 12 seconds" to "9 minutes and 17 seconds." State's exhibit 192 has not been filed electronically through the Texas Appeals Management and E-filing System records submission portal (TAMES).
This Court has not ordered the physical discs or drives containing the recording to be filed. Therefore, it is Ms. Brown's duty, as the court reporter, to file the electronic media exhibit through the TAMES portal.
"The trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed." TEX. R. APP. P. 35.3(C). WE ORDER the trial court to hold a hearing within THIRTY DAYS of the date of this order with Ms. Brown and counsel for appellant and the State present and make findings concerning:
• why the court reporter has not filed State's exhibit 192 into TAMES;
• whether State's exhibit 192 was admitted into evidence, whether it was admitted for all purposes, for a limited purpose, or for record purposes only, whether the recording on State's exhibit 192 was played or published before the jury in open court, and whether the jury had access to the recording during deliberations.
• what is State's exhibit 192 physically (e.g., CD, DVD, Blu-ray disc, flashdrive, etc.), the electronic contents of the exhibit (e.g., cell phone records, recordings of 911 calls, surveillance, police officer body camera; downloads of cellular telephones, etc.), and the format of each recording on the exhibit (e.g., .mp3, .mp4, .wav, .pdf, etc.);
• the kind of device on which State's exhibit 192 can be played (e.g., CD player, DVD player, Blu-ray player, personal computer, etc.); whether special software is required to view the recording and the name of the software; whether the recording is encrypted requiring passwords for the recording to play; whether the State can provide the court reporter with the software and/or passwords to play the recording on the exhibit; whether the court reporter will be able to file the software and/or passwords with this Court so that this Court can play the recording on the exhibit; and whether the recording actually plays using the applicable device and software;
• whether the recording in its current format on State's exhibit 192 can be uploaded to TAMES;
• if not, whether the recording on State's exhibit 192 can be converted by the court reporter to a format that can be uploaded to TAMES;
• if not, whether the State or appellant's counsel can produce a copy of the recording on State's exhibit 192 in a format that can be uploaded to TAMES and that accurately duplicates with reasonable certainty the original recording;
• if the recording is in a format that can be uploaded to TAMES, what are the reasons why uploading the recording to TAMES has not occurred and whether uploading the recording to TAMES is inappropriate or inadvisable; and
• whether appellant and the State can prepare their briefs without State's exhibit 192 being loaded into TAMES.
If the trial court finds that the recording on State's exhibit 192 in its current format cannot be uploaded to TAMES, and the trial court finds that the State's or defendant's counsel can produce a copy of the recording on the exhibit in a converted or different format that can be uploaded to TAMES, the trial court shall order the attorney to make the recording in the uploadable format available to the court reporter to upload to TAMES. The court reporter shall upload the recording to TAMES within TEN DAYS after receiving the uploadable copy of the recording.
If the trial court finds that the recording on State's exhibit 192 cannot be converted to a format that can be uploaded to TAMES, and that counsel for appellant and the State cannot provide a copy of the recording that can be uploaded to TAMES, and that the recording requires special software and/or passwords to play the recording, the trial court shall order the attorney for the State to provide the court reporter with the appropriate software, passwords, and instructions for playing the recording that the court reporter can file with this Court so that this Court can play the recording.
If the trial court determines that all or part of the recording on State's exhibit 192 cannot be played, the trial court shall make findings whether the unplayable or unviewable parts of the exhibit are necessary to the appeal's resolution, whether the inability to play the recording is due to appellant's fault, and whether the unplayable part of the recording can be replaced by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original recording.
The trial court shall file a supplemental clerk's record containing the court's written findings and orders pursuant to this order within FORTY-FIVE DAYS of the date of this order. The court reporter shall file a supplemental reporter's record containing a transcription of the hearing required by this order within FORTY-FIVE DAYS of the date of this order.
We DIRECT the Clerk to send copies of this order to the Honorable Raquel Rocky Jones, Presiding Judge, 203rd Judicial District Court; Crystal R. Brown, Court Reporter for the 203rd Judicial District Court; and to counsel for all parties.
This appeal is ABATED for the trial court to comply with the above order. The appeal will be reinstated when the supplemental clerk's record containing the trial court's findings, recommendations, and orders is received or at such other time as the Court deems proper.