Opinion
05-23-00239-CR 05-23-00240-CR
08-08-2023
DAVID STEVEN LEAKEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F22-23831-S, F22-23866-S
ORDER
DENNISE GARCIA JUSTICE
On August 7, 2023, this Court received a communication from the court reporter, Lisa Jackson, concerning State's exhibit 27. Ms. Jackson states that she could not upload the exhibit into TAMES. She states, "There are query files I am assuming that work together. There's a player that has to also be downloaded. There are 108 jail call files. I did include the instructions along with the transcript I am filing with the District Clerk's office."
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/AdministrativeOrders/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. When an exhibit exceeds the maximum file size to pass through the TAMES portal, the court reporter must separate the exhibit file into multiple smaller files that meet the TAMES portal's limits. See Uniform Format Manual at §§ 8.9, 8.10; Off. of Ct. Admin. TAMES RSP User Guide 8 (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.
This Court has not ordered the physical disc or drive containing the recordings to be filed. Therefore, it is Ms. Jackson's duty, as the court reporter, to file the electronic media exhibits 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. Jackson and counsel for appellant and the State present and make findings concerning why State's exhibit 27 has not been filed, including:
• whether State's exhibit 27 was admitted into evidence, whether it was admitted for all purposes, for a limited purpose, or for record purposes only; whether State's exhibit 27 was played or published before the jury in open court; and whether the jury had access to the exhibit during deliberations;
• on what kind of drive State's exhibit 27 is recorded (e.g., CD, DVD, Blu-ray disc, flashdrive, etc.), the electronic contents of the exhibit (e.g., jail calls, cell phone records, recordings of 911 calls, etc.), and the format of each recording on the exhibit (e.g., .mp3, .mp4, .wav, .pdf, etc.);
• whether special software is required to view or hear the recordings and the name of the software; whether the recordings are encrypted requiring passwords for the recordings to play; whether the State can provide the court reporter with the software and/or passwords to play
the recordings; whether the court reporter will be able to file the software and/or passwords with this Court so that this Court can play the recordings; and whether the recordings actually play using the applicable device, software, and password;
• the court reporter's explanation for why State's exhibit 27 is not filed through the TAMES portal;
• whether the recordings on the exhibit in their current format can be uploaded to TAMES;
• if not whether the State or appellant's counsel can produce a copy of the exhibit in a format or unencrypted version that can be uploaded to TAMES and that accurately duplicates with reasonable certainty the original recordings on the exhibit; and
• whether appellant and the State can prepare their briefs without the exhibit being loaded into TAMES.If the trial court finds that State's exhibit 27 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 exhibit with the recordings in an unencrypted format that can be uploaded to TAMES, the trial court shall order the attorney to make the recordings in the uploadable format available to the court reporter to upload to TAMES. The court reporter shall upload the recordings to TAMES within TEN DAYS after receiving the uploadable copy of the exhibit.
If the trial court finds that the recordings 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 recordings in a format that can be uploaded to TAMES, and that the recordings require special software and/or passwords to play, the trial court shall order the State's attorney to provide the court reporter with the appropriate software, passwords, and instructions for playing the recordings on the exhibit that the court reporter can file with this Court so that this Court can play the recordings on the exhibit.
If the trial court determines that all or part of the recordings on the exhibit cannot be played, the trial court shall make findings whether the unplayable or unviewable parts of the recordings are necessary to the appeal's resolution, whether the inability to play the recordings is due to appellant's fault, and whether the unplayable part of the recordings can be replaced by agreement of the parties or with copies determined by the trial court to accurately duplicate with reasonable certainty the original exhibits.
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 Amber Givens, Presiding Judge, 282nd Judicial District Court; Lisa V. Jackson, Official Court Reporter for the 282nd Judicial District Court; and counsel for all parties.
We ABATE this appeal to enable the trial court to comply with this order. This appeal will be reinstated when the trial court's findings are filed in this Court or at such other time as the Court deems appropriate.