Opinion
05-22-00839-CR
05-19-2023
MARCUS KEITH SCOTT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F22-00187-X
ORDER
ERIN A. NOWELL JUSTICE
The reporter's record is overdue. The record was originally due December 16, 2022. On January 3, 2023, Norma Rico, Deputy Court Reporter for Criminal District Court No. 6, requested an extension of thirty days to complete the reporter's record. On January 4, 2023, we granted the motion and ordered the reporter's record be filed by February 2, 2023. On February 21, 2023, we ordered the record filed by March 20, 2023. On March 27, Ms. Rico requested an extension of time to file the reporter's record stating, "I've been behind due [to] personal matters and illness, but almost done with the record, but it will be submitted no later than Thursday, March 30, 2023." We granted the request and ordered the reporter's record filed by April 7, 2023. We cautioned Ms. Rico that if the reporter's record was not filed by April 7, 2023, the Court may order her not to sit as a court reporter until the record is filed. On April 18, 2023, Ms. Rico requested an extension of time to file the reporter's record, stating, "The record is almost complete and will be submitted by end of day Friday, April 21, 2023 without fail. I've taken it upon myself to sit out to ensure the record is completed and submitted." On May 4, 2023, when the reporter's record was still not filed and Ms. Rico had not communicated further with this Court, we ordered that Ms. Rico not sit as a court reporter until she has filed the reporter's record. As of the date of this order, the reporter's record has not been filed, and Ms. Rico has not communicated with this Court about this opinion since April 18, 2023.
The reporter's record is now five months overdue. "The trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed." Tex.R.App.P. 35.3(c). Accordingly, we ORDER the Honorable Nancy Mulder, Presiding Judge, Criminal District Court No. 6, Dallas County, to hold a hearing and make findings of fact regarding whether appellant has been deprived of the reporter's record because of ineffective counsel, indigence, because a portion of the record has been lost or destroyed, or for any other reason.
• The trial court shall first determine whether appellant desires to prosecute the appeal. If the trial court determines that appellant does not desire to prosecute the appeal, it shall make a finding to that effect.
• If the trial court determines that appellant desires to prosecute the appeal, it shall next determine whether appellant is indigent and entitled to proceed without payment of costs for the reporter's record. If appellant is entitled to proceed without payment of costs, the trial court shall make a finding to that effect. Moreover, if the appellant is indigent, the trial court is ORDERED to take such measures as may be necessary to assure effective representation, which may include appointment of new counsel. If the trial court finds appellant is not indigent, it shall determine whether retained counsel has abandoned the appeal.
• The trial court shall next determine whether a portion of the reporter's record has been lost or destroyed. If the trial court determines that a portion of the reporter's record has been lost or destroyed, the trial court shall determine whether the lost or destroyed portion can be reconstructed and replaced by agreement of the parties. If the parties cannot agree, the trial court is directed to determine what constitutes an accurate copy of the lost or
destroyed portion of the reporter's record and order that the reporter's record be filed.
• In the event that the trial court determines that a portion of the reporter's record is lost or destroyed and cannot be reconstructed by agreement of the parties or by the trial court determining what constitutes an accurate copy of the record, the trial court shall make findings of fact regarding (1) whether appellant timely requested a reporter's record; (2) if without appellant's fault, a significant portion of the reporter's record has been lost or destroyed; and (3) whether the lost or destroyed portion of the reporter's record is necessary to the appeal's resolution.
• Finally, the trial court shall determine: (1) the name and address of each court reporter who recorded the proceedings in this cause; (2) the court reporter's explanation for the delay in filing the reporter's record; and (3) the earliest date by which the reporter's record can be filed.
We ORDER the trial court to transmit a record, containing the written findings of fact, any supporting documentation, and any orders, to this Court within THIRTY DAYS of the date of this order.
We ORDER the court reporter to file a 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 Nancy Mulder, Presiding Judge, Criminal District Court No. 6, Dallas County; Norma Rico, Court Reporter; Marissa Garza, Court Reporter; and counsel for all parties.
We ABATE the appeal to allow the trial court to comply with this order. The appeal shall be reinstated when the findings are received or at such other time as the Court deems appropriate.