Opinion
No. 05-17-00271-CR
04-23-2018
CHRISTOPHER M. BURGESS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 439th Judicial District Court Rockwall County, Texas
Trial Court Cause No. 2-16-0489
ORDER
Christopher Burgess is appealing his conviction for continuous sexual abuse of a young child. The reporter's record was filed by Kayla Scott on July 3, 2017. The briefs have been filed, and the case was submitted on April 20, 2018. One of the issues raised on appeal is whether the trial court abused its discretion by admitting evidence of extraneous offenses, specifically evidence of child pornography found on appellant's computer.
A review of the reporter's record shows that, during trial, the State offered Exhibit 6, a CD containing fifteen still photographs of fifteen sexually explicit videos, as evidence of appellant's extraneous offenses. The exhibit was admitted into evidence. When the reporter's record was filed in this Court, a photocopy of the physical CD was included, but the contents of the CD were not uploaded or provided. Because a photocopy of a CD does not allow this Court to review the contents of the exhibit, we contacted Barbara Tokuz, the official court reporter of the 439th Judicial District Court in Rockwall County, to request a copy of the contents of the exhibit that was admitted into evidence during the trial. Tokuz responded to the Clerk of this Court by email stating she was unable to file the exhibit because this appeal "is a child porn case and reporters cannot send porn through the mail or through the portal." She further stated that at a "seminar" during the summer, "they said reporters can be arrested for being in possession of or submitting porn." Kayla Scott later contacted the Clerk and told her the original exhibit admitted at trial had been returned to the investigator at the district attorney's office. Tokuz then advised the Clerk that the Court would need to send "a court order to the investigator in the DA's office and let them mail it to [the Court]."
The Texas Rules of Appellate Procedure are promulgated by the Texas Supreme Court and the Texas Court of Criminal Appeals. Rule 13 sets out the duties of court reporters, including that the official court reporter must file all exhibits with the trial court clerk after a proceeding ends. See TEX. R. APP. P. 13.1(c). Rule 34 sets out the contents of the appellate record and instructs on what documents must be included. See TEX. R. APP. P. 34. When an indigent defendant has filed a timely notice of appeal and requested that the court reporter prepare the reporter's record, the official or deputy reporter is responsible for preparing, certifying, and timely filing the complete reporter's record. TEX. R. APP. P. 35.3. At the reporter's request, the trial court clerk must give all original exhibits to the reporter for preparing the reporter's record. TEX. R. APP. P. 34.6(g). Unless ordered to include the original exhibits in the record, the court reporter must return the original exhibits to the clerk after copying them for inclusion in the reporter's record. TEX. R. APP. P. 34.6(g). Nothing in the rules allows a court reporter to refuse to file an exhibit that was properly admitted at trial nor do the rules provide for a court reporter to return, sua sponte, an exhibit to a party while an appeal is pending.
As previously noted, the rules provide that the official court reporter Barbara Tokuz or deputy court reporter Kayla Scott is responsible for filing the complete reporter's record in this appeal. See TEX. R. APP. P. 35.3(b). The reporter's record before us is missing an exhibit which appears to have been released to the State, a party to this appeal. And this exhibit is the subject of one of appellant's issues on appeal. The exhibit was admitted at trial after which appellant was convicted of a first degree felony offense and sentenced to life in prison, where he presently remains incarcerated pending resolution of this appeal.
We therefore ORDER the trial court to hold a hearing and to make findings of fact regarding the following:
• Whether appellant timely requested a reporter's record, including State's Exhibit 6;
• Does State's Exhibit 6 exist and where is it currently located;
• Who released the exhibit;
• Whether State's Exhibit 6 is in its original condition or has been changed or altered in any way;
• Whether, without appellant's fault, the State's Exhibit 6 has been lost or destroyed;
• If the State's Exhibit 6 is lost or destroyed, whether the lost or destroyed exhibit can be replaced by agreement of the parties or be replaced by a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
We ORDER the trial court to transmit a record containing its written findings of fact, any orders, and any supporting documentation to this Court within TWENTY DAYS of the date of this order. If Exhibit 6 has not been lost or destroyed and can be located, and if the parties agree that it is the original exhibit or an accurate copy of the one offered and admitted at trial, we ORDER a supplemental reporter's record be filed containing State's Exhibit 6 within THIRTY DAYS of the date of this order. We caution Barbara Tokuz and Kayla Scott that the failure to file the supplemental reporter's record as ordered by this Court will result in the Court taking whatever action it deems appropriate to ensure that the court reporters perform their duties as required by law.
We DIRECT the Clerk to send copies of this order to the Honorable David Rakow, Presiding Judge, 439th Judicial District Court; Barbara L. Tokuz, official court reporter, 439th Judicial District Court; Kayla Scott, deputy court reporter, 439th Judicial District Court; and to counsel for all parties.
We ABATE this appeal to allow the trial court to comply with this order. The appeal shall be reinstated in twenty days or when we receive the supplemental record containing the trial court's findings of fact, whichever occurs first.
/s/ MOLLY FRANCIS
PRESIDING JUSTICE