Opinion
No. 08-12-00167-CR
10-16-2014
FABIAN DOUGLAS CASTANEDA, Appellant, v. THE STATE OF TEXAS, State.
Appeal from the 83rd District Court of Pecos County, Texas (TC# P-2377-83-CR) ORDER
This appeal is set for submission on October 30, 2014. The Court has reviewed the record and has determined that a portion of the reporter's record from the trial has not been included. More specifically, volume 5 of the reporter's record ends on page 94 with the dismissal of cause number P-2517-83-CR. The reporter's record does not include the remainder of trial on the merits conducted on May 3, 2012 and May 4, 2012 (guilt-innocence and punishment) related to cause number P-2377-83-CR. Appointed appellate counsel concluded that the appeal is frivolous and filed a motion to withdraw and brief pursuant to Anders v. California. It is unclear whether appointed counsel had the complete record available for review prior to determining that the appeal is frivolous.
Pursuant to TEX.R.APP.P. 34.6(f), an appellate court may award the appellant a new trial due to loss of the reporter's record if four circumstances exist: (1) if the appellant has timely requested a reporter's record; (2) if, without the appellant's fault, a significant portion of the reporter's record has been lost or destroyed; (3) if the lost or destroyed portion of the reporter's record is necessary to the appeal's resolution; and (4) if the lost or destroyed portion of the reporter's record cannot be replaced by agreement of the parties. The clerk's record reflects that counsel timely requested preparation of the reporter's record. The Court does not have the information necessary to determine whether the remaining circumstances exist in this case. Accordingly, we direct the trial court to conduct a hearing in this case to determine the following:
1. whether the reporter's notes of the missing portion of the reporter's record exist, or whether they have been lost or destroyed;
2. if the reporter's notes have been lost or destroyed, the court shall additionally determine whether the missing portion of the record is necessary to the appeal and whether the missing portion of the reporter's record can be replaced by agreement of the parties; and
3. whether appointed counsel had access to the complete reporter's record before he determined that the appeal is frivolous and filed the Anders brief.
The hearing should be held no later than thirty days from the date of this order. The trial court shall prepare written findings of fact and conclusions of law related to the above issues and file them with the trial court clerk within fifteen days after the hearing. The trial court clerk shall include the findings of fact and conclusions of law in a supplemental clerk's record and file same with this Court as soon as practicable. The court reporter shall prepare and file a reporter's record of the hearing, including any exhibits admitted during the hearing, and file same with this Court no later than fifteen days after the hearing.
IT IS SO ORDERED this 16th day of October, 2014.
PER CURIAM