Opinion
No. 08-12-00167-CR
05-08-2015
FABIAN DOUGLAS CASTANEDA, Appellant, v. THE STATE OF TEXAS, State.
Appeal from the 83 District Court of Pecos County, Texas (TC# P-2377-83-CR) ORDER
After substantial delay, a complete reporter's record from the trial conducted in May of 2012 was filed. Appellant has filed a motion asking the Court to reconsider whether a complete reporter's record has been filed because he believes the record of a pre-trial hearing held in June of 2000 has not been filed. He also asks that we suspend the appellate timetable until this determination is made. The State, although given an opportunity, has not filed any response to the motion.
The record reflects that Appellant was indicted in 1999 for the offense of murder alleged to have been committed on or about March 1, 1999. According to the trial court's written findings of fact and conclusions of law entered on June 14, 2000, the court conducted a Jackson v. Denno hearing on June 13, 2000 on Appellant's motion to suppress his statement. The court's findings also recite that the trial court heard the testimony of Pecos County Sheriff Bruce Wilson and Deputy Sheriff Larry Jackson at the hearing. Appellant failed to appear for trial of the case on July 10, 2000 and the trial court entered a judgment nisi forfeiting Appellant's bond. Appellant remained at large for more than ten years and he was not taken into custody until August 9, 2010. The case was tried to a jury in May of 2012. The jury convicted Appellant of murder and assessed his punishment at imprisonment for a term of 80 years.
The reporter's record of the trial on the merits has been filed, but Appellant asserts in his motion that the record of the Jackson v. Denno/motion to suppress hearing conducted on June 13, 2000 has not been made part of the appellate record. Appellant's attorney, after considerable investigation, has located the court reporter who worked for the 83rd District Court in 2000 but it is unclear whether the reporter's notes for June 13, 2000 hearing still exist.
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.
We concluded in a prior order that Appellant's written request, filed on May 22, 2012, for the court reporter to prepare the reporter's record was timely, and therefore, any potential loss of the record was not Appellant's fault. Those conclusions were correct with respect to the transcription of any proceedings which occurred after Appellant's arrest in August of 2010, but the same cannot be said for the record of the June 13, 2000 pre-trial hearing on Appellant's motion to suppress his statement.
Section 52.046 of the Texas Government Code sets forth an official court reporter's powers and duties. TEX.GOV'T CODE ANN. §52.046 (West 2013). A court reporter is required to preserve his or her notes for future reference for three years from the date on which they were taken. TEX.GOV'T CODE ANN. §52.046(a)(4). "By negative implication, the statute authorizes reporters to cull stale notes from their records after three years when no party has requested otherwise." Piotrowski v. Minns, 873 S.W.3d 368, 371 (Tex. 1993). Consequently, if a party fails to request the court reporter to prepare a reporter's record within three years or fails to ask the court reporter to preserve the notes beyond three years, then the party is not free from fault if the notes are destroyed. Id.; see Weeks v. State, 521 S.W.2d 858, 862 (Tex.Crim.App. 1975); Branch v. State, No. 03-07-00118-CR, 2008 WL 2066047 (Tex.App.--Austin 2008, pet. ref'd); Wynne v. State, 831 S.W.2d 513, 519-21 (Tex.App.--Amarillo 1992, pet. ref'd); Delosantos v. State, 673 S.W.2d 614, 635 (Tex.App.--Waco 1984, no pet.). The written request Appellant made on May 22, 2012 for the court reporter to prepare the transcription of the hearing conducted on June 13, 2000 was untimely. Appellant does not state in his motion, and the record does not reflect, that Appellant asked the court reporter to prepare a reporter's record within three years of the June 13, 2000 hearing asked the court reporter to preserve the notes beyond three years.
Appellant's motion to reopen the inquiry into whether a complete reporter's record has been filed is granted. We therefore abate the appeal and direct the trial court to conduct a hearing in this case to determine the following:
1. the identity of the court reporter;
2. whether the court reporter in fact attended the June 13, 2000 hearing;
3. whether Appellant asked the court reporter to prepare the transcript of the June 13, 2000 hearing within three years after the hearing date; and if so, on what date was that request made;
4. whether Appellant asked the court reporter to preserve the notes of the June 13, 2000 hearing for more than three years; and if so, on what date was that request made;
5. whether the reporter's notes of the June 13, 2000 hearing exist, or whether they have been lost or destroyed; and
6. 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.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 specified 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.
Further, the Appellant's motion for extension of time to file the brief will remain pending and will be ruled on after the appeal is reinstated.
IT IS SO ORDERED this 8 day of May, 2015.
PER CURIAM Before McClure, C.J., Rodriguez and Hughes, JJ.