Opinion
11-23-00224-CR
01-25-2024
JOHNNY EDWARDS, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 259th District Court Jones County, Texas Trial Court Cause No. 011064
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
PER CURIAM
This appeal has become stalled due to issues regarding the preparation of the reporter's record. We abate this appeal for sixty days.
The court reporter, Michelle Lopez, has filed two requests for extension of time to file the reporter's record. In her first request, Lopez stated that Appellant had requested the reporter's record, but that "prepayment" had not been made. In the request, she stated that she sent an invoice explaining to Appellant's counsel "that payment is due first before preparation begins." We granted her request and extended her deadline to file the record.
In her second request, Lopez stated that she had been experiencing medical issues, was recovering, and that she did not anticipate returning to Abilene until February. We granted her second request and extended her deadline to file the record. In our letter granting her request, we notified Appellant that the court reporter had informed us that Appellant had not paid for the reporter's record in this appeal. We further notified Appellant that, unless payment was remitted, the designation of record was filed with the court reporter, and proof of payment and filing was received in this court, the appeal may be submitted on the clerk's record alone. See Tex. R. App. P. 37.3(c).
Appellant's counsel, an attorney with the Office of State Counsel for Offenders, filed a response to our letter. In the response, Appellant discusses the fee dispute and states that he told Lopez that "the Texas Department of Criminal Justice requires that an invoice (bill) be submitted for payment after the good has been tendered or the service has been performed." He also notes that Lopez has not required prepayment from the Office of State Counsel for Offenders and attaches previous appeals where she has prepared the reporter's record in anticipation of payment. He states that he has attempted to resolve the dispute with her, but that she "has not responded to his communications-perhaps due to her illness." In the response, Appellant's counsel attaches an affidavit executed by the Honorable Judge Brooks H. Hagler, the judge that presided over Appellant's trial, that confirms that Lopez "fell grievously ill and has been away from work on medical leave." In the affidavit, Judge Hagler states that he does not anticipate that Lopez will return to work before March 1, and, assuming additional time will be needed, urges us to extend her deadline to file the record to April 1.
Rule 35.3(b) of the Texas Rules of Appellate Procedure requires the official or deputy reporter to prepare, certify, and timely file the reporters record if (1) a notice of appeal has been filed, (2) the appellant has requested preparation of the reporter's record, and "(3) the party responsible for paying for the preparation of the reporter's record has paid the reporter's fee, or has made satisfactory arrangements with the reporter to pay the fee, or is entitled to appeal without paying the fee." Tex.R.App.P. 35.3(b). The trial court and the appellate court are jointly responsible for ensuring that the reporter's record is timely filed. Id. 35.3(c). In this regard, we may enter any order necessary to ensure the timely filing of the reporter's record. Id.
In order to ensure that the record is timely filed, we abate the appeal for sixty days for the trial court to resolve the fee dispute between the court reporter and Appellant's counsel so that this appeal may proceed. This sixty-day period is also intended to allow Lopez sufficient time to prepare the record considering her medical leave and recovery. The trial court, the attorneys, and Lopez are directed to inform this court in writing regarding the status of the reporter's record prior to the end of the sixty-day period. In addition, the district clerk is directed to forward to this court a supplemental clerk's record containing orders and findings, if any, that are entered by the trial court regarding the payment and preparation of the reporter's record.
The appeal is abated until March 25, 2024, at which time the appeal will be reinstated. The reporter's record is now due for filing on or before March 25, 2024.