Opinion
NO. 12-19-00265-CR
06-05-2020
ANGEL ROSE LEE, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 159TH JUDICIAL DISTRICT COURT ANGELINA COUNTY , TEXAS ORDER
Appellant, Angel Rose Lee, was arrested and charged by indictment with four counts of sexual assault of a child. Appellant pleaded "guilty," and the matter proceeded to a jury trial on punishment. Following evidence and argument, the jury sentenced Appellant to ten years confinement on each count, to be served concurrently. This appeal followed. In four issues, Appellant contends the trial court abused its discretion in admitting certain evidence.
Specifically, issue three urges the trial court erred in admitting and publishing the entirety of an interview with the child victim for the jury. The child victim was interviewed twice by forensic interviewer Annie Henderson. The first interview occurred on January 12, 2018, and the second interview occurred on June 12, 2019. The January 12 interview was admitted into evidence as Exhibit 37, and the June 12 interview was offered as Exhibit 40. Exhibit 40 was eventually withdrawn and not admitted into evidence. Appellant contends Exhibit 37 was admitted in error and such error was harmful. The copy of Exhibit 37 provided to this Court contains the recording of the June 12 interview instead of the January 12 interview. We have contacted the court reporter in an attempt to obtain the correct recording and exhibit; however, such efforts have been unsuccessful.
The Texas Rules of Appellate Procedure provide that, when the reporter's record is lost or destroyed, an appellant is entitled to a new trial under the following circumstances:
(1) if the appellant has timely requested a reporter's record;TEX. R. APP. P. 34.6(f). When exhibits are missing from the reporter's record, the exhibits may be replaced by agreement or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit. See TEX. R. APP. P. 34.6(f)(4).
(2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or—if the proceedings were electronically recorded—a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter's record, or the lost or destroyed exhibit, is necessary to the appeal's resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter's record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
Accordingly,
It is ORDERED that the Honorable Paul E. White shall, in accordance with Texas Rule of Appellate Procedure 34.6(f)(2), conduct a hearing, on or before June 15, 2020, and make written findings of fact as to whether the recording of the January 12, 2018 interview has been lost or destroyed. If the trial court finds the exhibit to be lost or destroyed, the trial court shall determine whether (1) without Appellant's fault, a significant exhibit has been lost or destroyed and, if so, whether the missing significant exhibit is necessary to the appeal's resolution, (2) the missing exhibit can be replaced by stipulation or agreement of the parties, and (3) Appellant is entitled to a new trial under Rule 34.6(f).
It is FURTHER ORDERED that a supplemental clerk's record including the trial court's written findings, along with any supporting documentation and orders, be certified to this Court on or before June 22, 2020.
It is FURTHER ORDERED that the court reporter file a reporter's record of the hearing on or before June 22, 2020.
KATRINA MCCLENNY, CLERK
12th Court of Appeals
By: /s/Katrina McClenny