Summary
determining that appellant was entitled to new trial under Rule 34.6(f) even though request for reporter's record not timely
Summary of this case from Villagomez v. MageeOpinion
No. 2-98-368-CV
Filed April 29, 1999
Appeal from the 323rd District Court of Tarrant County, Hon. Jean Hudson Boyd, Judge.
Charles P. Reynolds of Fort Worth, Texas for Appellant.
Tim Curry, Criminal District Attorney and Charles M. Mallin and Lisa Haines, Assistant District Attorneys of Fort Worth, Texas for Appellee.
Panel F: DAY, LIVINGSTON, and DAUPHINOT, JJ.
OPINION
Appellant G.M.S. appeals from his commitment to the custody of the Texas Youth Commission after being found to have engaged in delinquent conduct. Because the reporter's record is inaudible and cannot be prepared, we reverse and remand for a new trial.
On January 11, 1999, the court recorder informed this court that a significant portion of the recording from the trial is inaudible:
As you know, cases in the Masters' courts of the 323rd District Court are tape-recorded as allowed by the Texas Family Code unless a request is made for a court reporter. There was no such request made in this case and the case was audiotaped.
However, in listening to the tapes of the hearings in this case, I found that there were so many protracted sections of the hearings where the voices of the speakers (most notably the Respondent and the Respondent's mother) could not be heard loudly enough to be transcribed that it basically rendered transcription of the record impossible, and I'm unable to file a usable Reporter's Record in this case.
Accordingly, we sent a letter to the parties asking them to brief this court on the applicability of rule 34.6 (f) in this appeal. TEX. R. APP. P. 34.6 (f). After we received the responses, we abated the appeal to the trial court for a hearing on these issues. At the hearing, all parties stated that significant portions of the audiotapes were inaudible. Further, they could not agree on a complete reporter's record.
If a significant portion of the recording of the trial proceedings is inaudible, the appellant is entitled to a new trial if:
1. the appellant timely requested a reporter's record,
2. the inaudible recording occurred without the appellant's fault,
3. the inaudible portion is necessary to the appeal's resolution, and
4. the parties cannot agree on a complete reporter's record.
See id. It has been determined that the parties cannot agree on a record. Thus, we must examine the other requirements in turn.
Appellant stated in his response that he could not "defend himself on appeal without a record of his trial. The content of [appellants] and [appellant's mother's] testimony cannot be analyzed and utilized in the appeal of the delinquency finding." We agree. Without a usable record of the testimony of these two witnesses, most notably appellant himself, there could be no meaningful appellate