Opinion
No. 10-06-00137-CR.
February 7, 2007.
Appeal from the 361st District Court, Brazos County, Texas, Trial Court No. 05-02646-CRF-361, Steven Lee Smith, Judge.
Mary Jo Holloway, Chappell Hill, for appellant.
Bill R. Turner, Brazos County Dist. Atty., Bryan, for appellee.
Before Chief Justice Gray, Justice Vance, and Justice Reyna
(Chief Justice Gray dissenting)
Order issued and filed February 7, 2007
DISSENTING OPINION TO ORDER (AN ORDER WHICH THREATENS A COURT REPORTER WITH CONTEMPT WHILE AVOIDING OUR OWN DUTIES)
When a problem with the acquisition of a reporter's record became a problem in the past, a simple phone call to the trial court from me was all that was necessary to get the record prepared. And, it is the duty of this Court to work with the trial court to secure timely preparation of the reporter's record. TEX.R.APP. P. 35.3(c). But I see nothing in our records in this appeal that indicates there has been any attempt for direct communication with the trial court. I would make this contact directly on behalf of the Court, as I have in the past, but the other justices have since passed an internal rule that purports to specifically prohibit me from having direct communication with the trial court. Further, the majority will not compel the Clerk to communicate directly with the trial court. But rather than comply with our duties, the majority chooses to threaten the court reporter for violating her duty. The trial court, to whom the court reporter is most responsive, may be totally unaware of the problem. We should perform our task and work directly with the trial court to secure the record before threatening other actions.
Because the majority does not, I respectfully dissent to the majority's order.
This is not the first time a majority has issued a similar threat. They refused to publish their order or my dissenting note. Accordingly, I have been required to make my dissent in the form of an opinion and will attach a copy of the order to which this dissenting opinion relates as an appendix.
APPENDIX
To assist the reader in understanding my dissenting opinion, I have set out below the order of the Court:
ORDER
The trial court imposed Kevin Dwayne Revell's sentence on March 1, 2006. Revell filed a motion for new trial and then a notice of appeal. The district clerk filed the clerk's record on June 7. To date, no reporter's record has been filed.
Because of the motion for new trial, the reporter's record was originally due on June 29, 2006. See TEX.R.APP. P. 35.1(a). The Clerk of this Court notified the official court reporter, Susan Rainwater, that the record was overdue by letter dated August 22, 2006. This letter directed Rainwater to contact the Clerk regarding the matter within 30 days. Rainwater did not respond.
A second notice was sent to Rainwater on November 7 directing her to contact the Clerk regarding the matter within 10 days. Rainwater did not respond, so the Clerk contacted her by telephone on November 28. In this conversation, Rainwater advised that she was working on this record and it should be completed within two weeks. Aside from this conversation, Rainwater has generally failed to return the Clerk's telephone calls.
Accordingly, we ORDER court reporter Susan Rainwater to file the reporter's record for cause number 05-02646-CRF-361 in the 361st District Court of Brazos County, Texas with the Clerk of the Tenth Court of Appeals, McLennan County Courthouse, 501 Washington Avenue, Room 415, Waco, Texas 76701, on or before February 21, 2007. See McElwee v. Joham, 971 S.W.2d 198, 198 (Tex.App.-Waco 1998, order), disp. on merits, 15 S.W.3d 557 (Tex.App.-Waco 2000, no pet.).
FAILURE OF SUSAN RAINWATER TO FILE THE REPORTER'S RECORD ON OR BEFORE FEBRUARY 21, 2007 MAY RESULT IN THE ISSUANCE OF A SHOW CAUSE ORDER AND/OR JUDGMENT OF CONTEMPT.
The Court ORDERS that this Order be personally served on Susan Rainwater by overnight delivery via a commercial delivery service within the meaning of Rule of Appellate Procedure 9.5(b). See TEX.R.APP. P. 9.5(b).