Opinion
No. 05-17-00034-CR
02-09-2018
JOSEPH TODD SMITH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-80590-2016
ORDER
On October 20, 2017, the Court ordered court reporter Destiny Moses to provide appellate counsel with a paper copy of the redacted reporter's record for transmission to appellant to assist appellant in filing a pro se response to appellate counsel's Anders brief. On December 22, 2017, appellant filed a pro se motion to compel compliance with the Court's October 20, 2017 order. Appellant asserted that the record he had received was missing the transcript from an August 29, 2016 hearing regarding his competency to stand trial.
The trial court's docket sheet indicates that a competency hearing was held before the Honorable Angela Tucker on August 29, 2016 at which time testimony was presented. The docket sheet does not reveal whether the hearing was recorded and, if so, the name of the court reporter who recorded it. During trial, the state of appellant's mental health was raised during testimony regarding appellant's decision to testify and the competency hearing was referenced during the State's cross-examination of appellant. Trial counsel addressed appellant's competency in her Anders brief. Trial counsel represented that she had requested a reporter's record of the competency hearing from the court reporter but did not receive a copy of the record from the competency hearing.
By order entered on January 5, 2018, the Court ordered Official Court Reporter Antoinette Varela to provide appellate counsel with a paper copy of the transcript of the August 29, 2016 competency hearing and to file it as a supplemental reporter's record with the Court within fifteen days. In the same order, appellate counsel was ordered to transmit a copy of the supplemental reporter's record to appellant within thirty days and to file verification of transmission to appellant with the Court. On February 5, 2018, the Court received a letter from appellate counsel reporting that she was unable to comply with the Court's January 5, 2018 order because Ms. Varela had not sent her a copy of the record from the competency hearing.
Therefore, we ORDER the trial court to conduct a hearing to determine the status of the reporter's record in this case. The trial court shall make findings of fact regarding whether the competency hearing held on August 29, 2016 was recorded and, if so, whether a supplemental reporter's record can be prepared and filed to reflect the competency proceedings. If the trial court determines that the appellate record may be supplemented with a record of the competency hearing, the trial court's findings shall include the name of the court reporter responsible for transcription of the record, the reason why the competency hearings have not been filed as part of the appellate record, and the date by which the record can be prepared and filed. If the competency hearing was not recorded by a court reporter, the trial court's findings shall reflect that no reporter's record was taken.
If the reporter's record from the competency hearing has been lost, destroyed, or is inaudible, the trial court shall make findings of fact regarding (1) whether appellant timely requested a reporter's record; (2) if without appellant's fault, a significant portion of the court reporter's notes, records, and recordings has been lost, destroyed, or is inaudible; (3) if the lost, destroyed, or inaudible portion of the reporter's record is necessary to the appeal's resolution; and (4) whether the lost, destroyed, or inaudible portion of the reporter's record can be replaced by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original record.
We ORDER the trial court to transmit to this Court, within THIRTY DAYS of the date of this order, a record containing its written findings of fact and any supporting documentation.
We DIRECT the Clerk to send copies of this order, by electronic transmission, to the Honorable Raymond G. Wheless, Presiding Judge, 366th Judicial District Court; Official Court Reporter Antoinette Varela; and counsel for all parties.
We DIRECT the Clerk to send a copy of this order, by first-class mail, to Joseph Todd Smith, TDCJ No. 02107016, Clements Unit, 9601 Spur 591; Amarillo, Texas, 79107-9606.
We ABATE the appeal to allow the trial court to comply with this order. The appeal shall be reinstated thirty days from the date of this order or when the findings are received. After reinstatement, the Court will establish a new due date for the pro se response.
/s/ LANA MYERS
JUSTICE