Opinion
No. 10-06-00328-CR
Order issued and filed November 14, 2007. DO NOT PUBLISH.
Appeal from the 361st District Court, Brazos County, Texas, Trial Court No. 05-01239-CRF-361. Appeal abated.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
ABATEMENT ORDER
Elton Yarbrough was charged with sexual assault. He was found guilty and punishment was assessed at 18 years in prison. Yarbrough appealed. Yarbrough filed his notice of appeal with the trial court on October 3, 2006. The reporter's record was due November 28, 2006. See TEX. R. APP. P. 35.2. On December 18, 2006 the Clerk of this Court notified the official reporter of the 361st District Court that the reporter's record had not been filed. The Clerk requested the filing of the record within 30 days and if the reporter's record could not be filed within that time, to notify the Court immediately. We received no response from the reporter. On January 18, 2006 the Clerk of this Court notified the official reporter again that the reporter's record had not been filed, that the reporter had been notified on December 18, 2006, that the reporter's record was due within 30 days, and that the reporter did not respond to the notification. The Clerk requested the reporter to contact the Court within 10 days. The Clerk warned that if the reporter did not respond within 10 days from the date of the letter, the matter would be referred to the Court. See TEX. R. APP. P. 35.3(b) and 37.3(a). We received no response from the reporter. On February 22, 2007 and because multiple records by this particular reporter were overdue, the Clerk of this Court requested the assistance of the trial judge in getting numerous records, including the record in this appeal, filed. A list of the overdue records was included in body of the letter. The reporter responded that the record in this appeal would be forwarded to the Clerk "within the next two months." The record was never filed. On July 17, 2007 the Clerk of this Court requested the reporter to immediately inform the Court as to the date the overdue records, including the record in this appeal, would be filed. A spreadsheet of the overdue records was included with the letter. We received no response from the reporter. The reporter's record is now 11 months overdue. And this is not the only appeal of a criminal conviction which has come to a standstill because of this reporter. See Jimenez v. State, No. 10-07-00056-CR, 2007 Tex. App. LEXIS _____ (Tex.App.-Waco Nov. 14, 2007, order) (published); Montgomery v. State, No. 10-07-00080-CR (Tex.App.-Waco Nov. 14, 2007, order) (not designated for publication); Lopez v. State, No. 10-06-00262-CR (Tex.App.-Waco Nov. 14, 2007) (not designated for publication.). The location of the reporter was unknown to us for a period of time. See Hot Rod Hill Motor Park v. Triolo, No. 10-06-00092-CV (Tex.App.-Waco Oct. 10, 2007, order) (not designated for publication). Further, as a result of an abatement and hearing, the location of the reporter has recently become known to us. See id. Though we might prefer to reverse and remand this criminal proceeding due to this delay, the Court of Criminal Appeals requires more than just numerous unsuccessful efforts to obtain the reporter's record. Johnson v. State, 151 S.W.2d 193 (Tex.Crim.App. 2004). Specifically, before we can reverse the judgment of the trial court and remand this proceeding for a new trial, "the appellant must show (1) that a significant portion of the record was lost or destroyed, (2) through no fault of [his] own, (3) that the missing portion of the record is necessary to [his] appeal, and (4) the parties cannot agree on the record." Routier v. State, 112 S.W.3d 554, 570 (Tex.Crim.App. 2003). We also note that "a court reporter's notes and records, or portions thereof, can be considered `lost' only if the missing portions of the appellate record are irretrievable." Johnson v. State, 151 S.W.2d 193, 196 (Tex.Crim.App. 2004). We have determined that the trial court is in a better position to make the evidentiary record and determination of the four elements required by Routier before a new trial can be granted. Accordingly, we abate this proceeding to the trial court for a determination of these issues. See Kirtley v. State, 56 S.W.2d 48, 52 n. 3 (Tex.Crim.App. 2001) ("The Court of Appeals should begin with a determination as to which court should conduct the remaining Rule 34 analysis. If the appellate court finds that such analysis is best done by the trial court, it may remand the case accordingly."). The trial court shall: 1) conduct a hearing within 21 days from the date of this Order; and 2) prepare and tender to the trial court clerk written findings of fact and conclusions of law and a signed, written order consistent with this Order within 28 days from the date of this Order. The trial court shall also take whatever actions it deems appropriate, including holding the reporter in contempt until the record has been filed, to ensure that if it can be prepared, the record or any part of it is prepared and delivered to the trial court within 14 days of the date of the hearing. The trial court clerk shall prepare and file a supplemental clerk's record containing a copy of the trial court's findings of fact and conclusions of law and the trial court's written order with the Clerk of this Court within 35 days from the date of this Order. The current official reporter of the trial court shall prepare and file a supplemental reporter's record of the abatement hearing with the Clerk of this Court within 35 days from the date of this Order.