Opinion issued June 9, 2015




                                    In The

                              Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                              NO. 01-13-01048-CR
                          ———————————
                   LUIS SANCHEZ ACOSTA, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 8
                           Harris County, Texas
                       Trial Court Case No. 1881137



                      MEMORANDUM OPINION

     A jury convicted appellant, Luis Sanchez Acosta, of the misdemeanor

offense of assault on a family member.1 The trial court assessed punishment at


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     See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2014).
confinement for 360 days and a fine of $4000.00, suspended the sentence and

$3000.00 of the fine, and placed appellant on community supervision for two

years. Appellant timely appealed from the trial court’s judgment.

      The trial court clerk filed the clerk’s record in this Court on January 9, 2014.

The reporter’s record was due on January 13, 2014. On January 29, 2014, we

notified the court reporter, Sondra Humphrey, that the reporter’s record was late

and ordered her to file the reporter’s record no later than February 28, 2014. See

TEX. R. APP. P. 37.3(a)(2). Humphrey responded by filing an information sheet

stating that appellant had requested preparation of the reporter’s record but had not

paid, or made arrangements to pay, for the reporter’s record. Accordingly, the

Clerk of this Court notified appellant that the Court might consider his appeal

without a reporter’s record unless he provided proof that he had made

arrangements to pay for the reporter’s record or an explanation that he was exempt

from paying for the reporter’s record. See TEX. R. APP. P. 37.3(c). Appellant

responded that he had timely filed an affidavit of indigency in the trial court and

that court had determined that he was indigent for purposes of employing counsel

and paying for the appellate record. Humphrey, however, did not file a reporter’s

record in this appeal.

      On April 15, 2014, we abated the appeal and remanded the case to the trial

court to determine why the reporter’s record had not been filed and set a date for

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filing the reporter’s record. The Honorable Sherman A. Ross, the former Presiding

Judge of the Harris County Criminal Courts at Law, was assigned to hear the

proceedings regarding the past due reporter’s record taken by Humphrey in this

case and eight other cases pending in this Court and the Court of Appeals for the

Fourteenth District of Texas. See TEX. GOV’T CODE ANN. § 74.056 (West 2013).

Judge Ross issued many orders and conducted numerous hearings in an effort to

obtain the reporter’s records in these cases. See TEX. R. APP. P. 35.3(c). Although

Judge Ross afforded Humphrey multiple opportunities to file the record, it became

apparent that she was unable to provide a complete record in this case. Judge Ross,

therefore, appointed a substitute court reporter, Brenna DeMoss, the official court

reporter for County Criminal Court at Law No. 11 in Harris County, to evaluate

whether a complete reporter’s record could be prepared, certified, and filed in this

case. Further, after finding that Humphrey had violated several of the court’s

orders, Judge Ross held her in contempt and, on August 15, 2014, assessed

punishment at confinement in the Harris County Jail for thirty days and a $500

fine.

        Finally, on March 3, 2015, the trial court signed findings of fact and

conclusions of law in this case, which were filed with this Court in a supplemental

clerk’s record on April 27, 2015. These findings include the trial court’s

“Supplemental Findings of Fact” stating that:

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4.    Ms. Humphrey provided this court with her computerized
      stenographic notes that were incomplete.
5.    Ms. Humphrey provided this court with an informal audio
      recording of the proceedings that was incomplete.
6.    At the request of the parties, the undersigned judge directed
      Brenna DeMoss, official court reporter for County Criminal
      Court at Law No. 11, of Harris County, Texas, to review the
      audio files, and stenographic notes submitted to the Court by
      Ms. Humphrey.
7.    Ms. DeMoss could not reconstruct a complete reporter’s record
      based upon the audio and stenographic notes submitted to the
      Court by Ms. Humphrey.
8.    Ms. Humphrey’s medical condition, personal, and professional
      problems during the latter part of 2013, and early 2014, . . .
      indicate she may not have been in a condition to transcribe the
      proceedings, or otherwise conduct herself in a professional
      manner. . . .
10.   The appellant timely filed a notice of appeal.
11.   This case did not involve a waiver of a court reporter, nor was it
      a mere formality or summary proceeding.
12.   The appellant bears no fault for Ms. Humphrey’s failure to
      complete and file the reporter’s record.
13.   The reporter’s record is necessary to the appeal’s resolution.
14.   The reporter’s record cannot be replaced by agreement of the
      parties to the facts contained in the record, if a complete and
      legible record exists. . . .
16.   Based upon Ms. Humphrey’s representations to this court
      regarding the status of the reporter’s record, and her failure to
      either file the completed record or provide the court with
      stenographic notes capable of being transcribed by another
      official court reporter using the same software system resulting
      in a complete record[,] this Court does not find Ms. Humphrey
      to be credible.
17.   The undersigned finds Ms. Humphrey failed to file the record
      because she had neither a complete stenographic record, nor a
      complete audio recording of the proceedings in the trial court;
      or she willfully refused and continues to refuse to fully and
      accurately transcribe her notes.
18.   This Court does not believe a complete record will ever be filed
      by Ms. Humphrey or another court reporter.
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Judge Ross then concluded:

      1.    Sondra Humphrey violated her oath to keep a correct, impartial
            record of (1) the evidence offered in the case; (2) the objections
            and exceptions made by the parties to the case; and (3) the
            rulings and remarks made by the court in determining the
            admissibility of testimony presented in the case. . . .
      2.    The appellant is entitled to a new trial.

      If, through no fault of the appellant, a reporter’s record is lost or destroyed,

and the portion of the record that is lost or destroyed is necessary to the appeal’s

resolution and cannot be replaced by agreement of the parties, the appellant is

entitled to a new trial. TEX. R. APP. P. 34.6(f); see Mendoza v. State, 439 S.W.3d

564, 566 (Tex. App.—Amarillo 2014, no pet.). However, if the missing portion of

a reporter’s record is not necessary to the appeal’s resolution—and the appellant is

therefore not harmed by the incomplete reporter’s record—the appellant is not

entitled to a new trial. See TEX. R. APP. P. 34.6(f)(3); Nava v. State, 415 S.W.3d

289, 306 (Tex. Crim. App. 2013); Routier v. State, 112 S.W.3d 554, 571–72 (Tex.

Crim. App. 2003); Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999).

      We agree with the trial court’s conclusion that appellant is entitled to a new

trial. See Castillo v. State, No. 01-13-00632-CR, 2015 WL 1778776, at *3 (Tex.

App.—Houston [1st Dist.] Apr. 16, 2015, no pet. h.). Although Judge Ross

provided Humphrey with numerous opportunities to provide a complete record

and, when Humphrey proved unable to do so, appointed a substitute court reporter

                                          5
to transcribe the record from Humphrey’s stenographic notes and audio recordings,

no record has been prepared or certified, and the substitute reporter testified that

she was unable to prepare, certify, and file a reporter’s record from Humphrey’s

notes and audio recordings. See Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim.

App. 2004) (stating court has authority to appoint substitute court reporter to

prepare and certify record from original reporter’s notes). The record, therefore,

supports the trial court’s findings that Humphrey’s stenographic notes and audio

recording were incomplete and the missing portion of the record—the entire

reporter’s record—is irretrievably lost or destroyed. See TEX. R. APP. P. 34.6(f)(3);

Mendoza, 439 S.W.3d at 565–66; see also Johnson, 151 S.W.3d at 196 (holding

court reporter’s notes and records, or portions thereof, can only be considered lost

if missing portions of record are irretrievable and may not be considered lost based

solely on reporter’s repeated failure to file record).

      The record further supports the trial court’s finding that the missing

reporter’s record is necessary to appellant’s appeal. There is no reporter’s record

from any portion of the trial in this case. And, in the absence of a reporter’s record,

we must presume the regularity of the documents in the trial court and are bound

by the recitations in the records of the trial court, including the judgment. See

Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). Therefore,

without any reporter’s record, and “[g]iven the circumstances of this case, it would

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strain credulity to conclude that the destroyed reporter’s record was unnecessary to

the resolution of the appeal.” Villagomez Invs., L.L.C. v. Magee, 294 S.W.3d 687,

690 (Tex. App.—Houston [1st Dist.] 2009, no pet.); see also TEX. R. APP. P.

34.6(c)(5) (requiring record include all evidence admitted at trial for criminal

appellant to raise argument as to sufficiency of evidence); id. 38.1(g), (i) (requiring

appellant’s brief to contain statement of facts “supported by record references” and

argument “with appropriate citations . . . to the record”); Bryant v. State, No. 14-

13-00922-CR, 2015 WL 1622163, at *3 (Tex. App.—Houston [14th Dist.] Apr. 7,

2015, no pet. h.) (“Appellant’s ability to present meaningful issues on appeal after

a jury trial is severely limited in the absence of a reporter’s record.”); cf. Issac, 989

S.W.2d at 757 (declining to adopt automatic rule of reversal in cases with lost or

destroyed reporter’s record, but recognizing that “the lack of a record may in some

cases deprive an appellate court of the ability to determine whether the absent

portions are necessary to the appeal’s resolution”).

      Finally, the court reporter represented to this Court, in her February 25, 2014

information sheet, that appellant requested preparation of the reporter’s record be

prepared, and the clerk’s record includes appellant’s designation of reporter’s

record. See TEX. R. APP. P. 34.6(f)(1). The record supports the trial court’s findings

that appellant “bears no fault” for the reporter’s inability to produce the reporter’s




                                           7
record and the reporter’s record cannot be replaced by agreement of the parties. See

id. 34.6(f)(2), (4).

       Accordingly, we reinstate this appeal, reverse the trial court’s judgment, and

remand the cause for a new trial. See TEX. R. APP. P. 34.6(f); Castillo, 2015 WL

1778776, at *3; Mendoza, 439 S.W.3d at 566. Any pending motions are dismissed

as moot.

                                  PER CURIAM


Panel consists of Justices Keyes, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).




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