Order entered August 28, 2014




                                              In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                       No. 05-13-01521-CR

                               LATOYA ROBINSON, Appellant

                                                 V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the County Auxiliary Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. TR-13-03619

                                             ORDER
       Latoya Robinson was convicted of contributing to the truancy of her child. After the

clerk’s record and Robinson’s brief had been filed, the State filed a motion to abate this appeal.

The State asserted the proceedings were recorded on three cassette tapes, and the trial court

should certify the accuracy of the tapes. On January 14, 2014, we granted the State’s motion,

abated the appeal, and ordered the trial court to conduct a hearing to determine: (1) whether there

were proceedings audio recorded; and (2) if so, could the accuracy of the recordings be verified.

       The trial court held a hearing on February 6, 2014 to allow the parties to listen to the

recordings of the trial proceedings. Robinson was not present at the hearing and did not contact

the trial court to explain her absence. However, the trial court specifically noted the weather

conditions created transportation difficulties for at least two of the persons notified to be present
at the hearing. After listening to both sides of all three cassette tapes from the trial proceedings,

the trial court found (1) the trial proceedings were audio recorded, and (2) the accuracy of the

audio recordings cannot be verified. The trial court recommended that Robinson “be allowed a

new trial.”

        On February 21, 2014, we reinstated the appeal, adopted the trial court’s findings, and

deferred the trial court’s recommendation that Robinson be granted a new trial to the submission

panel. We also ordered Robinson to file an amended brief addressing the issue of the trial

court’s findings regarding the audio recordings of the proceedings. Robinson filed an amended

brief arguing the “facts of the case or transcripts are not certifiable by court records (transcripts),

therefore, the rulings and violations of The Texas Rules of Evidence were not perused in this

case.” Robinson specifically asserted she was not timely provided documents and evidence by

the State and “the evidence and transcripts errors were precursors for [her] not being able to

present a meritorious defense in [her] truancy and appeal cases.”

        The State filed a response brief contending Robinson’s issues in her original and

amended briefs were inadequately briefed and that Robinson had failed to present this Court with

a sufficient reporter’s record to assess the substantive merits of her issues. The State specifically

argued Robinson failed to timely request a reporter’s record on appeal, an argument we do not

address at this time.

        Rule of appellate procedure 34.6(f) provides, as relevant in this case, that an appellant is

entitled to a new trial if:

        (1) the appellant timely requested a reporter’s record;

        (2) without the appellant’s fault, a significant portion of the electronic recording
        of the proceedings has been lost or destroyed or is inaudible;




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       (3) the lost, destroyed, or inaudible portion of the reporter’s record is necessary to
       the appeal’s resolution; and

       (4) the lost, destroyed, or inaudible portion of the reporter’s record cannot be
       replaced by agreement of the parties.

TEX. R. APP. P. 34.6(f). Based on the trial court’s findings, the audio recordings of the trial

proceedings cannot be certified for accuracy. Accordingly, we ORDER the parties to determine

whether they can agree to factual stipulations as to what occurred during the portions of the trial

proceedings relevant to Robinson’s issues on appeal. The parties shall file either a written

stipulation of agreed facts or a notice informing the Court that an agreement cannot be reached

by October 3, 2014.



                                                     /s/     ROBERT M. FILLMORE
                                                             PRESIDING JUSTICE




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