                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-10-00057-CV


IN THE MATTER OF K.G.




                                      ------------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                         MEMORANDUM OPINION1
                                       ----------

      This is a juvenile case in which the State alleged that Appellant K.G., a

ten-year-old minor, engaged in one count of delinquent conduct. An adjudication

hearing was held before the trial court, and the trial court adjudged K.G.

delinquent. After a disposition hearing before the trial court, the trial court signed

an order of no disposition on February 17, 2010.



      1
       See Tex. R. App. P. 47.4.
      In his first issue, K.G. contends that he is entitled to a new trial under rule

of appellate procedure 34.6(f) because significant portions of the electronically

recorded proceedings are inaudible through no fault of his own. 2 See Tex. R.

App. P. 34.6(f). In an affidavit, the court reporter advised this court that the

proceedings in this case were recorded electronically, that the audiotape was

changed during the first witness’s testimony, and that the replacement tape—

spanning the rest of the first witness’s testimony and the remainder of the

proceedings—was “of such low volume that, although some sound could be

heard, words and even speakers were not distinguishable.”

      Rule 34.6(f) of the rules of appellate procedure states:

      Reporter’s Record Lost or Destroyed. An appellant is entitled to a
      new trial under the following circumstances:

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

             (2) if, without the appellant’s fault, a significant exhibit or a
             significant portion of the court reporter’s notes and records
             has been lost or destroyed or—if the proceedings were
             electronically recorded—a significant portion of the recording
             has been lost or destroyed or is inaudible;

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

      2
       In his second and third issues, K.G. argues that the evidence is legally
and factually insufficient to support the adjudication. In light of our disposition of
K.G.’s first issue, we do not reach his second or third issue. See Tex. R. App. P.
47.1. Appellant does not seek rendition for legal insufficiency and concedes that
this court cannot conduct a meaningful review of the sufficiency issues on the
record before us. The State agrees that K.G. does not seek any remedy in his
second and third issues that is not already achieved by sustaining his first issue.


                                      2
             (4) if the lost, destroyed or inaudible portion of the reporter’s
             record cannot be replaced by agreement of the parties, or the
             lost or destroyed exhibit cannot be replaced either by
             agreement of the parties or with a copy determined by the trial
             court to accurately duplicate with reasonable certainty the
             original exhibit.

Tex. R. App. P. 34.6(f). In his brief, K.G. has established each of rule 34.6’s

requirements. Indeed, the State concedes error concerning K.G.’s first issue and

agrees that K.G. is entitled to a new trial. We therefore sustain K.G.’s first issue,

and we reverse the trial court’s judgment and remand this case for a new trial.


                                                    PER CURIAM

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: December 9, 2010




                                     3
