                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-16-00247-CR

SANTOS VICTOR RUIZ, JR.,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 15-00539-CRF-361


                                      ORDER


      In the instant case, appellant, Santos Victor Ruiz Jr., was convicted of continuous

sexual abuse of a young child. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2016). Ruiz

filed his notice of appeal on August 1, 2016. Subsequently, on March 22, 2017, Ruiz filed

a motion for extension of time to file his appellant’s brief, asserting that the briefing

schedule needed to be reset due to an incomplete Reporter’s Record. In particular, Ruiz

complained that the Reporter’s Record did not contain transcripts from hearings
conducted on June 30, 2016 and July 7, 2016. Accordingly, Ruiz argued that he cannot

complete his appellant’s brief until he has a copy of the complete Reporter’s Record. We

granted Ruiz’s request to reset the briefing schedule and ordered him to file his

appellant’s brief within thirty days after the filing of a Supplemental Reporter’s Record

containing the transcripts from the June 30, 2016 and July 7, 2016 pre-trial hearings.

        Thereafter, on May 3, 2017, we received a letter from Court Reporter Wendy L.

Kirby about this matter. In her letter, Ms. Kirby expressed difficulty in preparing,

certifying, and filing the Reporter’s Record pertaining to the June 30, 2016 hearing held

before Magistrate Glynis Gore, a judge who has since resigned her post due to medical

issues. According to Ms. Kirby, an electronic recording, rather than a stenographic

recording, was made of the hearing. See TEX. R. APP. P. 34.6(a)(2). The magistrate court

informed Ms. Kirby “that they are not responsible for transcribing those proceedings and

attached the electronic recording file to their email response.” Ms. Kirby responded that

she is “unable to transcribe and certify the proceedings” because she was not present for

the June 30, 2016 hearing. Ms. Kirby has also indicated that the transcript for the July

7, 2016 hearing is prepared and ready to be filed. By a separate order, we order Ms.

Kirby to file this record with this Court within seven days.

        On May 16, 2017, we requested responses from the State and Ruiz “detailing

whether and how the Court may obtain an official Reporter’s Record, within the confines

of the Texas Rules of Appellate Procedure, in this appeal and what must occur in this


Ruiz v. State                                                                        Page 2
appeal if a Reporter’s Record of the June 30, 2016 hearing cannot be prepared and filed.”

Both Ruiz and the State responded to our May 16, 2017 letter order.

        In his response, Ruiz argued that he is entitled to a new trial under Texas Rule of

Appellate Procedure 34.6(f) because the unavailability of the complete Reporter’s Record

was not his fault, and because indigent criminal defendants are entitled to a free and

complete trial record in their appeal. See id. at R. 34.6(f); see also Griffin v. Illinois, 351 U.S.

12, 19-20, 76 S. Ct. 585, 590-91, 100 L. Ed. 891 (1956). The State responded that Ruiz did

not request a court reporter or object to the reporter’s failure to record the proceedings;

therefore, any right to the record of the June 30, 2016 hearing was forfeited. As such, the

State contended that Ruiz’s request for a new trial should be denied. The State also

asserted that the record from the June 30, 2016 hearing is not lost.

        Absent a specific request by a party, the court has no duty to provide an official

court reporter for the proceedings. See TEX. GOV’T CODE ANN. § 52.046(a) (West 2013).

However, in his response, Ruiz highlights Texas Rule of Appellate Procedure 13.1, which

provides, in relevant part, that “[t]he official court reporter or court recorder must: (a)

unless excused by agreement of the parties, attend court sessions and make a full record

of the proceedings.” TEX. R. APP. P. 13.1. Essentially, Ruiz suggests that the duties

expressed in Texas Rule of Appellate Procedure 13.1 trump section 52.046(a) of the

Government Code, thus creating a mandatory duty to create a full record of the

proceedings unless affirmatively waived.


Ruiz v. State                                                                                Page 3
        In a similar circumstance, the Fourteenth Court of Appeals has stated the

following regarding an argument that Rule 13 trumps section 52.046(a):

        The Texas Court of Criminal Appeals has held otherwise. See Davis v. State,
        345 S.W.3d 71, 77 (Tex. Crim. App. 2011) (noting that the defendant did not
        request a court reporter under 52.046(a) and, regardless, “even if Rule 13.1
        does impose a preliminary burden on the trial court to ensure the presence
        of a court reporter at all proceedings, our case law also imposes an
        additional, independent burden on the appealing party to make a record
        demonstrating that error occurred in the trial court. This includes a burden
        to object when the official court reporter is not present, as he is required to
        be under Rule 13.1, in order to preserve any error that may occur for
        appeal.” (emphasis in original)); Valle v. State, 109 S.W.3d 500, 508-09 (Tex.
        Crim. App. 2003) (holding that even under Rule 13.1 it was incumbent upon
        the defendant to object if bench conferences were not recorded in order to
        preserve error for appeal). Therefore, because appellant did not request a
        court reporter or object to the reporter’s failure to record the proceedings,
        any right to a record of the punishment hearing was forfeited.

Satterfield v. State, 367 S.W.3d 868, 871 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).

        The Amarillo Court of Appeals has also noted the following regarding the absence

of a hearing transcript:

        Second, we agree with the State that error preservation requirements are
        fatal to appellant’s contention on direct appeal. Appellant’s contention
        runs afoul of error preservation requirements on two levels. First, on a
        procedural level, if appellant is correct that the court reporter failed to
        record challenges for cause or other events leading to the dismissal of a
        member of the venire, and if appellant desired them to be recorded, it was
        for him to raise a complaint with the trial court. See Valle v. State, 109 S.W.3d
        500, 508-09 (Tex. Crim. App. 2003) (holding party must object in trial court
        to preserve appellate complaint about failure to record bench conferences);
        cf. Davis v. State, 345 S.W.3d 71, 77 n.22 (Tex. Crim. App. 2011) (quoting
        GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE
        AND PROCEDURE § 43.302 (2d ed. 2001), at 576 (“a party should not be
        permitted to ignore at the time a court reporter’s dereliction of duty and
        later rely on that dereliction to challenge a conviction”)). The appellate
Ruiz v. State                                                                               Page 4
        record contains no objection presented to the trial court complaining of any
        matter related to the court reporter or the taking of the record.

Ham v. State, 355 S.W.3d 819, 822-23 (Tex. App.—Amarillo 2011, pet. ref’d); see Newman v.

State, 331 S.W.3d 447, 450 (Tex. Crim. App. 2011) (“The record appellant presented,

however, contains no reporter’s record of any hearing that may have occurred on June

26, 2008. This record also does not show whether appellant objected in the event that the

court reporter was not present to transcribe the June 26, 2008 hearing. . . . We decide that

appellant has failed to present a record demonstrating that the trial court’s decision

should be overturned. With appellant having had a hearing, having lost in the trial court

on his speedy-trial claim, and then having presented no record at all of a June 26, 2008

hearing on this claim, appellant should also have lost on direct appeal.” (internal citations

omitted)).

        In addition to the foregoing, we note that section 54.309 of the Government Code

provides that: “At the request of a party in a felony case, the court shall provide a court

reporter to record the proceedings before the magistrate.” TEX. GOV’T CODE ANN. § 54.309

(West 2013). Therefore, like before, the failure to request a court reporter/recorder or

object to a reporter’s failure to record a hearing before a magistrate forfeits any right to a

record of that hearing.

        Here, Ruiz states that he “timely requested a reporter’s record”; however, other

than his request for the reporter’s record on appeal, there is no indication that he

requested that a court reporter transcribe the June 30, 2016 hearing at the time the hearing
Ruiz v. State                                                                           Page 5
was conducted.1 The record also does not show that Ruiz objected to the purported

failure of the trial court to provide a court reporter to transcribe the June 30, 2016 hearing

at the time of the hearing. Therefore, given the above, we decline to order a new trial, as

requested by Ruiz in his response filed in this Court on May 30, 2017. Moreover, we order

Ruiz to file his appellant’s brief within thirty days of the filing of the July 7, 2016 hearing

transcript.



                                                                     PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray dissenting with a note)*
Motion denied
Order to file appellant’s brief
Order issued and filed July 26, 2017

*(Chief Justice Gray does not join this order. He believes that it is premature to address
the merits of the issue briefed by the parties and decided by the Court. This is not the
first time that we have had difficulties in getting a transcription of an electronic recording
made in lieu of having a court reporter present at a hearing. See West v. State, No. 10-13-
00098-CR (Tex. App.—Waco Feb. 27, 2014, ord.) (not designated for
publication). Converting the electronic recording to a written transcription is not
normally necessary but presents unique challenges. The process of using electronic
recordings at some hearings and for some proceedings is designed to reduce the overall
cost of the judicial process by allowing electronic recordings in proceedings that are
unlikely to result in appeals or appealable issues. In this case, the procedures for
converting an electronically-recorded record to a transcribed written record do not
appear to have been exhausted, see TEX. R. APP. P. 13.2; 34.6(a)(2); 38.5; and Rules
Governing the Procedure for Making a Record of Court Proceeding by Electronic



        1 It is also of note that the docket sheet reflects that the State and Ruiz put their plea offers on the
record at the June 30, 2016 hearing.

Ruiz v. State                                                                                             Page 6
Recording, and certainly the procedure for dealing with a lost or destroyed record have
not been utilized. See TEX. R. APP. P. 34.6(f).

       Moreover, this issue is not about the failure of a reporter to be present to make the
record of the hearing. The hearing was being electronically recorded. There may, or may
not, have been an error in the methodology of making the electronic recording, which is
an issue that has not been addressed. But an electronic recording of the hearing was
made and it does not appear that anyone has actually attempted to transcribe it. Chief
Justice Gray would require the parties to exhaust the remedies available to obtain a
transcription of the electronically recorded record, or a substitute for that record in the
event that the electronic record is determined to be lost or destroyed. Until that process
is exhausted, and only then, would Chief Justice Gray require that the issue of a lost or
destroyed record for one preliminary hearing to be briefed as an alleged error in the briefs
of the parties and not as a preliminary matter. And with regard to resolving the issue,
Chief Justice Gray would have to resolve the question of whether there could be some
issue that arose at the pretrial hearing and upon which the appellant suffered an adverse
ruling, that could have also adversely impacted the ultimate result of the proceedings in
the trial court. When the Court asked the parties to address the process for moving
forward to obtain a record, we had not determined, and were not determining, that the
record was unavailable as the appellant has assumed in his response. In fact, that
determination has still not been made.

        Chief Justice Gray also notes the somewhat circular reasoning of the Court when
it holds that there is nothing in the record that shows that there was an objection to the
trial court’s failure to have a court reporter at the hearing. When an electronic recording
is otherwise being made as the record of the proceeding, a court reporter is only necessary
if one is requested. But then again, such a request may be on the electronic recording that
apparently no one has even begun to see if it is audible and can be transcribed. Until
efforts to obtain the record or a substitute for an otherwise unavailable transcription of
the electronic recording have been exhausted, ordering Appellant’s brief to be filed is
premature. Based on these comments and concerns Chief Justice Gray respectfully
declines to join the Court’s order.)




Ruiz v. State                                                                         Page 7
