      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00102-CR



                                     Isaul Tavera, Appellant

                                                 v.

                                  The State of Texas, Appellee

     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
      NO. D-1-DC-00-007029, THE HONORABLE JON N. WISSER, JUDGE PRESIDING



                            MEMORANDUM OPINION


PER CURIUM

               Isaul Tavera pleaded guilty to unlawful restraint in exchange for a suspended sentence

and placement on community supervision. See Tex. Penal Code § 20.02; Tex. Code Crim. Proc. art.

42.12, § 3. The trial court subsequently revoked his community supervision and sentenced him to

three years’ imprisonment. See Tex. Code Crim. Proc. art. 42.12, §§ 21, 23. Tavera now appeals

the judgment revoking his community supervision.1




       1
           Tavera originally pleaded guilty in 2001. His community supervision was revoked in
May 2006. No notice of appeal was filed. However, in December 2012, Tavera filed an application
for a writ of habeas corpus pursuant to the provisions of Article 11.07 of the Texas Code of Criminal
Procedure alleging that he was denied his right to appeal. See Tex. Code Crim. Proc. art. 11.07.
Apparently, appellate counsel was only appointed after the deadline for filing a notice of appeal had
passed because Tavera’s counsel at the revocation hearing failed to timely withdraw from
representation. Relying on the trial court’s determination that Tavera desired to appeal but was
denied his right to appeal through no fault of his own, the Court of Criminal Appeals granted
Tavera the opportunity to file an out-of-time appeal. See Ex parte Tavera, No. AP-76,949,
2013 WL 172861, *1 (Tex. Crim. App. Jan. 16, 2013).
                The reporter’s record in this appeal was originally due on April 5, 2013. After the

court reporter failed to respond to this Court’s notice that the record was overdue, we issued an order

directing the court reporter of the 299th District Court, Angela Chambers, to tender the reporter’s

record for filing no later than June 12, 2013. Ms. Chambers responded to our notice, explaining that

Tavera’s case was transcribed by the former court reporter for the 299th District Court, Leon Justice.

                Subsequent communications with this Court indicated that another court reporter,

Jennifer Corley, also handled portions of the case, although Mr. Justice transcribed the revocation

hearing.2 We were then notified that Mr. Justice was experiencing technical difficulties in producing

his portion on the record. Apparently, Mr. Justice is unable to produce a properly formatted record

from his recordings, and his older version of court reporting software is not compatible with the

current version used by Ms. Chambers. Thus, attempts to convert the data from Mr. Justice’s

recordings into a format that could produce a properly formatted record were unsuccessful. There

were subsequent communications with Ms. Chambers about the possibility of her producing a record

from Mr. Justice’s recordings.3

                On January 9, 2014, we received, via electronic filing from Ms. Chambers, a record

of the revocation hearing in this case. However, the record does not comply with the Texas Rules

of Appellate Procedure. It is not properly formatted nor is it certified by Mr. Justice. Further, there


       2
         Ms. Corley attempted to file her portions of the record; however, we initially rejected her
portions of the record because the record must be filed as one consolidated record rather than
piecemeal. See Tex. R. App. P. 2(a). We eventually filed Ms. Corley’s portion of the record in a
supplemental record while waiting for Mr. Justice’s portion of the record to be filed.
       3
          The last communication from Ms. Chambers, an email received on December 4, 2013,
indicated that she was in the process of “rewriting” Mr. Justice’s transcript (an unformatted transcript
produced when importing the data in ASCII format), but abandoned that process because of
deadlines she faced in her own workload.

                                                   2
are no exhibits accompanying this record, and we have been informed that there has been some

difficulty in locating the exhibits that were admitted during the revocation hearing.

                The rules of appellate procedure give appellate courts the power to take actions

designed to ensure the preparation and filing of the record, including the appointment of a substitute

court reporter to prepare and file the record from the original court reporter’s notes. See Johnson

v. State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004) (footnotes omitted); Routier v. State,

112 S.W.3d 554, 563–70 (Tex. Crim. App. 2003). Based on the information provided to this Court,

it appears that the reporter’s record from the revocation hearing may possibly be prepared from

Mr. Justice’s recordings. Therefore, we abate this appeal and remand this case to the trial court to

conduct a hearing to determine:


        (1)     whether Mr. Justice is capable of preparing a reporter’s record of the revocation
                hearing in this appeal;

        (2)     whether Ms. Chambers can review Mr. Justice’s recordings and utilize them to
                prepare a reporter’s record of the revocation hearing;

        (3)     whether the exhibits admitted during the revocation hearing can be located;

        (4)     whether a significant exhibit or significant portion of the reporter’s record is
                “irretrievably” lost;4 and

        (5)     if the record is not “irretrievably” lost, a reasonable time period within which the
                reporter’s record can be prepared and filed with this Court.




       4
            Texas Rule of Appellate Procedure 34.6(f) provides that an appellant is entitled to a new
trial if a significant and necessary part of the reporter’s record is lost or destroyed through no fault
of his own, the appellant timely requested the record, and the parties cannot agree to the record. See
Tex. R. App. P. 34.6(f). 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.3d 193, 196 (Tex. Crim. App. 2004).

                                                   3
This hearing should be held at the earliest opportunity. To save time, the parties may stipulate to

some of the issues to be resolved.

                The trial court shall determine the issues identified above and ultimately determine:

(1) a reasonable time period in which the reporter’s record can be prepared and filed in this Court,

or (2) whether the reporter’s record is lost or destroyed as contemplated by Texas Rule of Appellate

Procedure 34.6(f). See Johnson, 151 S.W.3d at 196. The trial court shall prepare written findings

of fact and conclusions of law with regard to the issues identified in this opinion. The district clerk

shall prepare a supplemental clerk’s record containing such findings of fact and conclusions of law

as well as any orders signed by the trial court. The court reporter shall prepare a transcription of the

hearing and file that transcription as a supplemental reporter’s record in this appeal.

                The district clerk and the court reporter shall file their supplemental records with the

Clerk of this Court within 30 days of the date of this opinion. If the trial court determines that

additional time is required to resolve the issues identified, the trial court shall file a written request

for additional time explaining the reason(s) and the diligence which has been exercised in attempting

to comply with the deadline established by this opinion.



Before Justices Puryear, Goodwin, and Field

Filed: January 22, 2014

Do Not Publish




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