                                                                              Raul Becerra




                             Fourth Court of Appeals
                                    San Antonio, Texas
                                          January 14, 2015

                                       No. 04-14-00671-CR

                                       The STATE of Texas,
                                            Appellant

                                                  v.

                                   Raul Becerra CASTORENA,
                                            Appellee

                 From the 63rd Judicial District Court, Val Verde County, Texas
                                   Trial Court No. 11297CR
                      The Honorable Enrique Fernandez, Judge Presiding


                                          ORDER

Sitting: Sandee Bryan Marion, Chief Justice
        Luz Elena D. Chapa, Justice
        Jason Pulliam, Justice

        The State of Texas appeals the trial court’s September 3, 2014, order granting Raul
Becerra Castorena’s motion to quash the indictment. The docket sheet in the clerk’s record
reflects that the trial court heard the motion on July 26, 2012, and that the court took the “motion
under advisement to review authorities and arguments presented by counsel.” The State of
Texas has advised this court that it requested a reporter’s record of that hearing from John Price,
the official court reporter of the 63rd Judicial District Court of Val Verde County, to be filed in
this appeal.

         On December 10, 2014, Mr. Price notified this court that he was away from the court on
the day of the hearing on the motion to quash, and that he had been unable to ascertain whether a
record was made of the proceedings. He stated that the county auditor’s office had no record of
paying a visiting substitute reporter, but speculated that the official reporter for the 83rd Judicial
District Court may have reported the hearing. The trial court subsequently notified this court that
the former official court reporter for the 83rd Judicial District Court, Patricia Phelps, was
probably the substitute court reporter who reported the proceeding. The trial court further stated
that it had been unsuccessful in its attempts to contact Phelps, but would continue its efforts to
locate her.
        In order to proceed with this appeal, this court must determine whether the hearing was
reported, whether the record is lost or destroyed and not capable of being replaced, and whether
the record is necessary to the resolution of this appeal. See TEX. R. APP. P. 34.6(f). We therefore
abate this appeal and remand the case to the trial court to make the necessary factual
determinations.

        We order the trial court to hold a hearing by February 13, 2015 and to make findings of
fact addressing the following questions:

       1) Whether the July 26, 2012 hearing on Castorena’s motion to quash was reported;
       2) Whether the State of Texas timely requested a reporter’s record;
       3) If the hearing was reported, what is the name and last known contact information of
          the court reporter;
       4) Whether the court reporter’s notes and records have been lost or destroyed;
       5) Whether the lost or destroyed reporter’s record can be replaced by agreement of the
          parties;
       6) Whether any testimony was taken and whether any exhibits were offered or admitted
          into evidence at the hearing;
       7) Whether the original exhibits, if any, have been lost or destroyed; and
       8) Whether any lost or destroyed exhibits may 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 exhibits, if any.

We order the trial court to require the presence of trial counsel for the State and for Castorena at
the hearing and to make all reasonable efforts to secure the attendance of Patricia Phelps. We
further order the trial court clerk to file the court’s findings of fact in a supplemental clerk’s
record within five days of the hearing.



                                                     _________________________________
                                                     Luz Elena D. Chapa, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 14th day of January, 2015.



                                                     ___________________________________
                                                     Keith E. Hottle
                                                     Clerk of Court
