                             NUMBER 13-11-00133-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG
____________________________________________________________

JUAN CARLOS RODRIGUEZ,                                                        Appellant,

                                            v.

THE STATE OF TEXAS,                                 Appellee.
____________________________________________________________

             On appeal from the 206th District Court
                   of Hidalgo County, Texas.
____________________________________________________________

                          MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Rodriguez and Garza
                      Memorandum Opinion Per Curiam

       Appellant, Juan Carlos Rodriguez, and the State have filed a joint motion to

summarily grant appellant’s out-of-time appeal based on the inability to obtain a reporter’s

record of the 1991 trial of this case. In their motion, the parties state that it has been

determined that the court reporter’s notes pertaining to appellant’s trial are no longer

available, there is no possibility that only portions of the record which are significant or
necessary to resolution of the appeal can be obtained, and they cannot agree on the

content of the missing material. Additionally, the parties request that this Court grant

appellant an out-of-time appeal of all of his convictions and sentences.

       Texas Rule of Appellate Procedure 34.6(f) states that 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

       (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). Based on our review of the parties’ motion and the affidavit of the

reporter, we conclude that appellant is entitled to an out-of-time appeal and a new trial.

See id. Accordingly, the parties’ motion is GRANTED. The motion for an out-of-time

appeal is GRANTED, judgment of the trial court is REVERSED, and the cause is

REMANDED for a new trial.


                                                    PER CURIAM

Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
18th day of August, 2011.




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