                                         NO. 12-19-00052-CR

                               IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

 JOSHUA DALE LINDSEY,                                         §        APPEAL FROM THE 2ND
 APPELLANT

 V.                                                           §        JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                                     §        CHEROKEE COUNTY, TEXAS

                                             PER CURIAM ORDER
       Appellant, Joshua Dale Lindsey, filed an objection to the reporter’s record. He states that
volumes four and five are virtually identical and that the court reporter acknowledges having made
a mistake, particularly with respect to volume five, the transcript from a January 2018 hearing.
Appellant states that he has yet to receive a corrected record despite contacting the reporter and
that lack of the record’s availability is not due to his own fault. Appellant is correct that volume
five, which purports to transcribe a hearing from January 2, 2018, virtually mirrors the transcript
from volume four. It is unclear whether the transcript simply requires correction or has been lost
or destroyed.

       The Texas Rules of Appellate Procedure provide that, when the reporter’s record is 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
       (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). Regarding the correction of inaccuracies in the reporter’s record, the
parties may agree to correct an inaccuracy in the record without the reporter’s recertification. TEX.
R. APP. P. 34.6(e)(1). When, as in this case, the dispute arises after the reporter’s record has been
filed in the appellate court, that court may submit the dispute to the trial court for resolution. TEX.
R. APP. P. 34.6(e)(3). If, after notice and hearing, the trial court finds any inaccuracy, it must order
the reporter to conform the record (including text and any exhibits) to what occurred in the trial
court, and to file certified corrections in the appellate court. TEX. R. APP. P. 34.6(e)(2). “By written
stipulation filed with the trial court clerk, the parties may agree on the contents of the appellate
record.” TEX. R. APP. P. 34.2. “An agreed record will be presumed to contain all evidence and
filings relevant to the appeal.” Id.

        Accordingly,

        It is ORDERED that the Honorable Chris R. Day shall, in accordance with Texas Rule of
Appellate Procedure 34.6(e)(2), conduct a hearing, on or before December 18, 2019, and make
written findings of fact as to whether (1) volume five of the record has been lost or destroyed, and
(2) there are any inaccuracies in the record and, if any such inaccuracies exist, the corrections to
be made. If the trial court finds the record to be inaccurate, the trial court shall order the court
reporter to conform the reporter’s record to what occurred in the trial court and file certified
corrections with this Court. If the trial court finds the record to be lost or destroyed, the trial court
shall determine whether (1) without Appellant’s fault, a significant portion of the record has been
lost or destroyed and, if so, whether the missing portion of the record is necessary to the appeal’s
resolution, (2) the missing portion of the record can be replaced by stipulation or agreement of the
parties, and (3) Appellant is entitled to a new trial under Rule 34.6(f).
        It is FURTHER ORDERED that a supplemental clerk’s record including the trial court’s
written findings, along with any supporting documentation and orders, be certified to this Court
on or before January 3, 2020.
        It is FURTHER ORDERED that the court reporter file a reporter’s record of the Rule 34.6
hearing on or before January 3, 2020.
        WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th Court of
Appeals District of Texas, at Tyler.
       GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this ____ day of
December 2019, A.D.

                                     KATRINAMCCLENNY, CLERK

                                     12th Court of Appeals




                                     By:_______________________________________
