                                                                              Raul Becerra




                            Fourth Court of Appeals
                                   San Antonio, Texas
                                   Thursday, February 26, 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. That order resulted from a hearing held in
the trial court on July 26, 2012. The official reporter 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. When the trial court and the court
reporter were unable to identify and locate the reporter who may have taken the record, we
abated the appeal for the trial court to conduct a hearing and make fact findings.

       In accordance with our order, the trial court held hearings on January 29, 2015 and
February 12, 2015, and made written findings. The court’s findings and reporter’s records of the
hearings have been filed in a supplemental record. The court’s findings are attached to this
order. We reinstate this appeal on the docket of this court and adopt the trial court’s findings.

Record of the July 26, 2012 hearing

        We conclude that the record of the July 26, 2012, hearing, if one was taken, has been lost
or destroyed and cannot be replaced. However, the State was required to request the record in
writing at or before the time for perfecting the appeal and file a copy of the request with the trial
court clerk. TEX. R. APP. P. 34.6(b)(1), (2). The deadline for perfecting the appeal in this case
was September 23, 2014. The trial court found that no written request for the reporter’s record
was made, and no request appears in the clerk’s record or on the docket sheet. The trial court
was unable to determine when the State’s informal request for the record was made, other than
that the request was made on or before December 8, 2014.

         This appeal will proceed without a record of the July 26, 2012, hearing unless the State
files a response by March 9, 2015 (1) establishing that it timely requested the record be prepared
and (2) explaining why the record of the July 26, 2012, non-evidentiary hearing is necessary to
the resolution of the appeal. See TEX. R. APP. P. 34.6(f)(1), (3).

Record of the March 2011 trial

        During the abatement, the State made the court reporter and trial court aware that it is
also requesting a complete record of the March 2011 jury trial that resulted in a mistrial. The
court noted that the court reporters have begun preparing the record. We order court reporters
John Price and Gene Steele to file the reporter’s record of the March 2011 trial by March 30,
2015. If agreed or substitute copies of State’s Exhibit 2 and Defendant’s Exhibit 3 have not been
provided to the reporters by the time the record is due, the record should be filed with
placeholders indicating those exhibits are missing.

State’s Exhibit 2 and Defendant’s Exhibit 3 from the March 2011 trial

       The trial court found that Defendant’s Exhibit 3 is lost and that State’s Exhibit 2 may be
lost. We order the parties to cooperate in attempting to reach an agreement as to replacement
copies of these exhibits and to deliver the agreed replacements to the court reporter.

        We order the State to file a report, no later than March 19, 2015, both with this court
and the trial court, either stating that the exhibits have been replaced by agreement or setting
forth the reasons no agreement could be reached and the nature of any disagreements about the
accuracy of any proposed replacement.

        If the exhibits are not replaced by agreement of the parties, the trial court shall make
findings, with or without a hearing at the trial court’s discretion, as to whether either exhibit can
be replaced “with a copy determined by the trial court to accurately duplicate with reasonable
certainty the original exhibit.” See TEX. R. APP. P. 34.6(f)(4). If the exhibits can be replaced, they
should be delivered to the court reporter for inclusion in the record. Any findings made by the
trial court pursuant to this order should be filed with this court in a supplemental record by
March 30, 2015.


                                                      _________________________________
                                                      Luz Elena D. Chapa, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 26th day of February, 2015.


                                                      ___________________________________
                                                      Keith E. Hottle
                                                      Clerk of Court
