                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-09-00009-CR

ED COOKS,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 13th District Court
                            Navarro County, Texas
                           Trial Court No. 31327-CR


                      MEMORANDUM OPINION


      The jury convicted Edward Cooks of 5 counts of sexual assault and assessed his

punishment at 35 years confinement and a $10,000 fine for each count. TEX. PENAL

CODE ANN. 22.011 (Vernon Pamph. 2010). We reverse and remand.

      The reporter’s record in this appeal was originally due on April 13, 2009. After

numerous attempts to obtain the record, this Court issued an order on November 10,

2010, abating the appeal for a second time to determine whether the reporter’s record
was “lost or destroyed” within the meaning of TEX. R. APP. P. 34.6(f). The trial court

conducted a hearing in accordance with this Court’s order.

        The trial court entered findings that (1) the original court reporter is not capable

of preparing the reporter’s record in this appeal, (2) another certified court reporter

determined that a proper reporter’s record cannot be prepared from the records, and (3)

the reporter’s record is irretrievably lost.     The trial court concluded that the lost,

destroyed, or inaudible portions of the reporter’s record are necessary to the appeal’s

resolution.

        Rule 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.

        Because the reporter’s record is irretrievably lost and necessary to the appeal, we

reverse Cooks’s convictions and remand the case for a new trial. Payne v. State, 802

S.W.2d 686 (Tex. Crim. App. 1990).




Cooks v. State                                                                         Page 2
                                       AL SCOGGINS
                                       Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed February 2, 2011
Do not publish
[CRPM]




Cooks v. State                                       Page 3
