Opinion issued April 16, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00632-CR
                           ———————————
                       ISRAEL CASTILLO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 8
                           Harris County, Texas
                       Trial Court Case No. 1863072


                                 OPINION

      On July 2, 2013, following a plea of not guilty, appellant, Israel Castillo,

was convicted by a jury of the misdemeanor offense of assault and was sentenced

by the court to ninety days’ confinement in the county jail. See TEX. PENAL CODE

ANN. § 22.01(a)(1) (West Supp. 2014). Castillo timely appealed from the trial
court’s judgment on July 2, 2013. The trial court clerk filed the clerk’s record on

October 22, 2013.

      The reporter’s record from the trial was due on October 30, 2013. On

November 7, 2013, the Clerk of this Court notified the court reporter, Sondra

Humphrey, that the reporter’s record was late. Humphrey responded on January

16, 2014, by filing a motion for an extension of time. We granted the motion and

ordered Humphrey to file the reporter’s record by February 14, 2014. On February

25, 2014, Humphrey filed a second motion for extension, which we denied, and we

required Humphrey to file the reporter’s record by March 14, 2014.

      On April 15, 2014, we abated the appeal and remanded the case to the trial

court for a determination regarding why the reporter’s record had not yet been filed

and for the trial court to set a date certain when the reporter’s record would be

filed. The Honorable Sherman A. Ross, the former Presiding Judge of the Harris

County Criminal Courts at Law, was assigned to hear the proceedings regarding

the past due reporter’s records taken by Humphrey in this case and eight other

cases pending in both this Court and the Court of Appeals for the Fourteenth

District of Texas. See TEX. GOV’T CODE ANN. § 74.056 (West 2013). Judge Ross

issued many orders and conducted numerous hearings in an effort to obtain the

reporter’s records in these cases. See TEX. R. APP. P. 35.3(c). Although Judge

Ross afforded Humphrey multiple opportunities to file the record, it became



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apparent that she was unable to provide a complete record in this case. Judge Ross

therefore appointed a substitute court reporter, Brenna DeMoss, the official court

reporter for County Criminal Court at Law No. 11 in Harris County, to evaluate

whether a complete reporter’s record could be prepared, certified, and filed in this

case. Further, after finding that Humphrey violated several of the court’s orders,

Judge Ross held her in contempt and, on August 15, 2014, sentenced her to

confinement in the Harris County Jail for 30 days and a $500 fine.

      Finally, on March 3, 2015, the trial court signed findings of fact and

conclusions of law in this case, which were filed with this Court in a supplemental

clerk’s record on March 11, 2015. Judge Ross found that “Ms. Humphrey had

been paid in full for the completed Matamoros and Castillo records.” Further, the

following are included in the trial court’s “Supplemental Findings of Fact”:

      4.    Ms. Humphrey provided this court with her computerized
            stenographic notes.
      5.    Ms. Humphrey provided this court with an informal audio
            recording of the proceedings.
      6.    At the request of the parties, the undersigned judge directed
            Brenna DeMoss, official court reporter for County Criminal
            Court at Law No. 11, of Harris County, Texas, to review the
            audio files, and stenographic notes submitted to the Court by
            Ms. Humphrey.
      7.    Ms. DeMoss could not reconstruct a complete reporter’s record
            based upon the audio and stenographic notes submitted to the
            Court by Ms. Humphrey.
      8.    Ms. Humphrey’s medical condition, personal, and professional
            problems during the latter part of 2013, and early 2014, . . .
            indicate she may not have been in a condition to transcribe the



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            proceedings, or otherwise conduct herself in a professional
            manner. . . .
      ...
      10.   The appellant timely filed a notice of appeal.
      11.   This case did not involve a waiver of a court reporter, nor was it
            a mere formality or summary proceeding.
      12.   The appellant bears no fault for Ms. Humphrey’s failure to
            complete and file the reporter’s record.
      13.   The reporter’s record is necessary to the appeal’s resolution.
      14.   The reporter’s record cannot be replaced by agreement of the
            parties to the facts contained in the record, if a complete and
            legible record exists.
      ...
      16.   Based upon Ms. Humphrey’s representations to this court
            regarding the status of the reporter’s record, and her failure to
            either file the completed record or provide the court with
            stenographic notes capable of being transcribed by another
            official court reporter using the same software system resulting
            in a complete record[,] this Court does not find Ms. Humphrey
            to be credible.
      17.   The undersigned finds Ms. Humphrey failed to file the record
            because she had neither a complete stenographic record, nor a
            complete audio recording of the proceedings in the trial court;
            or she willfully refused and continues to refuse to fully and
            accurately transcribe her notes.
      18.   This Court does not believe a complete record will ever be filed
            by Ms. Humphrey or another court reporter.

Judge Ross then made the following conclusions of law:

      1.    Sondra Humphrey violated her oath to keep a correct, impartial
            record of (1) the evidence offered in the case; (2) the objections
            and exceptions made by the parties to the case; and (3) the
            rulings and remarks made by the court in determining the
            admissibility of testimony presented in the case. . . .
      2.    The appellant is entitled to a new trial.

      Pursuant to Texas Rule of Appellate Procedure 34.6(f), if, through no fault

of the appellant, a reporter’s record is lost or destroyed, and the portion of the

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record that is lost or destroyed is necessary to the appeal’s resolution and cannot be

replaced by agreement of the parties, the appellant is entitled to a new trial. TEX.

R. APP. P. 34.6(f); see Mendoza v. State, 439 S.W.3d 564, 566 (Tex. App.—

Amarillo 2014, no pet.). If, however, the missing portion of a reporter’s record is

not necessary to the appeal’s resolution—and the appellant is therefore not harmed

by the incomplete reporter’s record—the appellant is not entitled to a new trial.

See TEX. R. APP. P. 34.6(f)(3); Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim.

App. 2013); Routier v. State, 112 S.W.3d 554, 571–72 (Tex. Crim. App. 2003);

Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999).

      We agree with the trial court’s conclusion that appellant is entitled to a new

trial. Although Judge Ross provided Humphrey with numerous opportunities to

provide a complete record and, when Humphrey proved unable to do so, appointed

a substitute court reporter to transcribe the record from Humphrey’s stenographic

notes and audio recordings, no record has been prepared or certified, and the

substitute reporter testified that she was unable to prepare, certify, and file a

reporter’s record from Humphrey’s notes and audio recordings. See Johnson v.

State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004) (stating that court has

authority to appoint substitute court reporter to prepare and certify record from

original reporter’s notes). The record therefore supports the trial court’s findings

that Humphrey’s stenographic notes and audio recording were incomplete and that



                                          5
the missing portion of the record—the entire reporter’s record—is irretrievably lost

or destroyed. See TEX. R. APP. P. 34.6(f)(2); Mendoza, 439 S.W.3d at 565–66; see

also Johnson, 151 S.W.3d at 196 (holding that court reporter’s notes and records,

or portions thereof, can only be considered lost if missing portions of record are

irretrievable and may not be considered lost based solely on reporter’s repeated

failure to file record).

       The record further supports the trial court’s finding that the missing

reporter’s record is necessary to appellant’s appeal. See TEX. R. APP. P. 34.6(f)(3).

There is no reporter’s record from any portion of the trial in this case. And, in the

absence of a reporter’s record, we must presume the regularity of the documents in

the trial court and are bound by the recitations in the records of the trial court,

including the judgment. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.

App. 1984).       Therefore, without any reporter’s record, and “[g]iven the

circumstances of this case, it would strain credulity to conclude that the destroyed

reporter’s record was unnecessary to the resolution of the appeal.” Villagomez

Invs., L.L.C. v. Magee, 294 S.W.3d 687, 690 (Tex. App.—Houston [1st Dist.]

2009, no pet.); see also TEX. R. APP. P. 34.6(c)(5) (requiring that record include all

evidence admitted at trial for criminal appellant to raise argument as to sufficiency

of evidence); id. 38.1(g), (i) (requiring appellant’s brief to contain statement of

facts “supported by record references” and argument “with appropriate citations . .



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. to the record”); Bryant v. State, No. 14-13-00922-CR (Tex. App.—Houston [14th

Dist.] Apr. 7, 2015, no pet. h.) (“Appellant’s ability to present meaningful issues

on appeal after a jury trial is severely limited in the absence of a reporter’s

record.”); cf. Issac, 989 S.W.2d at 757 (declining to adopt automatic rule of

reversal in cases with lost or destroyed reporter’s record, but recognizing that “the

lack of a record may in some cases deprive an appellate court of the ability to

determine whether the absent portions are necessary to the appeal’s resolution”).

      Finally, the court reporter represented to this Court, in her January 16, 2014

motion for extension of time to file the reporter’s record, that appellant requested

that the reporter’s record be prepared, see TEX. R. APP. P. 34.6(f)(1), and the record

supports the trial court’s findings that appellant “bears no fault” for the reporter’s

inability to produce the reporter’s record, see id. 34.6(f)(2), and that the reporter’s

record cannot be replaced by agreement of the parties, see id. 34.6(f)(4).

      Accordingly, we reinstate this appeal, reverse the trial court’s judgment, and

remand the cause for a new trial. See TEX. R. APP. P. 34.6(f), 43.2(d); Mendoza,

439 S.W.3d at 566. Any pending motions are dismissed as moot.



                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).

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