Reinstated; Motion Granted; Affirmed in Part and Reversed and Remanded in
Part, and Memorandum Opinion filed September 27, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-12-00031-CR

                      RAYMOND EDWARD LEAL, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 208th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1227701


                  MEMORANDUM                         OPINION

       Appellant entered a plea of guilty to murder and proceeded to a jury trial on
punishment. In accordance with the jury’s verdict, the trial court sentenced appellant on
December 9, 2011, to confinement for ninety-nine years in the Institutional Division of
the Texas Department of Criminal Justice and assessed a $10,000 fine. Appellant timely
appealed and counsel was appointed to represent him on appeal. On December 30, 2011,
counsel filed a request for the reporter’s record, including the testimony of all witnesses
at the hearing on punishment.
       Brenda Burleigh, the court reporter who reported the testimony in appellant’s
punishment trial died unexpectedly before the record in this appeal was prepared. B.J.
Orsack, the official court reporter for the 174th District Court, assisted by Rhonda
Campos, Ms. Burleigh’s scopist, and Cheryl Pierce, another court reporter, transcribed
the record that had been taken by Brenda Burleigh. On June 4, 2012, B.J. Orsack filed six
volumes of reporter’s record in this appeal.

       Appellant asserts that the record is incomplete, and on June 25, 2012, appellant
filed an unopposed motion in this court to abate the appeal and remand to the trial court
for a hearing concerning the missing portions of the reporter’s record. According to
appellant’s motion, the testimony of eight of the State’s thirteen witnesses is missing in
whole or in part from the record. Specifically, appellant alleges that the testimony of the
following witnesses is missing in whole or in part:

       1.     Officer R. Hernandez;
       2.     Officer R. Abdala;
       3.     Officer M. Skinner;
       4.     Jennifer Vasquez;
       5.     Hugh James;
       6.     Odette Elliston;
       7.     Deputy Ritchie; and
       8,     Deputy Palacios.

       Included in the reporter’s record are the following notes from B.J. Orsack
explaining the missing record:

       (Note: Based on the handwritten worksheet of the certified official reporter
       who reported this trial, Brenda Burleigh, now deceased, her real-time setup
       turned off at this point in the trial. After a careful and tedious search and
       review of her computer and office, no steno or computer notes, whether
       electronic, physical or otherwise, have been located for transcription to be
       included in the reporter's record of the following witnesses: The remainder
       of Officer R. Hernandez, Officer R. Abdala, and Officer M. Skinner.
       According to the handwritten notes of the certified official reporter, the
       following exhibits were offered during these proceedings and have been

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        included as part of the reporter's record: State’s Exhibit Nos. 5, 6, 8, 10, 11
        and 47.).    *                      *                    *

        (Note: Based on the handwritten worksheet of the certified official reporter
        who reported this trial, Brenda Burleigh, now deceased, her real-time setup
        turned off at this point in the trial. After a careful and tedious search and
        review of her computer and office, no steno or computer notes, whether
        electronic, physical or otherwise, have been located for transcription to be
        included in the reporter's record of the following witnesses: The remainder
        of Jennifer Vasquez, Hugh James, Odette Elliston, Deputy Ritchie, and
        Deputy Palacios. According to the handwritten notes of the certified official
        reporter, the following exhibits were offered during these proceedings and
        have been included as part of the reporter's record: State’s Exhibit Nos. 13
        through 30, 31 through 52, and 53 through 66.).

        Appellant’s motion was supported by affidavits from B.J. Orsack, Cheryl Pierce,
and Rhonda Campos, who attested that they had made a diligent search but were unable
to locate for any notes or records concerning the missing testimony. In addition, appellant
certified that Assistant District Attorney Alan Curry, counsel for the State, had no
opposition to abatement for a hearing. Accordingly, we granted appellant’s motion to
abate and directed the trial court to conduct a hearing and make findings in accordance
with Texas Rule of Appellate Procedure 34.6(f), which governs the procedure for cases in
which the reporter’s record is lost or destroyed.

        On August 15, 2012, the trial court conducted a hearing, at which affidavits from
B.J. Orsack, Cheryl Pierce, Rhonda Campos, and appellant’s counsel were admitted.
Counsel for appellant presented argument, but counsel for the State declined to present
argument. At the conclusion of the hearing, the trial court made the following findings of
fact:

        1.     Defendant Raymond Edward Leal (“Defendant”) has timely
        requested a reporter’s record;
        2.     Without any fault on the part of Defendant, a significant portion of
        the court reporter’s notes and records has been lost or destroyed;
        3.     The lost or destroyed portion of the reporter’s record is necessary to
        the appeal’s resolution; and
        4.     The lost or destroyed reporter’s record cannot be replaced by

                                              3
       agreement of the parties.

       The trial court’s findings and the reporter’s record from the abatement hearing
have now been filed in this court. On September 7, 2012, appellant filed a motion to
remand the cause to the trial court for a new trial. No response to the motion was filed.

       We review cases involving the loss or destruction of the record from appellant’s
standpoint, and we resolve any reasonable doubt in appellant’s favor. Routier v. State,
112 S.W.3d 554, 570-71 (Tex. Crim. App. 2003). The question of whether a missing
portion of the reporter’s record is necessary to the appeal’s resolution is essentially a
harm analysis. Routier, 112 S.W.3d at 571; see also Issac v. State, 989 S.W.2d 754, 757
(Tex. Crim. App. 1999).

       The trial court’s findings are supported by the evidence in our record. All or
portions of the testimony of eight of the State’s thirteen witnesses are missing. According
to the affidavits from the three individuals who attempted to complete the record on
behalf of the deceased court reporter, the missing portions of the court reporter’s notes
and records are irretrievable. Therefore these missing portions are “lost” as contemplated
by Rule 34.6(f). See Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004)
(holding that a court reporter's notes and records, or portions thereof, can be considered
“lost” only if the missing portions of the appellate record are irretrievable). Numerous
exhibits were admitted through the witnesses whose testimony is lost. In his affidavit
admitted at the abatement hearing, appellant’s counsel averred that he is unable to
determine the admissibility, relevance, or authenticity of the exhibits admitted at the
punishment trial. He further stated in his affidavit that he is unable to determine what was
said during the “vast” parts of the punishment trial that are lost, and he cannot determine
whether objections or proffers were made. Moreover, he cannot determine whether
appellant was afforded effective assistance of counsel. Counsel avers that he cannot make
an argument concerning the effectiveness of counsel and he cannot perform a proper
harm analysis. He further asserted that he and counsel for the State had been “unable to
reach any agreement as to the substance of the missing record.” We conclude that the

                                             4
missing record is necessary to the resolution of the appeal of appellant’s ninety-nine year
sentence.

       Based on the evidence presented at the abatement hearing and the trial court’s
findings, we conclude that appellant is entitled to a new trial on punishment. See Tex. R.
App. P. 34.6(f) (providing that appellant is entitled to a new trial when a significant
portion of the reporter’s record necessary to the appeal is lost or destroyed through no
fault of appellant); see also Kirtley v. State, 56 S.W.3d 48, 51-2 (Tex. Crim. App. 2001)
(holding that a potential claim of ineffective assistance of counsel at the punishment
hearing makes a lost record “necessary to the appeal’s resolution”). The missing record
from the punishment hearing is not “necessary to the appeal’s resolution,” however, with
respect to the trial court’s finding of appellant’s guilt pursuant to his plea of guilty.
Therefore, the error resulting from the lost record is harmless with respect to appellant’s
conviction.

       Accordingly, we reinstate the appeal and grant appellant’s motion to remand with
respect to the trial on punishment. We reverse the trial court’s judgment as to punishment
and remand the cause to the trial court for a new trial on punishment.


                                     PER CURIAM


Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




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