REVERSE and REMAND; Opinion Filed July 11, 2013.




                                             In The
                                       Court of Appeals
                                Fifth District of Texas at Dallas

                                       No. 05-12-00520-CR

                         HENRY DEMETRIUS ARNOLD, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 1
                                   Dallas County, Texas
                          Trial Court Cause No. MB09-31021-A

                               MEMORANDUM OPINION
                             Before Justices Lang, Myers, and Evans
                                    Opinion by Justice Myers
       Appellant was convicted of driving while intoxicated and sentenced to 180 days in the

Dallas County Jail and a $750 fine. In one issue, he argues that he is entitled to a new trial

because he timely requested the preparation of the reporter’s record, the reporter’s record of the

trial of this case was either lost or destroyed through no fault of appellant’s, the lost or destroyed

reporter’s record is necessary to the appeal, and the parties could not agree as to what the

contents of any substituted reporter’s record would or would not show. We sustain appellant’s

issue and reverse and remand this case for a new trial.

                                            DISCUSSION

       On August 15, 2012, based on correspondence we received from the court reporter in this

case, Yolanda Atkins, stating that the SD card on which the trial of this case was recorded had

been stolen, we ordered the trial court to make findings regarding the record. After receiving the
trial court’s findings, we entered an order on October 2, 2012, adopting the trial court’s findings

that (1) appellant requested and paid for the record; (2) Ms. Atkins stated that the only portion of

the record she was able to recover and transcribe was the closing arguments and sentencing

because those portions of the record had already been transcribed and backed up; (3) the audio

recording made by Ms. Atkins on a cassette tape had been recorded over; (4) appellant was not at

fault for the loss or destruction of the record; (5) the parties could not agree on a substituted

record; and (6) the Dallas County District Attorney’s Office asked for additional time to

determine whether any part of the audio recording could be retrieved.

           Our October 2, 2012 order directed the court reporter to file the reporter’s record from the

closing arguments and sentencing.1 We also ordered the parties to file a written stipulation

stating either (1) the portion, if any, of the audio recording that could be retrieved; and (2)

whether the parties could agree to the content of that transcription; or (3) that no portion of the

audio recording could be retrieved. On November 14, 2012, after receiving no response from the

parties, we ordered them to file the written stipulation within ten days. On December 13, 2012,

we received a supplemental clerk’s record containing the parties’ written stipulation that “no

portion of any audio recording pertaining to the actual trial on the merits could be retrieved” and

“that the parties can reach no agreement regarding what the substantive and accurate contents of

any substituted Reporter’s Record would or would not show.”

           Rule 34.6(f) of the Texas Rules of Appellate Procedure provides in part:

           (f) Reporter’s record 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 appellants fault, a significant exhibit or a
                      significant portion of the court reporter’s notes and records has

   1
       That portion of the record has been filed with the Court.



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                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 if 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).

         The record of the trial of this case has been lost except for closing arguments and

sentencing. The parties could not agree regarding what the contents of any substituted reporter’s

record would or would not show. “Based on the hearings conducted by the trial court and the

evidence adduced” in this case, the State concedes “that the contentions in Appellant’s sole issue

entitle Appellant to the relief Appellant has requested on appeal.” In light of the trial court’s

findings and the parties’ written stipulation, we therefore conclude the requirements of the rule

have been met. Accordingly, we sustain appellant’s issue.

         We reverse the trial court’s judgment and remand this case to the trial court for a new

trial.

                                                       Lana Myers
                                                       LANA MYERS
                                                       JUSTICE


Do Not Publish
TEX. R. APP. P. 47
120520F.U05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

HENRY DEMETRIUS ARNOLD,                               On Appeal from the County Criminal Court
Appellant                                             No. 1, Dallas County, Texas
                                                      Trial Court Cause No. MB09-31021-A.
No. 05-12-00520-CR         V.                         Opinion delivered by Justice Myers.
                                                      Justices Lang and Evans participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED .

Judgment entered this 11th day of July, 2013.



                                                      /Lana Myers/
                                                      LANA MYERS
                                                      JUSTICE




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