                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-14-00034-CR
                                 ________________________

                              DAVID T. MENDOZA, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



                           On Appeal from the 137th District Court
                                    Lubbock County, Texas
              Trial Court No. 2006-414,757; Honorable Cecil G. Puryear, Presiding


                                            June 16, 2014

                              ABATEMENT AND REMAND
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Following a plea of not guilty, Appellant, David T. Mendoza, was convicted by a

jury of two counts of aggravated assault with a deadly weapon 1 and sentenced to

twenty years confinement as to each count. Appellant perfected this appeal, and the

clerk’s record was filed on April 1, 2014. The court reporter filed an extension of time


       1
          TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). As indicted, an offense under this section is
a felony of the second degree.
indicating the original reporter on the case had passed away, and she had been asked

to transcribe the record and had just received the audio tapes. An extension was

granted to May 12, 2014. A second request for an extension of time was filed, and the

deadline was extended to June 12, 2014. On May 15, 2014, three days after filing her

second extension request, the reporter filed a letter notifying this Court her “efforts on

this transcript have ceased.”    She explained she was unable to transcribe bench

conferences from incomplete notes and also noted the audio cassettes were inaudible.

She did, however, feel competent to transcribe the trial sans the bench conferences. By

her letter she reported that she had notified the trial court judge and counsel for

Appellant and the State. Her letter added that counsel for Appellant was contemplating

whether Appellant may be entitled to a new trial.


      The second deadline for filing the reporter’s record has passed, and there has

been no communication with this Court regarding the status of the record from anyone

involved with this appeal. Rule 35.3(c) of the Texas Rules of Appellate Procedure

provides that trial courts and appellate courts are jointly responsible for ensuring the

filing of an appellate record. TEX. R. APP. P. 35.3(c). This Court may enter any order

necessary to accomplish that goal. Id. If, through no fault of the appellant, a reporter’s

record is lost, destroyed or a “significant portion” of the recordings is inaudible, an

appellant is entitled to a new trial, id. at 34.6(f)(2), if that portion of the record is

necessary to the appeal’s resolution and the lost, destroyed or inaudible portion cannot

be replaced by agreement of the parties. Id. at (f)(3), (4). Consequently, we abate this

appeal and remand the case to the trial court for further proceedings.




                                            2
       Upon remand, the trial court shall utilize whatever means necessary to

immediately determine the following:


       (1) whether any portion of the record from the underlying trial cannot be
           transcribed;

       (2) whether any portion of the record that cannot be transcribed may be
           replaced by stipulation or agreement of the parties; and, if not

       (3) whether that portion of the record that cannot be transcribed or
           replaced is necessary to disposition of this appeal.



       Should the trial court determine that any missing portions of the record can be

transcribed or that the parties agree to replace by agreement, that information should be

provided to the Clerk of this Court as soon as is practicable. In that event, the reporter’s

record, as resolved by the trial court, shall be due to be filed in this Court on or before

August 4, 2014.


       Should the trial court determine that there are any missing portions of the record

that cannot be transcribed and the parties cannot agree to replace by agreement, then

the trial court shall execute findings of fact and conclusions of law and shall cause its

findings, conclusions, and any necessary orders to be included in a supplemental

clerk’s record to be filed with the Clerk of this Court on or before August 4, 2014.


       It is so ordered.


                                                 Per Curiam




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