                                NO. 12-08-00357-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

RAY CHARLES HAWKINS,                             '           APPEAL FROM THE 114TH
APPELLANT

V.                                               '           JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                         '           SMITH COUNTY, TEXAS


                                  MEMORANDUM OPINION
       Ray Charles Hawkins appeals from his conviction for indecency with a child. In one
issue, Appellant argues that he should be granted a new trial because the reporter‟s record for his
trial is unavailable. We reverse and remand for a new trial.


                                          BACKGROUND
       Appellant was convicted of indecency with a child in September 1993 and was sentenced
to imprisonment for twenty years. Appellant attempted to appeal his conviction in 1994, but he
did not timely file his notice of appeal, and this court dismissed his appeal. See Hawkins v. State,
No. 12-94-00028-CR (Tex. App.–Tyler Feb. 17, 1994, no pet.) (per curiam) (not designated for
publication). More than ten years later, Appellant applied for a writ of habeas corpus from the
court of criminal appeals alleging that he received ineffective assistance of counsel and seeking an
out of time appeal. See Ex parte Hawkins, No. AP-75,521 (Tex. Crim. App. Oct. 4, 2006) (per
curiam) (unpublished). The court of criminal appeals granted relief and allowed Appellant to file
an out of time appeal. Id.
       Once again, Appellant filed notice of appeal. However, his attorney did not file a required
certification from the trial court, and we dismissed his appeal. See Hawkins v. State, No.

                                                 1
12-06-00386-CR, 2007 Tex. App. LEXIS 682 (Tex. App.–Tyler Jan. 31, 2007, no pet.) (per
curiam) (mem. op., not designated for publication). Appellant again petitioned the court of
criminal appeals for relief asserting that his appellate counsel had provided ineffective assistance
of counsel.    The court granted relief, and this appeal followed.          Ex parte Hawkins, No.
AP-75,957, 2008 Tex. Crim. App. Unpub. LEXIS 504 (Tex. Crim. App. July 2, 2008) (per curiam)
(unpublished).
        After it became apparent that there was a problem with obtaining the record, this court
directed the trial court to hold a hearing on the availability of the court reporter‟s record. The
court held a hearing and determined that the record of the guilt/innocence portion of the trial could
not be produced. It is not clear from the record what happened to the notes or recordings.
According to the court reporter who regularly reported the proceedings in the trial court, another
reporter substituted for him during the guilt/innocence phase of the jury trial in this case. That
reporter, by an affidavit filed in this case, said that he had no notes or records that related to this
trial and that he “believe[d]” that he “actually reported” in a different court that week.


                                       REPORTER’S RECORD
        In one issue, Appellant argues that he cannot effectively appeal his conviction because
there is no court reporter‟s record. Accordingly, he argues he is entitled to a new trial.
        A defendant is entitled to a new trial if he has timely requested a reporter‟s record and,
without his fault, a significant portion of the court reporter‟s notes and record are lost or destroyed,
the lost or destroyed portions are necessary to the appeal‟s resolution, and they cannot be replaced
by agreement of the parties or by other means. TEX. R. APP. P. 34.6(f). The parties agree that the
transcript of the jury trial is lost and that it cannot be replaced by agreement. By virtue of the
court of criminal appeals decision resetting the appellate timetable in this case, Appellant‟s request
for a reporter‟s record was timely. See Hawkins, 2008 Tex. Crim. App. Unpub. LEXIS 504, at
*1–2 (“All time limits shall be calculated as if the sentence had been imposed on the date on which
the mandate of this Court issues.”).
The State’s Arguments
        The State asserts that Appellant is not entitled to a new trial because the record is not
necessary to the resolution of the appeal. Additionally, the State argues that Appellant was not
diligent about seeking his appeal. Accordingly, pursuant to rule 34.6 and the equitable doctrine of

                                                   2
laches, the State argues that Appellant‟s delay in bringing this appeal precludes relief.
         The arguments as to laches and Appellant‟s fault are predicated on the delay between the
dismissal of Appellant‟s appeal in 1994 and his attempt to seek an out of time appeal in 2006.
The trial court found that Appellant did not timely file his first notice of appeal or request for a
record. In addition, the trial court found that Appellant had not done anything from 1994 to 2006
to attempt to obtain a record.1 The trial court found that the loss of the record was due in part to
Appellant‟s failure to timely request the record or to prosecute his appeal.
Laches and Fault
         Prior to the adoption of rule 34.6, or its predecessor, rule 50(e), the common law rule for
determining when a new trial should be granted included the laches doctrine. See, e.g., Dunn v.
State, 733 S.W.2d 212, 215 (Tex. Crim. App. 1987) (quoting Timmons v. State, 586 S.W.2d 509,
512 (Tex. Crim. App. 1979)). Specifically, an appellant was required to show that he acted with
due diligence and that the failure to file a record was not due to his or his counsel‟s negligence,
laches, or other fault. Dunn, 733 S.W.2d at 215.
         The current rule is slightly different. Rule 34.6(f) requires that a request for the record be
timely and also that the loss of the record have occurred without an appellant having “fault.” 2
Most often the “fault” provision is invoked when an appellant effectively waives preparation of the
record. See, e.g., Cheek v. State, 65 S.W.3d 728, 730 (Tex. App.–Waco 2001, no pet.) (defendant
at fault because he did not request or pay for a transcription of the necessary record). At least one
court has found an appellant at fault in a case where an out of time appeal was granted. See
Branch v. State, No. 03-07-00118-CR, 2008 Tex. App. LEXIS 3569, at *4 n.1, 16 (Tex.
App.–Austin May 16, 2008, pet. ref‟d) (mem. op., not designated for publication). In that case,
the appellant‟s actions were closer to a waiver in that he was a fugitive for many years and his
delay in seeking an appeal caused the clerk to destroy the record because fifteen years had passed
since the trial. Id. at *15–16; see also TEX. R. APP. P. 13.6 (allowing clerk to destroy notes or
recordings of proceedings after fifteen years).               Neither situation is presented in this case.

         1
           At a hearing on one of his applications for writ of habeas corpus, Appellant testified that he had been
waiting to hear from his attorney during much of that time period. Neither of the hearings on Appellant‟s writs of
habeas corpus were before the trial court when it heard evidence about the state of the record. Furthermore, the judge
who held the hearing about the record was not the same judge who heard the trial or conducted the hearings on
Appellant‟s applications for writs of habeas corpus.
         2
           See also Melendez v. State, 936 S.W.2d 287, 288 n.2 (Tex. Crim. App. 1996) (tracing changes in this area
of the law).

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Appellant was not a fugitive, and his request for the record was within fifteen years of the date of
his sentencing.3
         The Branch decision cuts against Appellant‟s argument that he cannot have “fault” when
the court of criminal appeals has granted an out of time appeal. However, courts that have
considered the scope of relief provided when the court of criminal appeals grants an out of time
appeal have treated the granting of an out of time appeal as a resetting of all time considerations.
As the court observed in Duran v. State, 868 S.W.2d 879, 882 (Tex. App.–El Paso 1993, pet.
ref‟d), it would be of little use for the court of criminal appeals to return an appellant “to the point
in time in which he can give notice of appeal and then allow the absent statement of facts to bring
that process to a halt.” See also White v. State, 916 S.W.2d 78, 81-82 (Tex. App.–Houston [1st
Dist.] 1996, pet. ref'd).4 Furthermore, the court of criminal appeals has held that the language
used in its opinions granting out of time appeals should be broadly construed. See Mestas v.
State, 214 S.W.3d 1, 4 (Tex. Crim. App. 2007). On the other hand, rule 34.6 separates the
consideration of fault from the issue of timeliness. As the court held in Branch, a request can be,
at once, timely yet too late. Therefore, we must determine whether Appellant is at fault and
whether the laches doctrine precludes relief.
         The “fault” language contained in rule 34.6 is similar to the common law laches doctrine
adopted by the court of criminal appeals for postconviction collateral attacks on a conviction. See
Ex parte Carrio, 992 S.W.2d 486, 487 (Tex. Crim. App. 1999). Even if rule 34.6 did not supplant
the laches doctrine, we conclude that the State may not invoke it successfully here. First, the State
concedes that it raised the issue of laches when it opposed each of Appellant‟s applications for writ
of habeas corpus.5 Accordingly, we think it reasonable to conclude that the court of criminal
appeals decided this issue against the State‟s position when it granted relief two times. See, e.g.,

         3
         Appellant was sentenced in October 1993. A request for the record was made in 2006 and again in
September 2008.
         4
            See also Banks v. State, Nos. 05-05-01050-CR, 05-05-01051-CR, 05-05-01052-CR, 05-05-01053-CR,
05-05-01054-CR, 05-05-01055-CR, 05-05-01056-CR, 2006 Tex. App. LEXIS 6749, at *3–5 (Tex. App.–Dallas
July 31, 2006) (mem. op., not designated for publication), rev’d other grounds, Banks v. State, PD-1420-06,
PD-1421-06, PD-1422-06, PD-1423-06, PD-1424-06, PD-1425-06, & PD-1426-06, 2008 Tex. Crim. App. Unpub.
LEXIS 454 (Tex. Crim. App. 2008) (unpublished). In Banks, the State did not argue that the appellant was at fault
for the delay in requesting the record, but the court held that the delay was not the appellant‟s fault because his request
was timely pursuant to grant of out of time appeal. Banks, 2006 Tex. App. LEXIS 6749, at *3–5.
         5
           On page 4 of its brief, the State writes, “In each of the habeas and appeals hearings held, the State objected
that the Doctrine of Latches [sic] was implicated by the facts of this case.”


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Harris v. State, 790 S.W.2d 568, 579 (Tex. Crim. App. 1989) (“Under the doctrine of „the law of
the case,‟ where determinations as to questions of law have already been made on a prior appeal to
a court of the last resort, those determinations will be held to govern the case throughout all of its
subsequent stages, including a retrial and a subsequent appeal.”); but see Ex parte Steptoe, 132
S.W.3d 434, 435 (Tex. Crim. App. 2004) (Price, J. concurring) (“Generally we do not look behind
the request for an out-of-time appeal or out-of-time petition for discretionary review to determine
whether we should grant relief.”).
         Even if the court of criminal appeals did not reach that issue–the parties did not know that
the record was lost when Appellant sought habeas relief–the State must make a particularized
showing of prejudice. In other words, the State must show that prejudice was caused by
Appellant‟s delay. See Carrio, 992 S.W.2d at 488. The State cannot do this here. The State
argues that if Appellant had sought an out of time appeal after his first appeal was dismissed, “the
record of this case would most likely be available for the parties and this Court to review for error.”
We agree that Appellant‟s delay did not improve the situation. And we appreciate the candor of
the State‟s argument. But its statement that the record would “most likely” be available had
Appellant acted sooner is speculation, and the record does not show that Appellant‟s delay caused
the record to be unavailable.
         The mere passage of time, or the length of the delay, is not a determining factor when
considering whether a party may invoke the laches doctrine. Id. Because there is no evidence
showing when the record was lost,6 it is not possible to conclude with any accuracy which period
of delay is responsible for the loss of the record. Finally, given that Appellant was represented by
counsel, two of whom failed to provide effective assistance of counsel, it is difficult to conclude
that he, personally, did not act with reasonable diligence.7
         Similarly, because the record does not show that his delay caused the loss of the record, we
conclude that Appellant is not “at fault” pursuant to rule 34.6. One explicit change adopted in the


         6
            The court reporters do not agree on who reported the trial in this case, and there is no evidence of who, in
fact, reported the trial or when the record was lost.
         7
           We agree with the State that, as a general rule, the trial court‟s findings are entitled to deference. That is so
because the fact finder is the exclusive judge of the credibility of the witnesses and because virtually every fact finding
involves a credibility determination. See Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). The
determinations made here, however, were based on facts that were not disputed. There was no disputed testimony at
the hearing on the state of the record, and the evidence consisted solely of testimony from and affidavits by the court
reporters.

                                                             5
current rule 34.6 is that there is no longer an imputation of fault to an appellant for the actions of
his counsel. The common law rule held an appellant accountable for the actions, or inactions, of
counsel, but rule 34.6 does not. Accordingly, under rule 34.6, the failings of counsel cannot be
imputed to Appellant. Because whatever residual “fault” that Appellant bears for his years of
inaction cannot be connected to the loss of the record, and because his request was within the
fifteen years that the record should have been preserved, we conclude that Appellant was not at
fault for the destruction or loss of the record.
Need for Reporter’s Record
        Finally, the State argues that Appellant has failed to show that the missing portion of the
record is necessary to his appeal. See TEX. R. APP. P. 34.6(f). The trial court found that the
reporter‟s record would be necessary to the resolution of the appeal unless Appellant wished to
appeal only those issues relating to the jury selection or punishment phases of the trial. This
finding is supported by the record, and it does not appear that Appellant wishes to appeal only
those issues relating to the jury selection or punishment phases of the trial.
        The State points out that Appellant was vague when asked at one of the habeas hearings as
to what it was that he wished to appeal. The State asked, “Do you have any idea what kind of
error occurred at your trial that could be raised on appeal?” After an objection and a clarification
of the question, Appellant testified that his attorney would not let him testify at trial, that he had
witnesses who were not called, and that counsel “played sick two or three different times on the
appeal.” These are not claims for which the record is likely to provide much information.
Furthermore, Appellant made no showing at all at the hearing on the availability of the record as to
the areas he wished to appeal.
        But Appellant is represented by counsel, and it is usually the role of counsel to identify
issues to raise on appeal after reviewing the record. In Payne v. State, 802 S.W.2d 686, 687, 689
(Tex. Crim. App. 1990), the court ordered a new trial after the testimony of three witnesses had
been “irretrievably lost.” And in Kirtley v. State, 56 S.W.3d 48, 52 (Tex. Crim. App. 2001), the
court held that the record of the punishment hearing was necessary because the defendant could
raise the issue of ineffective assistance of counsel.
         Here, the record of the entire trial has been lost except for opening statements, the voir
dire examination, and the sentencing hearing. From what we can glean from the record, the trial
in this case was not a mere formality or a summary proceeding. The case was mistried once, and

                                                   6
it related to allegations that Appellant went on a high school campus and sexually assaulted a
young woman. Appellant, apparently, did not confess to the offense, and his defense was in the
nature of an alibi. Accordingly, we conclude that the lost portion of the transcript is necessary for
Appellant‟s appeal. Cf. Routier v. State, 112 S.W.3d 554, 570–71 (Tex. Crim. App. 2003)
(fifty-four pages not necessary for appeal); Tyler v. State, No. 05-05-01378-CR, 2008 Tex. App.
LEXIS 5211, at *9–10 (Tex. App.–Dallas July 15, 2008, pet. ref‟d) (mem. op., not designated for
publication) (transcript of two minute opening statement not necessary for appeal). We sustain
Appellant‟s sole issue.


                                                    DISPOSITION
         Having sustained Appellant‟s sole issue, we reverse and remand for a new trial.



                                                                  SAM GRIFFITH
                                                                       Justice




Opinion delivered February 17, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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