Fabian Douglas Castaneda v. State

• Court: Court of Appeals of Texas
• Decided: June 25, 2015
• Docket: 08-12-00167-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS §

FABIAN DOUGLAS CASTANEDA, § No. 08-12-00167-CR

Appellant, § Appeal from the

§ 83rd District Court

THE STATE OF TEXAS § of Pecos County, Texas

State. § (TC# P-2377-83-CR)

§

ORDER

On June 22, 2015, the Court filed the supplemental clerk’s record as requested in our

order issued on May 8, 2015. Further, the Court filed the supplemental reporter’s record from

the hearing conducted by the trial court pursuant to that same order. The purpose of the hearing

was to determine whether the court reporter’s notes from a pre-trial hearing held in 2000 have

been lost, and if they have, whether Appellant may be entitled to a new trial pursuant to

TEX.R.APP.P. 34.6(f). At our request, the trial court made findings of fact and conclusions of

law related to those issues. The Court has reviewed the trial court’s findings and conclusions as

well as the transcription of the hearing conducted by the trial court. The record of the hearing

supports the trial court’s fact findings.

The record reflects that the court reporter’s notes from the June 13, 2000 pre-trial hearing

have been lost. Appellant did not request the court reporter to prepare the transcription of that hearing within three years and he did not ask the court reporter to preserve the notes for more

than three years. It is undisputed that Appellant failed to appear in court on the trial date of July

10, 2000 and he remained at large until he was rearrested in August of 2010. William Briggs,,

the court reporter who transcribed the June 2000 pre-trial hearing, put the notes of the hearing in

an envelope and filed it in his office at the 83rd District Court. Mr. Briggs testified that if he had

been requested to preserve his notes he would have filed them with the district clerk, but no such

request was ever made. Mr. Briggs left employment with the 83rd District Court sometime after

the June 2000 hearing but he was unsure of the exact date. He testified that he only worked for

the Judge Carl Pendergrass for only a couple of years after he took office. We take judicial

notice of official records reflecting that Judge Pendergrass was appointed to serve as the judge of

the 83rd District Court on October 29, 1999. Based on the record, it appears that Mr. Briggs left

employment as the court reporter in late 2001. Appellant made a request for preparation of the

reporter’s record, including pre-trial hearings, in 2012 after his trial. Mr. Briggs was not

contacted by Appellant’s attorney regarding the record of the pre-trial hearing in question until

2015. We find that Appellant is not entitled to a new trial under TEX.R.APP.P. 34.6(f) because

Appellant did not timely request preparation of this portion of the reporter’s record, and because

the record does not show that this portion of the record was lost without the fault of Appellant.

The appeal is reinstated and Appellant’s third motion for extension of time to file the

brief is GRANTED. Appellant’s brief is now due to be filed no later than July 25, 2015.

IT IS SO ORDERED this 25th day of June, 2015.

PER CURIAM

Before McClure, C.J., Rodriguez and Hughes, JJ.