Frank Garcia Jr. v. State

• Court: Court of Appeals of Texas
• Decided: July 13, 2001
• Docket: 07-00-00116-CR
• Status: Published

Opinion

NO. 07-00-0116-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 13, 2001

______________________________

FRANCISCO GARCIA, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 242 ND DISTRICT COURT OF HALE COUNTY;

NO. B12033-9504; HONORABLE ED SELF, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON ABATEMENT AND REMAND

Appellant Francisco Garcia, Jr. was convicted of capital murder and injury to a child and on November 3, 1999, was sentenced to confinement for life in the Institutional Division of the Department of Criminal Justice on the first charge and 99 years confinement on the second charge.  Appellant timely perfected his appeal, and the clerk’s record was filed on March 6, 2000.  The reporter’s record was thus due to be filed on April 3, 2000.

The court reporter, Jerry K. Bratcher, requested and was granted four motions for extension of time to file the reporter’s record, with the last one requiring the record to be filed on January 9, 2001.  By letter dated January 17, 2001, he notified this court of his retirement and certain medical conditions necessitating additional delay in his preparation of the reporter’s record.  Then, by letter dated April 10, 2001, Bratcher provided this court with a status report of pending appeals and his intent to have the record in this appeal filed prior to a surgical procedure scheduled for June 18, 2001.  To date, however, the reporter’s record has not been filed, and neither a reasonable explanation for the delay nor any estimate as to when we may expect to receive the reporter’s record has been presented to this court.    

The trial court and an appellate court are jointly responsible for ensuring that an appellate record is filed.  Tex. R. App. P. 35.3(c).  Among other duties, the trial court must “help ensure that the reporter’s work is timely accomplished by setting work priorities” and may appoint a deputy reporter when the official court reporter is unable to perform the duties.  Tex. R. App. P. 13.3 and 13.5.  Thus, because Bratcher is now retired, we abate this appeal and remand this cause to the 242 nd District Court of Hale County for further proceedings.  

Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine:

(1) whether due to poor health or other reasons, Jerry K. Bratcher is unable to prepare and file the reporter’s record within 30 days from the date of hearing; or

(2) whether circumstances require the trial court to direct the present reporter

to prepare the record from the notes and materials of Jerry K. Bratcher; or

(3) whether the trial court should appoint a deputy reporter to prepare and file the reporter’s record within 30 days from the date of the hearing; and

(4) finally, the trial court shall make such orders as in its discretion are appropriate to facilitate the prompt filing of a reporter’s record no later than 30 days from the date of the abatement hearing.

The trial court shall cause the hearing to be transcribed and shall make findings of fact, conclusions of law, and such orders as necessary regarding the aforementioned issues and cause its findings and conclusions to be included in a supplemental clerk’s record.  A supplemental reporter’s record of the hearing shall also be included in the appellate record.  Finally, the trial court shall file the supplemental clerk’s record and the supplemental reporter’s record with the clerk of this court within 30 days from the date of this order.

It is so ordered.

Per Curiam

Do not publish.