Joe Cardona v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00690-CR NO. 03-13-00691-CR

Joe Cardona, Appellant

v.

The State of Texas, Appellee

FROM DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NOS. D-1-DC-10-202665-A, D-1-DC-10-202666, HONORABLE KAREN SAGE, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Appellant seeks to appeal the trial court’s denial of his writ of habeas corpus. The

reporter’s record in these causes was originally due on November 7, 2013. On December 10, 2013,

we notified the court reporter for the 299th District Court, Angela Chambers, that the record was

overdue. On December 16, Chambers notified the Court that another court reporter, Gene Lee, had

transcribed portions of the proceedings and that she needed additional time to coordinate with Lee

and file the record. Subsequently, Chambers informed the Court that she had been unable to locate

Lee and that the telephone numbers and other contact information she had for him were no longer

working. According to Chambers, she has left numerous messages for Lee at a telephone number given to her by Lee’s former employer, but still has not been able to reach him. To date, the

reporter’s record has not been filed.

Under rule 34.6(f) of the rules of appellate procedure, an appellant is entitled to a new

trial if he timely requested a reporter’s record but a significant portion of the record has been lost or

destroyed through no fault of the appellant’s and if the lost or destroyed portion is necessary to the

resolution of the appeal and cannot be replaced. See Tex. R. App. P. 34.6(f). Accordingly, we abate

this appeal and remand this case to the trial court. The trial court is ordered to hold a hearing to

determine: (1) whether a significant portion of the record has been lost or destroyed, and, if so,

whether a new trial is warranted under Rule 34.6(f), or (2) if the record has not been lost or

destroyed, a reasonable time period in which the reporter’s record can be prepared and filed in this

Court. The trial court shall make appropriate findings of fact and conclusions of law with regard

to these issues.

The district clerk shall prepare a supplemental clerk’s record containing the trial

court’s findings of fact and conclusions of law as well as any orders signed by the trial court. In

addition, the court reporter shall prepare a supplemental reporter’s record containing a transcription

of the hearing. These supplemental records shall be forwarded to the Clerk of this Court no later

than May 26, 2014.

Before Justices Puryear, Goodwin, and Field

Abated and Remanded

Filed: April 25, 2014

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