Michael Clint Wallace Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 2, 2022
• Docket: 09-19-00210-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00210-CR __________________

MICHAEL CLINT WALLACE JR., Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 1A District Court Tyler County, Texas Trial Cause No. 13,018 __________________________________________________________________

MEMORANDUM OPINION

Following a trial, a jury convicted Michael Clint Wallace Jr. of continuous

sexual abuse of a child.1 Wallace appealed, claiming he is entitled to a new trial

because significant portions of the court reporter’s record were either lost or

destroyed. Following the appeal, we remanded the proceedings and required the trial

court to conduct several hearings to resolve the dispute over whether the reporter’s

record was irretrievably lost. The trial court issued findings of fact, which support

1 See Tex. Penal Code Ann. § 21.02. 1 Wallace’s claim that a complete record of the proceedings is unavailable to him in

his appeal. The State agrees, explaining significant portions of the reporter’s record

from the trial were lost or destroyed. It acknowledges Wallace is entitled to receive

a new trial.

Under the Texas Rules of Appellate Procedure, the defendant is entitled to a

new trial on proving four things: (1) the defendant timely requested a reporter’s

record; (2) a significant portion of the reporter’s record, without the defendant’s

fault, has been lost or destroyed; (3) the portions of the record that have been lost or

destroyed are necessary to resolving the issues in the appeal; and (4) the portions of

the record that have been lost or destroyed cannot be replaced by the agreement.2

The record shows that in April 2019, a jury convicted Wallace after finding him

guilty of the continuous sexual abuse of a child. The trial court rendered judgment

on the jury’s verdict before Wallace was aware there was a problem with the court

reporter’s reporting of the record.

After the trial court signed the judgment, Wallace requested a complete

reporter’s record of the proceedings in his trial. Because the official reporter the trial

court generally used was unavailable on two of the days of Wallace’s trial, the trial

court had a substitute reporter transcribe the proceedings on those days. When

Wallace asked the substitute reporter to transcribe the proceedings of the two days

2 Tex. R. App. P. 34.6(f). 2 she covered of the guilt-innocence phase of his trial, she advised the Court she could

not provide him or the Court with a certifiable transcript of that portion of the

proceedings because the machine she used on those days had malfunctioned, and

because the files created on the machine on those days were lost.

In response to the letter, as required by Rule 34.6(f), we abated the

proceedings so the trial court could determine whether a significant portion of the

reporter’s record had been lost or destroyed.3 After conducting several evidentiary

hearings, the trial court found that Wallace was entitled to a new trial. Thereafter,

we decided the trial court had reached its conclusion prematurely because the

evidence presented to the trial court in those hearings did not prove the records had

been irretrievably lost. We explained that before the trial court could find the records

were irretrievably lost, the evidence would need to show that another reporter could

not use the substitute reporter’s records (including any audio recordings) to create a

transcript that could be certified for the appeal.4

Accordingly, we abated the proceedings again, instructing the trial court to

appoint a reporter to allow another reporter time to evaluate the substitute reporter’s

records and any audio recordings. After evaluating those materials, the other reporter

3 Id. 4 Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004) (“A court reporter’s notes and records, or portions thereof, can be considered ‘lost’ only if the missing portions of the appellate record are irretrievable.”). 3 was to provide the trial court with a professional opinion regarding whether the

available records that existed could still be used to create a transcript from which an

accurate and certifiable record could be created as a substitute for the missing

portions of the record in Wallace’s appeal. Although the trial court did so, the

reporter that examined the information that was available filed an affidavit stating

she could not use the remaining files and recordings to create a transcript that she

could certify as an accurate substitute for the missing records in the appeal. A

separate court reporter, who Wallace retained, provided an affidavit reaching

essentially the same conclusion.

After the reporters filed affidavits, the trial court held another hearing. In that

hearing, the attorney for the State and the attorney for Wallace agreed that substantial

portions of the substitute reporter’s record, portions material to the appeal, have been

lost or destroyed. The prosecutor also stated the affidavits reflect “there are no

decipherable stenographic notes” and that “the transcript that was previously

produced by the [substitute reporter] was [not] actually created by notes.” And the

prosecutor concluded “the record is irretrievable and, therefore, lost or destroyed

under Texas law.” At the conclusion of the hearing, the trial court found Wallace

was entitled to a new trial under the requirements of Rule 34.6(f).

Having reviewed the record, we agree significant portions of the reporter’s

record have either been lost or destroyed, without Wallace’s fault. The parties have

4 not agreed to replace the lost portions of the record by agreement. Since Wallace

challenges whether sufficient evidence supports his conviction, a complete transcript

of the evidence is necessary to resolve the issues relevant to his appeal.5

Accordingly, we reverse the trial court’s judgment (a judgment it rendered

before recognizing the reporter’s record was lost) and we remand the case to the trial

court so that it may conduct a new trial.

REVERSED AND REMANDED.

_________________________ HOLLIS HORTON Justice

Submitted on June 1, 2021 Opinion Delivered March 2, 2022 Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

5 See Gavrel v. Rodriguez, 225 S.W.3d 758, 763 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (concluding that, in the absence of a complete record, “it is impossible to review all the evidence presented to the jury or to apply the appropriate evidentiary sufficiency standard of review”). 5