Robert Howard Green v. State

Opinion

Order entered February 27, 2020

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-18-01068-CR No. 05-18-01069-CR

ROBERT HOWARD GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F16-76425-T & F16-76426-T

ORDER

Before the Court is appellant’s February 18, 2020 motion for clarification of

the Court’s statement, “Any complaints or arguments about the missing portions of

the reporter’s record may be raised in the parties’ briefs.” We GRANT appellant’s

motion as follows.

When the reporter’s record was due in these appeals, the Court was notified

that a portion of the record appeared to be lost. We abated the appeals for a

hearing. After careful consideration of affidavits and live testimony, the trial court found that a portion of the reporter’s record was indeed lost and that appellant was

not at fault, having timely requested the record. The lost record concerned the

testimony of two State’s witnesses on the morning of August 30, 2018: the

testimony of Dr. Kristen Reeder with the REACH Clinic at Children’s Medical

Center and a portion of the testimony of Detective Blayne Burgess with the Dallas

Police Department. The parties could not agree on reconstruction or replacement

of the lost portion of the record. The trial court found it could not determine what

constituted an accurate copy of the missing record, whether or not the lost portion

of the record did or did not constitute a significant portion of the reporter’s record,

or whether the lost portion of the reporter’s record is or is not necessary to the

resolution of the appeal. We adopted these findings and ordered the remainder of

the reporter’s record filed along with the briefs of the parties. We noted that any

“complaints or arguments about the missing portions of the reporter’s record may

be raised in the parties’ briefs.” Seven volumes of reporter’s record were filed

after which appellant filed his motion for clarification.

Rule 34.6(f) provides that an appellant is entitled to a new trial under the

following circumstances:

(1) if the appellant has timely requested a reporter’s record;

(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or—if the proceedings were electronically recorded—a significant portion of the recording has been lost or destroyed or is inaudible;

–2– (3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and

(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.

TEX. R. APP. P. 34.6(f). The rule applies whether the parties are faced with the loss

or destruction of the entire record or only a portion of the record. Routier v. State,

112 S.W.3d 554, 570 (Tex. Crim. App. 2003). And it specifies that a new trial may

be granted only if the missing portion of the record “is necessary to the appeal’s

resolution.” Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999). Thus, if

the missing portion of the record is not necessary to the appeal’s resolution, the

loss of that portion of the record is harmless under the rule and a new trial is not

required. Id.; see Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013)

(noting that the third requirement—that the missing record be necessary to the

appeal—was meant to mitigate against the harshness of a rule that might require a

new trial even when no error actually occurred in the proceedings).

In these appeals, the trial court found it “cannot resolve the issue of whether

or not the lost portion of the record does or does not constitute a significant portion

of the reporter’s record and therefore cannot determine whether the lost portion of

the reporter’s record is or is not necessary to the resolution of the appeal.” We

–3– adopted that finding. Thus, to date neither the trial court nor this Court has

concluded or found that the lost portion of the reporter’s record is necessary to the

appeals.

In his brief, appellant may raise whatever issues he deems appropriate,

including but not limited to whether the lost portion of the reporter’s record is

necessary to his appeal.

/s/ ROBERT D. BURNS, III CHIEF JUSTICE

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