Singer, Thomas Benton v. State

Opinion

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REVERSE and REMAND; Opinion issued January 16, 2013.

In The QCourt of ~pea~ jfiftb J}i~tid of ~exa~ at J}alla~

No. 05-10-00892-CR

THOMAS BENTON SINGER, Appellant

v. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 5 Dallas County, Texas Trial Court Cause No. MB07-49876-F

MEMORANDUM OPINION Before Justices O'Neill, FitzGerald, and Lang-Miers Opinion by Justice Justice O'Neill

Appellant Thomas Benton Singer appeals his conviction for driving while intoxicated

(DWI). In a single issue, appellant contends he is entitled to a new trial because part of the

record has been lost or destroyed. For the following reasons, we reverse appellant's conviction

and remand for a new trial.

Appellant filed a pretrial motion to suppress seeking suppression of all evidence obtained

as a result of his warrantless DWI stop. Following an evidentiary hearing, the trial court denied

appellant's motion to suppress. The trial court entered fmdings of fact and conclusions of law to

support its denial of the motion. Appellant subsequently pleaded guilty to the indictment 1 pursuant to a plea bargain agreement. The trial court certified appellant's right to appeal rulings

raised by written motion and ruled on before trial. ~ppellant appealed the trial court's ruling on

the motion to suppress and timely requested the reporter's record from the hearing on the motion

to suppress. However, no such record was ever filed.

In a single issue, appellant contends he is entitled to a new trial because the reporter's

record was lost or destroyed through no fault of his own. Texas Rule of Appellate Procedure

34.6(f) provides that an appellant is entitled to a new trial (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; (3) if the

lost or destroyed record is necessary to the appeal's resolution; and (4) if the lost or destroyed

record cannot be replaced by agreement of the parties. TEx. R. APP. P. 34.6(f).

When the court reporter failed to file the reporter's record, we abated this appeal to allow

the trial court to conduct a hearing to determine why no reporter's record had been filed. The

trial court held a hearing in accordance with our order. At the hearing, the court reporter testified

she received a request for the reporter's record and that, after a diligent search, she could not

locate the record. The trial court determined the notes from the hearing were not available and

cannot be transcribed. We reinstated the appeal, adopted the trial court's fmdings, and

concluded there would be no reporter's record in this appeal.

According to the State, no reporter's record is necessary for this Court to resolve the

appeal because the only issue appellant is permitted to appeal is the order on the motion to

suppress and the trial court's fmdings of fact and conclusions of law are alone sufficient to

enable this Court to review that order. The State then outlines the trial court's fmdings of fact

and asserts the fmdings support the trial court's ruling. The State's argument ignores the

2 requirement that the trial court's fmdings of fact be supported by the record. See Miller v. State,

_ S.W.3d _ , 2012 WL 5869416, * 6 (Tex. Crirn. App. 2012). In particular, an appellant is

permitted to challenge a suppression ruling by showing the trial court's fact fmdings are not

supported by the record. See id. Without a record of the hearing on the motion to suppress, it is

impossible for appellant to make such a challenge or for this Court to review the trial court's

ruling. Because we conclude a statement of facts is necessary to our resolution of this appeal, we

reverse the trial court's judgment and remand for a new trial.

Do Not Publish TEx. R. APP. P. 47

100892F. U05

3 Qiourt of Appeals lf.ifth, 1ilistrid of

Thomas Benton Singer, Appellant On Appeal from the County Criminal Court No. 5, Dallas County, Texas No. 05-10-00892-CR V. Trial Court Cause No. MB0?-49876-F. Opinion delivered by Justice O'Neill. The State of Tex~, Appellee Justices FitzGerald and Lang-Miers participating.

Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

~ th Judgment entered this 16 day of January, 2013.