State v. Raul Becerra Castorena

• Court: Court of Appeals of Texas
• Decided: January 14, 2015
• Docket: 04-14-00671-CR
• Status: Published

Opinion

Raul Becerra

Fourth Court of Appeals San Antonio, Texas January 14, 2015

No. 04-14-00671-CR

The STATE of Texas, Appellant

v.

Raul Becerra CASTORENA, Appellee

From the 63rd Judicial District Court, Val Verde County, Texas Trial Court No. 11297CR The Honorable Enrique Fernandez, Judge Presiding

ORDER

Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice

The State of Texas appeals the trial court’s September 3, 2014, order granting Raul Becerra Castorena’s motion to quash the indictment. The docket sheet in the clerk’s record reflects that the trial court heard the motion on July 26, 2012, and that the court took the “motion under advisement to review authorities and arguments presented by counsel.” The State of Texas has advised this court that it requested a reporter’s record of that hearing from John Price, the official court reporter of the 63rd Judicial District Court of Val Verde County, to be filed in this appeal.

On December 10, 2014, Mr. Price notified this court that he was away from the court on the day of the hearing on the motion to quash, and that he had been unable to ascertain whether a record was made of the proceedings. He stated that the county auditor’s office had no record of paying a visiting substitute reporter, but speculated that the official reporter for the 83rd Judicial District Court may have reported the hearing. The trial court subsequently notified this court that the former official court reporter for the 83rd Judicial District Court, Patricia Phelps, was probably the substitute court reporter who reported the proceeding. The trial court further stated that it had been unsuccessful in its attempts to contact Phelps, but would continue its efforts to locate her. In order to proceed with this appeal, this court must determine whether the hearing was reported, whether the record is lost or destroyed and not capable of being replaced, and whether the record is necessary to the resolution of this appeal. See TEX. R. APP. P. 34.6(f). We therefore abate this appeal and remand the case to the trial court to make the necessary factual determinations.

We order the trial court to hold a hearing by February 13, 2015 and to make findings of fact addressing the following questions:

1) Whether the July 26, 2012 hearing on Castorena’s motion to quash was reported; 2) Whether the State of Texas timely requested a reporter’s record; 3) If the hearing was reported, what is the name and last known contact information of the court reporter; 4) Whether the court reporter’s notes and records have been lost or destroyed; 5) Whether the lost or destroyed reporter’s record can be replaced by agreement of the parties; 6) Whether any testimony was taken and whether any exhibits were offered or admitted into evidence at the hearing; 7) Whether the original exhibits, if any, have been lost or destroyed; and 8) Whether any lost or destroyed exhibits may 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 exhibits, if any.

We order the trial court to require the presence of trial counsel for the State and for Castorena at the hearing and to make all reasonable efforts to secure the attendance of Patricia Phelps. We further order the trial court clerk to file the court’s findings of fact in a supplemental clerk’s record within five days of the hearing.

_________________________________ Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 14th day of January, 2015.

___________________________________ Keith E. Hottle Clerk of Court