Opinion
12-23-00204-CV
09-26-2023
MELISSA BROWN, APPELLANT v. THE STATE OF TEXAS AND TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES, APPELLEES
APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
ORDER
Melissa Brown appeals from an order of dismissal signed on July 10, 2023. The reporter's record was originally due on September 8, 2023. On September 22, the Clerk of this Court notified Reporter Christy Humphries that the reporter's record was past due and gave Humphries until October 9 to file the record or request an extension. On September 22, Humphries sent a letter to this Court advising that she was on vacation when the hearing in this case was held, and that Reporter Beverly Dixon worked that day. However, upon contacting Dixon, Humphries learned that Dixon cannot locate the record from the hearing. It is this Court's understanding that only one hearing occurred on August 3, 2021.
Dixon is no longer a certified court reporter. This appeal is not the only one in which this Court addressed lost and/or erroneous records prepared by Dixon. See Lazy W Conservation Dist. v. Jones, No. 12-22-00168-CV, 2023 WL 327805 (Tex. App.-Tyler Jan. 19, 2023, no pet.) (mem. op.); see also Warren v. State, Nos. 12-22-00005-CR & 12-22-00006-CR, 2022 WL 4394559 (Tex. App.-Tyler Sept. 22, 2022, no pet.) (mem. op., not designated for publication); Walls v. State, No. 12-22-00070-CR, 2022 WL 3646978 (Tex. App.-Tyler Aug. 24, 2022, pet. ref'd) (mem. op., not designated for publication); Gonzales v. State, Nos. 12-21-00239-CR & 12-21-00240-CR, 2022 WL 3268014 (Tex. App.-Tyler Aug. 10, 2022, no pet.) (mem. op., not designated for publication); Dye v. State, No. 12-21-00187-CR, 2022 WL 2062473 (Tex. App.-Tyler June 8, 2022, no pet.) (mem. op., not designated for publication).
The Texas Rules of Appellate Procedure provide that, when the reporter's record is lost or destroyed, 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;
(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). "By written stipulation filed with the trial court clerk, the parties may agree on the contents of the appellate record." Tex.R.App.P. 34.2. "An agreed record will be presumed to contain all evidence and filings relevant to the appeal." Id
Accordingly, It is ORDERED that the Honorable Debra E. Gunter shall, in accordance with Texas Rule of Appellate Procedure 34.6, conduct a hearing, on or before October 13, 2023, and make written findings of fact as to whether a portion of the record has been lost or destroyed. If the trial court finds the record to be lost or destroyed, the trial court shall determine whether (1) without Appellant's fault, a significant portion of the record has been lost or destroyed and, if so, whether the missing portion of the record is necessary to the appeal's resolution, (2) the missing portion of the record can be replaced by stipulation or agreement of the parties, and (3) Appellant is entitled to a new trial under Rule 34.6(f).
It is FURTHER ORDERED that a supplemental clerk's record including the trial court's written findings, along with any supporting documentation and orders, be certified to this Court on or before October 20, 2023
It is FURTHER ORDERED that the court reporter file a reporter's record of the hearing on or before October 20, 2023
WITNESS the Honorable Brian Hoyle, Justice of the Court of Appeals, 12th Court of Appeals District of Texas, at Tyler.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT.