Opinion
NO. 01-14-00061-CR
08-24-2017
BARTOLO CARDENAS PEREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 13 Harris County, Texas
Trial Court Case No. 1846057
MEMORANDUM OPINION
Appellant, Bartolo Cardenas Perez, was charged by information with the misdemeanor offense of driving while intoxicated. He signed a "Plea of Guilty: Harris County District Attorney's DIVERT Pretrial Intervention" by which he pleaded guilty and "accept[ed] the [State's] offer" of confinement for thirty days and a fine of $750 if he failed to successfully complete the pretrial diversion program. Appellant also signed an agreement to participate in the Harris County District Attorney's DIVERT program, a pretrial intervention program. The State later filed a "Motion to Enforce Pretrial Intervention and Enter Plea of Guilty," alleging that appellant had violated several terms of his pretrial diversion agreement. Appellant pleaded "not guilty" to the allegations in the State's motion. After a hearing, the trial court adjudicated appellant guilty of the misdemeanor offense of driving while intoxicated, assessed his punishment at confinement for thirty days and a fine of $750, and certified that he had the right of appeal. Appellant timely filed a notice of appeal.
See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2016).
In the agreement, appellant agreed to specified "Program Conditions" for a period of one year and the State agreed that, "if at the conclusion of the period of diversion, [it] believ[ed]" appellant had complied with the agreement, the State would move to dismiss the proceeding. If the State "believ[ed]" appellant had violated the agreement, the State would file a "Motion to Enforce Pretrial Intervention and Enter Plea of Guilty."
We reverse the trial court's judgment and remand the case for a new trial.
Background
The trial court clerk filed the clerk's record in this Court on February 11, 2014. The reporter's record was due on February 18, 2014. On February 24, 2014, we notified the court reporter, Sondra Humphrey, that the reporter's record had not been filed and ordered her to file the reporter's record no later than March 26, 2014. A reporter's record was not filed.
In the trial court, the Honorable Sherman A. Ross, the former Presiding Judge of the Harris County Criminal Courts at Law, was assigned to hear the proceedings regarding the past due reporter's records taken by Humphrey in this case and eight other cases pending in this Court and the Court of Appeals for the Fourteenth District of Texas. In these cases, the trial court conducted numerous hearings to assist the appellate courts in obtaining the reporter's records. On May 19, 2014, the trial court notified the Clerk of this Court that Humphrey was "working on records in our administrative offices under the supervision of our staff attorney" and after, filing records in four other cases, would start on a fifth case "followed by Perez" and two other cases. At a hearing on June 25, 2014, the trial court admitted into evidence "Court's Exhibit 1," which "consist[ed] of a number of transcripts, total and partial," and included an unedited transcript of "Perez testimony."
See TEX. R. APP. P. 35.3(c) (providing appellate court "may enter any order necessary" to ensure timely filing of appellate record); see also Castillo v. State, 510 S.W.3d 32, 33 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (noting "Judge Ross issued many orders and conducted numerous hearings in an effort to obtain the reporter's records in these cases").
On February 25, 2015, we abated this appeal and remanded the case pending a final trial court hearing and the filing of the trial court's findings and recommendations regarding preparation of the reporter's record. On February 27, 2015, the trial court signed "Partial Findings of Fact," stating that, at a February 26, 2015 hearing, court reporter Brenna DeMoss "testified that she found no audio or stenographic files relating to the trial of this case among the files and notes she reviewed" but that the State had notified the trial court of the State's "belief that an audio file did in fact exist, and may contain a complete record of the proceeding." On March 19, 2015, the trial court signed "Final Findings of Fact and Conclusions of Law." The trial court found, in part:
22. Neither Appellant nor his counsel of record paid, or made satisfactory arrangements with Ms. Humphrey for preparation of her record of the proceedings conducted before the trial court on December 18, 2013. . . .The trial court concluded that Humphrey "was under no legal duty to prepare the reporter's record of the proceedings before the trial court on December 18, 2013."
26. On March 9, 2015, Ms. DeMoss executed an affidavit in which she states that, with the assistance of prosecutors, she was able to locate the notes made by Ms. Humphrey of the December 18, 2013 hearing before Judge Don Smyth. . . .
27. Based on Ms. DeMoss's affidavit, there is a record of the December 13 [sic], 2013 hearing taken by Ms. Humphrey that probably is sufficient for the purposes of this appeal.
28. On March 10, 2015, a member of the Office of County Court Management contacted Deanne Bridwell, the official court reporter of Harris County Criminal Court at Law [N]o. 13, and apprised her of the above facts, and gave her Ms. DeMoss's file in this matter including a CD containing the audio and reporter's notes.
29. Ms. Bridwell will attempt to contact Appellant's counsel, to inform her of the location of the record.
The trial court also found that appellant filed a "Pauper's Oath on Appeal" requesting appointment of counsel and "a free reporter's record," the trial court denied the request, appellant moved for reconsideration, and the trial court denied appellant's motion for reconsideration. According to the findings, appellant filed a notice of appeal of the trial court's orders. See Everett v. State, 91 S.W.3d 386, 386 (Tex. App.—Waco 2002, no pet.) (noting defendant "should perfect a separate appeal when a trial court denies his request for a free appellate record); see, e.g., Ramadan v. State, 89 S.W.3d 744, 747 (Tex. App.—Houston [1st Dist.] 2002, order) (concluding trial court abused discretion in denying defendant's application for record on appeal at state expense). However, the trial court clerk did not send that notice of appeal to the Clerk of this Court. See TEX. R. APP. P. 25.2(e).
Several months later while the case remained abated, the trial court signed an order finding appellant indigent, ordering the court reporter to prepare and file the reporter's record, and appointing counsel to represent appellant on appeal. Appointed counsel requested preparation of a reporter's record that included a complete transcript of the trial court proceedings and "[a]ll exhibits admitted during any proceeding; and all exhibits which were the subject of any offers of proof." We reinstated the appeal and set a deadline for filing the reporter's record. On October 7, 2015, Humphrey notified the Clerk of this Court that appellant had requested a reporter's record and was "appealing as indigent," and she "believ[ed]" she could "file the record by 11-17-15."
On November 9, 2015, court reporter Rene White Moarefi filed a one-volume reporter's record, certifying that it was "a true and correct transcription, to the best of [her] ability, of Court Reporter Sondra Humphrey's notes with audio of the proceedings held as provided to me by the County Criminal Court at Law No. 3." Moarefi also stated that she "did not have the exhibits to reference for spellings, clarifications, and indexing." The reporter's record reflects that the State offered, and the trial court admitted, State's Exhibits 1, 3, 4, 5-A, 5-B, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15; and appellant offered, and the trial court admitted, Defendant's Exhibits 1 and 2. The reporter's record filed in this Court did not include any exhibits.
See Johnson v. State, 151 S.W.3d 193, 195 (Tex. Crim. App. 2004) (citing Routier v. State, 112 S.W.3d 554, 557 (Tex. Crim. App. 2003)) (noting court appointed substitute court reporter to prepare and file record from original court reporter's notes).
Appellant then filed in this Court his "Objections to the Severely Defective Record," asserting, among other things, that (1) the reporter's record did not contain the exhibits offered at trial and counsel was unable to locate them; (2) "[t]he reporter's certification of authenticity of the record [was] equivocal and invalid" and "call[ed] into question the validity and accuracy of the transcript"; (3) appellant's interpreter was "identified only as 'name unknown'"; and (4) transcript notations indicated portions of the recording were "unintelligible," "hard to hear," or "inaudible." According to appellant, "[t]he denotation 'unintelligible' appear[ed] 56 time throughout the 137 page record." Appellant requested that we submit the issues regarding the reporter's record to the trial court to determine whether supplementation and correction of the record was possible.
See TEX. R. APP. P. 34.6(e)(2), (3), (f).
We again abated the appeal. The trial court held a hearing on April 7, 2016, at which Moarefi testified. On July 6, 2016, the trial court held another hearing at which Sylvia Iyoho, the prosecutor at the December 18, 2013 hearing, testified. The trial court indicated that it had "reviewed the actual transcript of the trial" and the court and the parties listened to portions of "the audio" of the December 18, 2013 hearing and reviewed portions that appellant had identified as "unintelligible" or "inaudible." During the hearings, the State offered, and the trial court admitted into evidence for the abatement hearings, State's Exhibits 1, 3, 4, 5A, 5B, 6, 7, 8, 9, 10, 11, 12, and 13 (the "State's Abatement Exhibits"), which the record shows were documents from "the State's file."
In September 2016, a trial court staff attorney located "in a storage room" a folder containing "what purported to be original exhibits from the 12/18/13 hearing." The folder contained documents identified as State's Exhibits 4, 5A, 5B, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15; and Defendant's Exhibits 1, 2, and 3. The folder also contained one page of handwritten notes that stated, in part, "Interpreter-Sandra Tapia" and "post-it notes" stating "State will deliver State's 1-3 to me for hearing" and "witness took w/her" with the numbers 13, 14, and 15 scratched out.
On November 18, 2016, the trial court signed additional "Findings of Fact, Conclusions of Law, and Recommendation." Based on Moarefi's testimony at the April 7, 2016 hearing, the trial court found:
a. [Moarefi] has 30 years of experience working as a certified court reporter and has transcribed audio recordings on many occasions;Based on Iyoho's testimony at the July 6, 2016 hearing, the trial court found:
b. She created the record in this case based on the audio recording and Sondra Humphrey's written notes from trial;
c. Humphrey's notes conflicted with what could be heard on the audio and contained what she believed were errors;
d. [Moarefi] could not hear or understand portions of the audio due to microphone placement or background noise;
e. As a result, she considers the transcript incomplete;
f. Her professional opinion is that the transcript was already reported to the best of her ability and that she would not be able to correct it by further examining the audio recording; and
g. She could not certify that the record is true and correct in this case.
b. The State's Abatement Exhibits approximated the original exhibits, based on [Iyoho's] recollection from copying "most" of the exhibits from the 12/18/13 hearing.
c. During the 12/18/13 hearing, a witness walked off with State's Original Exhibits 1, 3, and 10. Those original exhibits were never returned.
d. At trial, copies of 1, 3, and 10 were introduced as substitutes—over defense counsel's objection.
e. State's Original Exhibit No. 1 was the Defendant's signed DIVERT Program agreement.As to the State's Exhibit 10, the trial court also found that "[t]he prosecutor conducting the 7/6/16 abatement hearing stated that 'we don't know what was State's Exhibit 10.'"
f. Iyoho did not know how State's Abatement Exhibit No. 1 was obtained for the hearing.
g. State's Abatement Exhibit No. 1 was missing a page. She could not remember if the original was also missing that page or what the missing page depicted.
h. State's Original Exhibit No. 10 depicted the actual breath alcohol concentrations at issue in the hearing.
i. Iyoho did not know how State's Abatement Exhibit No. 10 was obtained for the hearing.
j. Witnesses at trial reading from State's Original Exhibit No. 10 described some features of the document differently than what appears in State's Abatement Exhibit No. 10, i.e. the description and location of the logo and the calibration numbers.
k. Due to these discrepancies, the State introduced State's Abatement Exhibit No. 13 as a document purported in the alternative to be a duplicate of State's Original Exhibit No. 10.
l. Iyoho did not recall State's Original Exhibit No. 10 being seven pages long or containing additional photographs, as depicted in State's Abatement Exhibit No. 13.
m. Iyoho did not fully recollect the December 18, 2013 hearing.
The trial court's findings reflect that, at the July 6, 2016 hearing, the trial court and the parties listened "to much of the audio recording" of the December 18, 2013 hearing and "compared it to the transcript in an effort to determine whether the inaudible portions could be corrected." As stated in the trial court's findings:
a. The one-volume transcript contains over 50 instances reported as "unintelligible" or "inaudible."The trial court also found:
b. This Court could decipher some portions deemed unintelligible or inaudible when listening closely to the recording.
c. Other portions could not be heard and understood.
d. Some portions seemed to be missing only one or two words.
e. Other portions seemed to contain more substantial phrases or conversation not able to be understood.
16. Having reviewed the materials related to this case that were found in the storage room on September 15, 2016, this Court observed:
a. The document marked Exhibit 15 is missing a page and contains extensive highlighting[.]
b. The document marked Exhibit 14 is similar, but different than, State's Abatement Exhibits 10 and 13, which purported to be duplicates of State's Original Exhibit 10.
c. According to the reporter's record from the 12/18/13 hearing, only two defense exhibits were introduced.
d. Two post-it notes stating, "State will deliver State's 1 - 3 to me for hearing" and "witness took w/her" with the numbers 13, 14, and 15 scratched-out.
The trial court concluded:
17. The documents located in the storage room were not maintained in Humphrey's personal possession.
a. The facts of this case rebut any presumption that the record is reliable.
b. The parties do not agree that the exhibits found in the storage room are the actual exhibits from the 12/18/13 hearing and remain in the condition in which they were admitted into evidence.
c. Despite the differences listed in [Finding of Fact No. 16] above, and despite the parties' inability to agree on their authenticity, this Court finds that the exhibits located in the storage room are what they purport to be—exhibits admitted under the respective exhibit numbers at the 12/18/13 hearing. It is not reasonable to conclude that the documents came from another case or that the documents were placed in the folder by anyone other than Humphreys [sic].
d. Moarefi transcribed the record from the 12/18/13 hearing to the best of her ability, using all available tools and evidence.
e. It is not possible for Moarefi or any other court reporter to improve the transcription in any meaningful way.
f. Moarefi identified numerous instances, labeled "unintelligible" or "inaudible," that cannot be accurately reproduced by any known means or by agreement of the parties.
g. While in some instances only trivial speech appears incapable of reproduction, in other instances significant events are unreproducible, such as:
i. words in the middle of an objection;
ii. witness testimony involving precise scientific terms, numbers, and measurements;
iii. descriptions of an herbal folk remedy that was the basis for the defense;
iv. comments by defense counsel that could bear on a claim of ineffective assistance of counsel; and
v. arguments by the prosecutor concerning whether strict liability applies to DIVERT contract violations.
On December 8, 2016, the court reporter filed a reporter's record that included the fifteen exhibits located in the storage room, identified as State's Exhibits 4, 5A, 5B, 6 through 9, and 11 through 15; and Defense Exhibits 1 through 3.
19. The many lost and/or unreproducible portions of the reporter's record make it extremely difficult to gauge how important each unreproducible portion is to [appellant's] appeal.
20. Due to Humphrey's failure to properly record and maintain an impartial and accurate record of the proceedings through her notes and audio recordings, the resulting transcript contains so many incomplete portions as to render it unsuitable and unreliable for use in the disposition of a meaningful appeal.
21. The record is wholly incomplete and unreliable; it cannot be meaningfully corrected or supplemented, and such correction and supplementation is necessary to the resolution of the appeal.
22. [Appellant] is not at fault for the deficiencies listed here.
23. [Appellant] is entitled to a new trial.
Discussion
If, through no fault of the appellant, a reporter's record is lost or destroyed, and the portion of the record that is lost or destroyed is necessary to the appeal's resolution and cannot be replaced by agreement of the parties, the appellant is entitled to a new trial. TEX. R. APP. P. 34.6(f); see Castillo v. State, 510 S.W.3d 32, 34 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing TEX. R. APP. P. 34.6(f). However, an incomplete record does not result in an automatic reversal. See Bryant v. State, 464 S.W.3d 99, 101 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Issac v. State, 989 S.W.2d 754, 756 (Tex. Crim. App. 1999)). If the missing portion of a reporter's record is not necessary to the appeal's resolution—and the appellant is not harmed by the incomplete reporter's record—the appellant is not entitled to a new trial. See TEX. R. APP. P. 34.6(f)(3); Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013); Routier v. State, 112 S.W.3d 554, 571-72 (Tex. Crim. App. 2003).
We review cases involving the loss or destruction of the record from the appellant's standpoint and resolve any reasonable doubt in the appellant's favor. Routier, 112 S.W.3d at 570-71. The question of whether a missing portion of the reporter's record is necessary to the appeal's resolution is essentially a harm analysis. Id. at 571 (citation omitted); see Issac, 989 S.W.2d at 757 ("If the missing portion of the record is not necessary to the appeal's resolution, then the loss of that portion of the record is harmless under the rule, and a new trial is not required."); see also Beal v. State, No. 01-12-00896-CR, 2016 WL 1267805, at *3 (Tex. App.—Houston [1st Dist.] Mar. 31, 2016, no pet.) (mem. op., not designated for publication) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)) (reviewing trial court findings of fact for abuse of discretion and conclusions applying the law to facts de novo).
In this Court, the State has filed its "Objections to Trial Court Findings of Fact, Conclusions of Law, and Recommendation" in which it objects to the trial court's findings regarding Moarefi's testimony and asserts that the trial court did not make "definitive rulings," and the court's "written findings of fact and conclusions of law are vague, . . . do not comply with the abatement order," and "are not supported by the record." The State asks that this Court "disregard the trial court's conclusions and hold that appellant has not satisfied his burden to establish that any inaudible portions of the record are necessary to the resolution of the appeal."
The State also filed a motion to reinstate the appeal in which the State contends that the reporter's record of the December 18, 2013 hearing is not necessary to resolution of the appeal because appellant signed a pre-trial diversion agreement and "waived his right to a jury trial and his right to an appeal." Appellant filed his notice of appeal after the trial court signed a judgment of conviction. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); TEX. R. APP. P. 25.2(a), (b). The trial court certified that the case "is not a plea bargain case, and the defendant has the right of appeal." See TEX. R. APP. P. 25.2(a)(2), (d); see also Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006) (concluding rule 25.2(a)(2) does not restrict appeal when defendant appeals from proceeding on motion to adjudicate guilt).
Specifically, as to the trial court's findings regarding Moarefi, the State asserts that they "are mischaracterizations" of her testimony and are not supported by the record. Moarefi testified that she was certified as a court reporter in 1986, has "been freelancing for 30 years," does "some substitute work in court," and "also train[s] on the software that we use for transcribing our transcripts." She further testified that the name of the software is "Case CATalyst," and she transcribes records from the software "all the time" but has not "done criminal cases before."
She explained that, in this case, she "was given the CATalyst job files" of which "[o]ne is a text file, one is a dictionary file, one is also an audio file" that is "synced to the transcript that Ms. Humphrey took down at the time." The transcript or transcription "is literally whatever [she] took down" during the proceedings. According to Moarefi, a reporter "take[s] everything down in shorthand" and "[o]ur computers have steno to text dictionaries," so that the software provides "sort of a simultaneous translation" from the shorthand "into English."
She described the quality of the audio in this case as "okay," "could tell that the microphone was closer to the judge and the witness stand and that the attorneys were clearly . . . further away because they weren't as loud," and did not "notice any technical problems with it." She further testified that "the audio was probably recorded completely" but "[a]s far as [Humphrey's] writing goes, she had some mistakes, she had words that were not there . . . . She had dropped some testimony," which Moarefi "had to type it in from the audio." In other instances, Moarefi noticed that "there were things that [she] was hearing on the audio and [Humphrey] was writing something different" and Moarefi "had to fix that" by "put[ting] in what [she] heard from the audio." According to Moarefi, the audio included "background conversation," which she "figure[ed] out" was the interpreter "actually talking the entire time to [appellant]" and "translating everything."
Moarefi also testified that, in some places, Humphrey "would have untranslated steno as opposed to English and [Moarefi] would have to change that to English but the steno was there but there were times where she either didn't have the steno or she had written something different." Further, Humphrey "ha[d] some bad entries for her translation dictionary" and it "was not in good shape to being with." She also testified that is was not appropriate for a court reporter to write down something different from what would be on the audio.
Moarefi testified that the finished product was "not complete because there were times where I either couldn't hear or I couldn't understand; and since I wasn't there, I . . . didn't get clarification at the time or have somebody repeat something." She explained that "there were times when they were reading from exhibits and I did not have the exhibits." Further, she noted in her record that some exhibits were "not clearly identified." She had asked for the exhibits; however, the record reflects that she did not get them. When asked if should would be able to understand portions described as "inaudible" if she listened to the audio again, Moarefi answered:
I have no idea. I don't think so because I did try to be very careful when I was working on the transcript; and, normally, what we do is we go through with the audio during that kind of first edit and then we always proofread and I was trying to remember over the last couple of
days, I may have even proofread with the audio again to see if I could pick things up after I had gone all the way through it one time because sometimes context later can help me figure out maybe what somebody said earlier. But this was back in August of last year, so I don't remember if I proofread the whole thing with audio or maybe spot checked. But I did go through, of course, the first time for sure with the audio.When asked about her "comfort level with the integrity of this record," she answered:
[O]bviously, there are places where there's unintelligible or inaudible parentheticals; and since I was not there at the original hearing, I don't think there's anything else I can do to fill in those gaps. It's possible that people who were actually there might be able to remember, if they were to go through with the audio, with the transcript, and go, Oh, this is what was said, I can hear it and I remember saying it, something like that. I can't do that. But other than that, I feel good about what I did come up with. You know, everything else that's there, I think I did a good job constructing as accurate of a transcript as I could given the circumstances.She did not know whether "try[ing] to transcribe [the record] just based on the audio, without seeing the text" would be "an accurate transcript" but using only the audio "would be a lot harder." She further testified that she is "never comfortable putting in any kind of inaudible parenthetical" but "didn't have a choice" and "also did not want to guess at something" or "assume anything" and "put an 'inaudible' or 'unintelligible' instead."
She further testified that she could not certify that the transcript was "true and correct" and "basically certify[] to the accuracy of the transcript" because she was not present at the December 18, 2013 hearing. The certification that she used is "an official or a prescribed language" under the "Uniform Format Manual" when "certifying to another reporter's notes." On cross-examination, she testified that the certification used did not "render [the] certification equivocal and invalid" but the language used was what is "provided for these unusual circumstances by which we transcribe for somebody else."
Based on her testimony, the trial court found that Moarefi has thirty years of experience working as a certified court reporter and has transcribed audio recordings on many occasions. Further, because Humphrey's notes contained what Moarefi believed were errors and she "could not hear or understand portions of the audio due to microphone placement or background noise," Moarefi "considers the transcript incomplete." In "[h]er professional opinion," the transcript was "already reported to the best of her ability" and "she would not be able to correct it by further examining the audio recording" and "could not certify that the record is true and correct in this case." We conclude that the evidence supports the trial court's findings about Moarefi and her preparation of the record of the December 18, 2013 hearing from Humphrey's notes and audio recording.
As reflected in the numerous abatement hearing records filed in this appeal, the trial court provided Humphrey with opportunities to provide a reporter's record in this case. After Humphrey's stenographic notes and audio recording were located, Moarefi prepared a record "to the best of her ability." According to Moarefi, the audio quality was "okay" but Humphrey "had dropped some testimony" in her notes and, at other times "was writing something different" from what Moarefi heard on the audio recording. The record she prepared and filed did not include the exhibits and included instances that she reported as "unintelligible" or "inaudible." At the July 6, 2016 hearing, the trial court listened to the audio recording and found that it "could decipher some portions deemed unintelligible or inaudible" but "[o]ther portions could not be heard and understood."
Exhibits were later located "in a storage room" and the trial court found that they "are what they purport to be—exhibits admitted under the respective exhibit numbers at the 12/18/13 hearing." These exhibits, however, do not include the State's Exhibits No. 1, appellant's "signed DIVERT Program agreement"; No. 3, a photograph; and No. 10, which "depicted the actual breath alcohol concentrations at issue in the hearing." As supported by the evidence, the trial court found that "a witness walked off with the State's Original Exhibits 1, 3, and 10" and they "were never returned." Iyoho's abatement hearing testimony reflects that the State offered exhibits labeled as Exhibit Nos. 13, 14, and 15 as substitute copies of Exhibit Nos. 1, 3, and 10. Documents labeled as Exhibit Nos. 13, 14, and 15 were contained in the folder located in the storage room. However, the trial court found that Exhibit 14 was "similar, but different than, State's Abatement Exhibits 10 and 13, which purported to be duplicates of State's Original Exhibit 10." And, Exhibit 15 was "missing a page and contain[ed] extensive highlighting." Finally, as to the exhibits, the trial court found that "[t]he prosecutor conducting the 7/6/16 abatement hearing stated that 'we don't know what was State's Exhibit 10.'"
At the July 6, 2016, hearing Iyoho testified that she recalled that State's Exhibits 1, 3, and 10 "were either admitted or used during the testimony of the probation officer and she walked off with the exhibits when she was excused from Court," the State "introduced copies of 1, 3, and 10 to substitute for the originals," and labeled the copies as 13, 14, and 15 "to make it clear that they were different from what had been admitted as 1, 3, and 10 but they were exact copies of 1, 3, and 10." She described State's Exhibit 10 as "the Summary Report for the three positive alcohol readings for [appellant]," which showed the dates and times of the alleged violations and "that they correspond[ed] with the photos that we had."
As directed in this Court's abatement order, the trial court has made findings on the issues regarding the reporter's record filed in this appeal. We conclude that the evidence supports the trial court's "factual conclusions," which include findings that the "facts of this case rebut any presumption that the record is reliable"; neither Moarefi nor any other court reporter can "improve the transcription in any meaningful way"; and instances identified as "'unintelligible' or 'inaudible' . . . cannot be accurately reproduced by any known means or agreement of the parties." Notably, although exhibits were located in a storage room, original hearing exhibits remain missing.
Viewing the case from the appellant's standpoint, we conclude that the trial court did not abuse its discretion in concluding that (1) "[t]he record is wholly incomplete and unreliable; it cannot be meaningfully corrected or supplemented, and such correction and supplementation is necessary to the resolution of the appeal"; (2) appellant "is not at fault for the deficiencies listed here"; and (3) he "is entitled to a new trial." See Nava, 415 S.W.3d at 306-07 (stating we assess trial court's recollection regarding whether missing record is necessary to appeal's resolution "from the appellant's standpoint and resolve any reasonable doubt in his favor"). "Appellant's ability to present meaningful issues on appeal is severely limited in the absence of a complete reporter's record." Bryant, 464 S.W.3d at 103; see Johnson v. State, No. 13-16-00023-CR, 2017 WL 1281391, at *4 (Tex. App.—Corpus Christi Apr. 6, 2017, no pet. h.) (citations omitted) (concluding appellant's ability to present meaningful issues on appeal was severely limited in absence of complete reporter's record); cf. Issac, 989 S.W.2d at 757 (declining to adopt automatic rule of reversal in cases with lost or destroyed reporter's record, but recognizing "lack of a record may in some cases deprive an appellate court of the ability to determine whether the absent portions are necessary to the appeal's resolution").
Accordingly, we reinstate this appeal, reverse the trial court's judgment, and remand the cause for a new trial. See TEX. R. APP. P. 34.6(f). Any pending motions are dismissed as moot.
PER CURIAM Panel consists of Justices Jennings, Higley, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).