Reinstated; Reversed and Remanded and Opinion filed April 7, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00922-CR
KAREN WOODING BRYANT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Cause No. 1872448
OPINION
A jury convicted appellant of the misdemeanor offense of assault of a family
member. On September 12, 2013, the trial court sentenced appellant to
confinement for one year in the Harris County Jail and assessed a fine of $4,000.
The trial court probated the sentence and placed appellant on community
supervision for nine months. Appellant filed a timely notice of appeal.
The reporter’s record from the trial was due on or before November 11,
2013. Sondra Humphrey, the substitute court reporter responsible for the record in
this case, has not filed the reporter’s record from the trial.
On April 10, 2014, we abated the appeal and directed the trial court to
conduct a hearing to determine the reason for the failure to file the record. The
Hon. 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 Sondra Humphrey in this case and eight other cases
pending in both this court and the Court of Appeals for the First District of Texas.
See Tex. Gov’t Code Ann. § 74.056 (West 2013). Judge Ross issued many orders
and conducted numerous hearings to assist the appellate courts in obtaining the
reporter’s records in these cases. After it became apparent that Ms. Humphrey was
unable to provide a complete record in this case, Judge Ross ordered Ms.
Humphrey to provide the court with her computerized stenographic notes and an
audio recording of the trial so that another court reporter could attempt to complete
the record. After much delay, Ms. Humphrey’s notes and an audio recording in this
case were delivered to the court. Judge Ross appointed another court reporter to
attempt to reconstruct the record, but that court reporter was unable to do so. After
finding that Ms. Humphrey violated several of the court’s orders, Judge Ross held
her in contempt of court. On August 15, 2014, Judge Ross sentenced Ms.
Humphrey to confinement for 30 days in the Harris County Jail and assessed a
$500 fine.
Records from several hearings conducted by Judge Ross were filed in this
court. In addition, counsel for the State submitted proposed Findings of Fact and
Conclusions of Law concerning the status of the records for this case and eight
other cases reported by Ms. Humphrey. Based upon these records and the State’s
proposed findings and conclusions, it appeared that the reporter’s record in this
appeal may have been “lost or destroyed” for purposes of appeal.
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On November 20, 2014, this court issued an order directing Judge Ross to
make and file findings of fact and conclusions of law concerning whether appellant
is entitled to a new trial, as required under Texas Rule of Appellate Procedure
34.6(f). Rule 34.6(f) of the Texas Rules of Appellate Procedure, entitled
“Reporter’s Record Lost of Destroyed,” provides that an appellant is entitled to a
new trial when the reporter=s record or exhibits are lost, under the following
circumstances:
(1) if the appellant 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).
The Texas Court of Criminal Appeals has determined that an incomplete
record does not result in an automatic reversal under the 1997 amended appellate
rules. See Issac v. State, 989 S.W.2d 754, 756 (Tex. Crim. App. 1999). Instead, a
harm analysis is required when considering a missing or incomplete reporter’s
record. Id. at 757. The provision in Rule 34.6 requiring an appellant to show that
the missing portion of the record is necessary to her appeal is essentially a
requirement that the appellate court perform a harm analysis. Nava v. State, 415
S.W.3d 289, 306 (Tex. Crim. App. 2013) (citing Routier v. State, 112 S.W.3d 554,
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571 (Tex. Crim. App. 2003)). 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 and
a new trial is not required. Routier, 112 S.W.3d at 571–72; Issac, 989 S.W.2d at
757.
On March 3, 2015, Judge Ross filed findings of fact and conclusions of law,
which were made part of a supplemental clerk’s record filed March 11, 2015.
Accordingly, the appeal is ordered reinstated. Included in the trial court’s findings
of fact were the following:
At the request of the parties, the undersigned judge directed Brenna
DeMoss, official court reporter for County Criminal Court at Law No.
11 of Harris County, Texas, to review the audio files, and
stenographic notes submitted to the Court by Ms. Humphrey.
Ms. DeMoss could not reconstruct a complete reporter’s record based
upon the audio and stenographic notes submitted to the Court by Ms.
Humphrey.
Ms. Humphrey’s medical condition, personal, and professional
problems during the latter part of 2013, and early 2014, up to and
including the contempt hearings [in this case and eight other cases]
indicate she may not have been in a condition to transcribe the
proceedings, or otherwise conduct herself in a professional manner.
The appellant timely filed a notice of appeal.
This case did not involve a waiver of a court reporter, nor was it a
mere formality or summary proceeding.
The appellant bears no fault for Ms. Humphrey’s failure to complete
and file the reporter’s record.
The reporter’s record is necessary to the appeal’s resolution.
The reporter’s record cannot be replaced by agreement of the parties
to the facts contained in the record, if [no] complete and legible record
exists.
The exhibits or copies of the exhibits are available.
Based upon Ms. Humphrey’s representations to this court regarding
the status of the reporter’s record, and her failure to either file the
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completed record or provide the court with stenographic notes capable
of being transcribed by another official court reporter using the same
software system resulting in a complete record[,] this Court does not
find Ms. Humphrey to be credible.
The undersigned finds Ms. Humphrey failed to file the record because
she had neither a complete stenographic record, nor a complete audio
recording of the proceedings in the trial court; or she willfully refused
and continues to refuse to fully and accurately transcribe her notes.
This Court does not believe a complete record will ever be filed by
Ms. Humphrey or another court reporter.
Judge Ross also made the following conclusions of law:
Sondra Humphrey violated her oath to keep a correct, impartial record
of (1) the evidence offered in the case; (2) the objections and
exceptions made by the parties to the case; and (3) the rulings and
remarks made by the court in determining the admissibility of
testimony presented in the case. Tex. Gov’t Code Ann. § 52.045(b)
(West Supp. 2014).
The appellant is entitled to a new trial. Tex. R. App. P. 34.6(f).
We agree with the trial court’s conclusion that appellant is entitled to a new
trial. Judge Ross determined that Ms. Humphrey’s notes and audio recording were
incomplete and incapable of being transcribed by another court reporter. The
record supports Judge Ross’s finding that the reporter’s record in this case is
irretrievably lost. See Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim. App.
2004) (stating a court reporter’s notes and records can be considered “lost” only if
the missing portions of the appellate record are irretrievable); see Mendoza v.
State, 439 S.W.3d 564, 565 (Tex. App.—Amarillo 2014, no pet.) (finding appellant
was entitled to a new trial where the court reporter was unable to transcribe certain
portions of the record due to incomplete notes and inaudible cassettes from the
original reporter who had since passed away). Judge Ross conducted numerous
hearings and issued many orders, including orders that Ms. Humphrey remain at
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the courthouse to work on the record, in an effort to obtain a complete reporter’s
record. Judge Ross ultimately found Ms. Humphrey in contempt of court for
failure to comply with his orders to complete the record. See Johnson, 151 S.W.3d
at 196 (stating a court should exercise its contempt power to compel an errant court
reporter to prepare and file the record). When it became apparent that Ms.
Humphrey would not file a complete and accurate record, the court unsuccessfully
attempted to have another court reporter transcribe the record from Ms.
Humphrey’s notes and audio recording. See Routier, 112 S.W.3d at 567 (approving
the trial court’s use of another court reporter to correct and edit an inaccurate
reporter’s record).
We also agree with Judge Ross’s finding that the missing reporter’s record is
necessary to appellant’s appeal. A new trial is required when the missing record is
necessary to the appeal’s resolution. Osuch v. State, 976 S.W.2d 810, 812 (Tex.
App.—Houston [1st Dist.] 1998, no pet.) (concluding a destroyed videotape of the
driver performing field sobriety tests was “necessary to the appeal’s resolution”
and the defendant was entitled to a new trial because he challenged whether a
custodial interrogation occurred during his performance of the tests).
We have no reporter’s record from the entire trial. Appellant’s ability to
present meaningful issues on appeal after a jury trial is severely limited in the
absence of a reporter’s record. In a criminal case, if appellant complains that “the
evidence is insufficient to support a finding of guilt, the record must include all the
evidence admitted at the trial on the issue of guilt or innocence and punishment.”
Tex. R. App. P. 34.6(c)(5). Without a complete reporter’s record of the evidence
before the jury, appellant cannot demonstrate the evidence is insufficient. Martin v.
State, 13 S.W.3d 133, 140 (Tex. App.—Dallas 2000, no pet.). We therefore
conclude that appellant has been harmed by the absence of a reporter’s record.
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The trial court’s judgment is reversed, and this cause is remanded for a new
trial.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Publish — Tex. R. App. P. 47.2(b).
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