COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
FABIAN DOUGLAS CASTANEDA, § No. 08-12-00167-CR
Appellant, § Appeal from the
§ 83rd District Court
THE STATE OF TEXAS § of Pecos County, Texas
State. § (TC# P-2377-83-CR)
§
ORDER
On June 22, 2015, the Court filed the supplemental clerk’s record as requested in our
order issued on May 8, 2015. Further, the Court filed the supplemental reporter’s record from
the hearing conducted by the trial court pursuant to that same order. The purpose of the hearing
was to determine whether the court reporter’s notes from a pre-trial hearing held in 2000 have
been lost, and if they have, whether Appellant may be entitled to a new trial pursuant to
TEX.R.APP.P. 34.6(f). At our request, the trial court made findings of fact and conclusions of
law related to those issues. The Court has reviewed the trial court’s findings and conclusions as
well as the transcription of the hearing conducted by the trial court. The record of the hearing
supports the trial court’s fact findings.
The record reflects that the court reporter’s notes from the June 13, 2000 pre-trial hearing
have been lost. Appellant did not request the court reporter to prepare the transcription of that
hearing within three years and he did not ask the court reporter to preserve the notes for more
than three years. It is undisputed that Appellant failed to appear in court on the trial date of July
10, 2000 and he remained at large until he was rearrested in August of 2010. William Briggs,,
the court reporter who transcribed the June 2000 pre-trial hearing, put the notes of the hearing in
an envelope and filed it in his office at the 83rd District Court. Mr. Briggs testified that if he had
been requested to preserve his notes he would have filed them with the district clerk, but no such
request was ever made. Mr. Briggs left employment with the 83rd District Court sometime after
the June 2000 hearing but he was unsure of the exact date. He testified that he only worked for
the Judge Carl Pendergrass for only a couple of years after he took office. We take judicial
notice of official records reflecting that Judge Pendergrass was appointed to serve as the judge of
the 83rd District Court on October 29, 1999. Based on the record, it appears that Mr. Briggs left
employment as the court reporter in late 2001. Appellant made a request for preparation of the
reporter’s record, including pre-trial hearings, in 2012 after his trial. Mr. Briggs was not
contacted by Appellant’s attorney regarding the record of the pre-trial hearing in question until
2015. We find that Appellant is not entitled to a new trial under TEX.R.APP.P. 34.6(f) because
Appellant did not timely request preparation of this portion of the reporter’s record, and because
the record does not show that this portion of the record was lost without the fault of Appellant.
The appeal is reinstated and Appellant’s third motion for extension of time to file the
brief is GRANTED. Appellant’s brief is now due to be filed no later than July 25, 2015.
IT IS SO ORDERED this 25th day of June, 2015.
PER CURIAM
Before McClure, C.J., Rodriguez and Hughes, JJ.