David Bocanegra, Jr. v. State

Order filed January 25,2013 In The Client!) Court of Appeals No. 11-12-00038-CR DAVID BOCANEGRA, Appellant V. STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 4 Travis County, Texas Trial Court Cause No. C1CR11205953 ORDER Appellant, David Bocanegra, has filed in this court a motion to abate the appeal on the basis that the reporter's record is incomplete, and additionally, he has filed a motion to extend the time to file his brief. Both motions are granted, and the appeal is abated. Appellant asserts in his motion to abate that the trial court conducted three preliminary hearings in this case: one on October 25, 2011; one on October 28, 2011; and one on November 2, 2011, that was heard on the same day as, but prior to, voir dire. The trial court's docket sheet appears to confirm that hearings were held on these days. However, the record on appeal contains no reporter's record from any such pretrial hearings. Appellant asserts that, in speaking to the court reporter, he learned that a substitute court reporter was assigned to the court at the time of the first two hearings. We abate the appeal and remand the cause to the trial court for the trial court to determine whether these hearings were recorded and, if so, to direct the court reporter to prepare a supplemental reporter's record of each hearing. If the parties have a dispute involving the items that appear to be missing from the appellate record or if the reporter's records have been lost or destroyed, the trial court is directed to resolve that dispute in compliance with Tex. R. App. P. 34.6(e), (f). See Amador v. State, 221 S.W.3d 666, 676-77 (Tex. Crim. App. 2007); Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003); Pierce v. State, No. 03-09-00487-CR, 2010 WL 3719242 (Tex. App.—Austin Sept. 22, 2010, no pet.) (mem. op., not designated for publication). The trial court is directed to make appropriate findings and recommendations. The trial court clerk is directed to prepare and forward to this court a supplemental clerk's record containing any findings, recommendations, and orders made by the trial court in conjunction with the hearing. In addition to the supplemental reporter's records from the pretrial hearings, the court reporter is also directed to prepare and forward to this court the reporter's record from any hearing that the trial court may conduct with respect to this order. The supplemental records are due to be filed in this court within thirty days of this order: on or before February 25, 2013. Appellant's brief is due to be filed in this court fourteen days after the supplemental records are filed. The appeal is abated. PER CURIAM January 25, 2013 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Willson, J.