NUMBER 13-17-00083-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF K.M., I.M., AND K.M., CHILDREN
On appeal from the 92nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant, Jesus Mendoza, appeals from an “Order in Suit for Modification of
Support Order and to Confirm Support Arrearage” dated January 6, 2017. A partial
reporter’s record has been filed in this matter. On June 27, 2017, court reporter Julian G.
Alderette filed an affidavit with this Court stating his hard drive containing stenographic
notes was dropped and damaged and that he cannot provide a transcript of the hearings
because the files cannot be retrieved. Therefore, we abated the cause and remanded to
the trial court for a hearing and for findings under Texas Rule of Appellate Procedure
34.6(f), which states that 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).
On remand, the trial court held a hearing during which the terms of the January 6,
2017 order were read into the record. A supplemental clerk’s record has been filed
containing the trial court’s findings as follows:
1. The Court found that Appellant had timely requested a Reporter’s
record.
2. The Court further found Appellant’s Court Reporter's notes and
records lost or destroyed had been without Appellant’s fault.
3. The court further finds that the destroyed Court Reporter’s notes and
records are necessary to the appeals resolution.
4. The Court therefore conducted a hearing, and by agreement of the
parties to accurately duplicate with reasonable certainty the findings
and orders previously rendered in the prior hearing of December,
2016, and order signed January 6, 2017.
We construe the fourth finding to mean that the lost portion of the reporter’s record cannot
be replaced by agreement by the parties. See id.
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The record supports the trial court’s findings. Accordingly, appellant is entitled to
a new trial under rule 34.6(f). See id. We therefore reinstate the appeal, reverse the
judgment of the trial court and remand for a new trial. All pending motions are denied as
moot.
DORI CONTRERAS
Justice
Delivered and filed the
26th day of October, 2017.
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