In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00210-CR
__________________
MICHAEL CLINT WALLACE JR., Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 1A District Court
Tyler County, Texas
Trial Cause No. 13,018
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MEMORANDUM OPINION
Following a trial, a jury convicted Michael Clint Wallace Jr. of continuous
sexual abuse of a child.1 Wallace appealed, claiming he is entitled to a new trial
because significant portions of the court reporter’s record were either lost or
destroyed. Following the appeal, we remanded the proceedings and required the trial
court to conduct several hearings to resolve the dispute over whether the reporter’s
record was irretrievably lost. The trial court issued findings of fact, which support
1
See Tex. Penal Code Ann. § 21.02.
1
Wallace’s claim that a complete record of the proceedings is unavailable to him in
his appeal. The State agrees, explaining significant portions of the reporter’s record
from the trial were lost or destroyed. It acknowledges Wallace is entitled to receive
a new trial.
Under the Texas Rules of Appellate Procedure, the defendant is entitled to a
new trial on proving four things: (1) the defendant timely requested a reporter’s
record; (2) a significant portion of the reporter’s record, without the defendant’s
fault, has been lost or destroyed; (3) the portions of the record that have been lost or
destroyed are necessary to resolving the issues in the appeal; and (4) the portions of
the record that have been lost or destroyed cannot be replaced by the agreement.2
The record shows that in April 2019, a jury convicted Wallace after finding him
guilty of the continuous sexual abuse of a child. The trial court rendered judgment
on the jury’s verdict before Wallace was aware there was a problem with the court
reporter’s reporting of the record.
After the trial court signed the judgment, Wallace requested a complete
reporter’s record of the proceedings in his trial. Because the official reporter the trial
court generally used was unavailable on two of the days of Wallace’s trial, the trial
court had a substitute reporter transcribe the proceedings on those days. When
Wallace asked the substitute reporter to transcribe the proceedings of the two days
2
Tex. R. App. P. 34.6(f).
2
she covered of the guilt-innocence phase of his trial, she advised the Court she could
not provide him or the Court with a certifiable transcript of that portion of the
proceedings because the machine she used on those days had malfunctioned, and
because the files created on the machine on those days were lost.
In response to the letter, as required by Rule 34.6(f), we abated the
proceedings so the trial court could determine whether a significant portion of the
reporter’s record had been lost or destroyed.3 After conducting several evidentiary
hearings, the trial court found that Wallace was entitled to a new trial. Thereafter,
we decided the trial court had reached its conclusion prematurely because the
evidence presented to the trial court in those hearings did not prove the records had
been irretrievably lost. We explained that before the trial court could find the records
were irretrievably lost, the evidence would need to show that another reporter could
not use the substitute reporter’s records (including any audio recordings) to create a
transcript that could be certified for the appeal.4
Accordingly, we abated the proceedings again, instructing the trial court to
appoint a reporter to allow another reporter time to evaluate the substitute reporter’s
records and any audio recordings. After evaluating those materials, the other reporter
3
Id.
4
Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004) (“A court
reporter’s notes and records, or portions thereof, can be considered ‘lost’ only if the
missing portions of the appellate record are irretrievable.”).
3
was to provide the trial court with a professional opinion regarding whether the
available records that existed could still be used to create a transcript from which an
accurate and certifiable record could be created as a substitute for the missing
portions of the record in Wallace’s appeal. Although the trial court did so, the
reporter that examined the information that was available filed an affidavit stating
she could not use the remaining files and recordings to create a transcript that she
could certify as an accurate substitute for the missing records in the appeal. A
separate court reporter, who Wallace retained, provided an affidavit reaching
essentially the same conclusion.
After the reporters filed affidavits, the trial court held another hearing. In that
hearing, the attorney for the State and the attorney for Wallace agreed that substantial
portions of the substitute reporter’s record, portions material to the appeal, have been
lost or destroyed. The prosecutor also stated the affidavits reflect “there are no
decipherable stenographic notes” and that “the transcript that was previously
produced by the [substitute reporter] was [not] actually created by notes.” And the
prosecutor concluded “the record is irretrievable and, therefore, lost or destroyed
under Texas law.” At the conclusion of the hearing, the trial court found Wallace
was entitled to a new trial under the requirements of Rule 34.6(f).
Having reviewed the record, we agree significant portions of the reporter’s
record have either been lost or destroyed, without Wallace’s fault. The parties have
4
not agreed to replace the lost portions of the record by agreement. Since Wallace
challenges whether sufficient evidence supports his conviction, a complete transcript
of the evidence is necessary to resolve the issues relevant to his appeal.5
Accordingly, we reverse the trial court’s judgment (a judgment it rendered
before recognizing the reporter’s record was lost) and we remand the case to the trial
court so that it may conduct a new trial.
REVERSED AND REMANDED.
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HOLLIS HORTON
Justice
Submitted on June 1, 2021
Opinion Delivered March 2, 2022
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
5
See Gavrel v. Rodriguez, 225 S.W.3d 758, 763 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied) (concluding that, in the absence of a complete record, “it is
impossible to review all the evidence presented to the jury or to apply the appropriate
evidentiary sufficiency standard of review”).
5