Beal v. State
| Decision Date | 31 March 2016 |
| Docket Number | NO. 01-12-00896-CR,01-12-00896-CR |
| Parties | CRAIG LYNN BEAL, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the County Criminal Court at Law No. 8 Harris County, Texas
Appellant, Craig Lynn Beal, was convicted of the misdemeanor offense of cruelty to non-livestock animals and was sentenced to one year in the Harris County Jail. Appellant argues we should reverse and remand his conviction for a new trial based on a reporter's record that was lost but is now incomplete and inaccurate. We reverse.
The appellate record was originally due on November 12, 2012. On December 5, 2012, we notified the court reporter, Sondra Humphrey, that the reporter's record was late. No response was received. On February 22, 2013, Humphrey filed an excerpt of trial testimony with the caption that the record was volume one of a one-volume record. The clerk's office of this Court accepted this as the reporter's record and set a deadline for the filing of appellant's brief in March 2013. After receiving no response to our notices that appellant's brief was late, we issued an order in October 2013, remanding to the trial court to determine why no brief had been filed. While waiting for the trial court to file its hearing record, we determined that the reporter's record was incomplete and issued an abatement order, remanding the case to the trial court for a hearing to determine why Humphrey had not filed the reporter's record, to set a date for the filing of the reporter's record, and to make findings whether Humphrey should be held in contempt. We also noted that Humphrey had failed to file reporter's records in several other cases.
In the summer of 2014, we granted Humphrey's request for an extension of time to file the reporter's record. No reporter's record was filed. On June 23, 2015, we issued another abatement order, again directing the trial court to hold a hearingto determine why the reporter's record had not been filed and to make findings and conclusions regarding whether the reporter's record was lost or destroyed. The Honorable Sherman A. Ross, former Presiding Judge of the Harris County Criminal Courts at Law, was assigned to hear the proceedings regarding past due reporter's records in this case and in a number of other cases.1 On July 22, 2015, a supplemental clerk's record was filed containing the trial court's findings of fact and conclusions of law.
The trial court found that, despite numerous hearings and orders, Humphrey failed to appear and refused to turn over her notes and audio recordings. The trial court then ordered Humphrey to turn over all her notes and audio recordings. Given her refusal to cooperate and comply with his orders, the trial court found her in contempt and sentenced her to 30 days in jail and a $500 fine. The trial court found that a complete record would not be filed in this case and concluded that Humphrey "violated her oath to keep a correct, impartial record" and that appellant was entitled to a new trial.
In September 2015, Beal asked that we follow the trial court's findings and conclusions and reverse and remand for a new trial. The next day, Humphrey tendered a reporter's record that the clerk's office refused for failure to include the listed exhibits. On September 14, 2015, almost three years after it was originally due, Humphrey filed a reporter's record with the exhibits.
On September 11, 2015, the State asked this Court to order the trial court to withdraw its previous findings and conclusions and to file new ones based on the recently-filed reporter's record that "appears to be both complete and accurate." We asked the parties to review the reporter's record and file any complaints concerning its completeness or accuracy within 10 days. The State did not file a response, but appellant filed an objection, stating that the reporter's record was "per se unreliable due to the irregularity of the proceedings and untrustworthiness of the reporter," that given the extreme delay, it was no longer possible to ensure the accuracy and completeness of the record, and set out a number of errors identified from a "cursory examination." We then ordered Humphrey to make corrections to the reporter's record, specifying the errors appellant had asserted. A corrected reporter's record was not filed.
On December 8, 2015, we directed the trial court to hold a hearing and to determine whether the defects in the record could be corrected, and whether the corrections were necessary to the resolution of the appeal. TEX. R. APP. P.34.6(e)(2). A week later, Humphrey filed a corrected reporter's record; however, it still contained a number of the errors noted in our December 8 order.
On February 4, 2015, we received a supplemental clerk's record containing the trial court's supplemental findings of fact and conclusions of law. We also received a hearing record. The trial court noted that Humphrey failed to appear at the first hearing scheduled on December 14, 2015. The matter was reset to January 4, 2016. During that hearing, Humphrey appeared and attempted to explain the problems with the record. Counsel for the State advised the trial judge that she did not believe any errors were essential to the appeal, but added:
I still am not confident that I'm completely aware of everything that is wrong with this record at this point. I think that there's more to be unearthed and everything has to be gone through page by page. We were attempting to do that; and Ms. Woods [appellant's counsel] and I have already noticed some errors, some differences, some changes that are problematic.
The trial court found that the reporter's record was necessary to the resolution of the appeal and that the reporter's record could not be replaced by agreement of the parties. The trial court further found that Humphrey either did not have a complete stenographic record or audio recording of the proceedings "or she willfully refused and continues to refuse to obey the orders of the Court and either file the record or turn over her materials." The trial court noted that both sides agreed that the record contained numerous errors in both the transcript of testimony and in theexhibits. The trial court further found that both the September and December reporter's record were "so blatantly and pervasively defective as to undermine their overall integrity" and that they "should not be considered an official or complete record of the proceedings." Based on his findings, the trial court concluded that appellant was entitled to a new trial. The State has not challenged the trial court's fact findings or conclusions of law.
Appellant claims he is entitled to a new trial because he has been denied due process, and the integrity of the appeal was "shattered due to the extreme delay" and the "bad faith by an officer of the court [Humphrey]." Although the State objected to appellant's first motion in September 2015, asserting that the reporter's record appeared to be complete and accurate, the State has not objected to a new trial after the trial court's January 2016 hearing. Indeed, the State agreed with the trial court's findings that the record contained numerous defects, that the latest record contained newly-created defects, and that additional problems would be discovered if the parties had more time to analyze the record.
An appellant is entitled to a new trial if, through no fault of the appellant, a reporter's record is lost or destroyed, and the portion lost or destroyed is necessaryto the resolution of the appeal and cannot be replaced by agreement of the parties. TEX. R. APP. P. 34.6(f); Mendoza v. State, 439 S.W.3d 564, 566 (Tex. App.—Amarillo 2014, no pet.); Castillo v. State, No. 01-13-00632-CR, 2015 WL 1778776, at *2 (Tex. App.—Houston [1st Dist.] April 16, 2015, no pet.). If the missing portion of the reporter's record is not necessary to the resolution of the appeal, the appellant is not entitled to a new trial. See TEX. R. APP. P. 34.6(f); Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013); Routier v. State, 112 S.W.3d 554, 571-72 (Tex. Crim. App. 2003).
Few cases addressing lost or destroyed records set out the standard for reviewing the trial court's findings of fact and conclusions of law. In Lucas v. State, No. 05-01-00078-CR, 2003 WL 21771333, at *4 (Tex. App.—Dallas Aug. 1, 2003, pet. ref'd), the Dallas court noted this lack of authority and determined it should apply the standard set out in Guzman v. State, 955 S.W.2d 85 (Tex. 1997) when reviewing a trial court's findings and conclusions about a lost or destroyed record. Under Guzman, the proper standard for reviewing trial court findings of fact is an abuse of discretion standard, giving "almost total deference to a trial court's determination of the historical facts that the record supports." Guzman, 955 S.W.2d at 89. We review conclusions applying the law to those facts de novo. Id. We will apply the Guzman standards here.
Appellant is not at fault for the missing record
We turn first to the trial court's finding that appellant was not at fault for the lost or destroyed reporter's record. The trial court found:
Rule 34.6 requires...
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