Hawkins v. State, No. 12-08-00357-CR (Tex. App. 2/17/2010), 12-08-00357-CR.

CourtCourt of Appeals of Texas
PartiesRAY CHARLES HAWKINS, Appellant, v. THE STATE OF TEXAS, Appellee.
Docket NumberNo. 12-08-00357-CR.,12-08-00357-CR.
Decision Date17 February 2010

Page 1

Unpublished Opinion

No. 12-08-00357-CR.
Court of Appeals of Texas, Twelfth District, Tyler.
Opinion delivered February 17, 2010.
Do Not Publish.

Appeal from the 114th Judicial District Court of Smith County, Texas.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.



Ray Charles Hawkins appeals from his conviction for indecency with a child. In one issue, Appellant argues that he should be granted a new trial because the reporter's record for his trial is unavailable. We reverse and remand for a new trial.


Appellant was convicted of indecency with a child in September 1993 and was sentenced to imprisonment for twenty years. Appellant attempted to appeal his conviction in 1994, but he did not timely file his notice of appeal, and this court dismissed his appeal. See Hawkins v. State, No. 12-94-00028-CR (Tex. App.-Tyler Feb. 17, 1994, no pet.) (per curiam) (not designated for publication). More than ten years later, Appellant applied for a writ of habeas corpus from the court of criminal appeals alleging that he received ineffective assistance of counsel and seeking an out of time appeal. See Ex parte Hawkins, No. AP-75,521 (Tex. Crim. App. Oct. 4, 2006) (per curiam) (unpublished). The court of criminal appeals granted relief and allowed Appellant to file an out of time appeal. Id.

Once again, Appellant filed notice of appeal. However, his attorney did not file a required certification from the trial court, and we dismissed his appeal. See Hawkins v. State, No. 12-06-00386-CR, 2007 Tex. App. LEXIS 682 (Tex. App.-Tyler Jan. 31, 2007, no pet.) (per curiam) (mem. op., not designated for publication). Appellant again petitioned the court of criminal appeals for relief asserting that his appellate counsel had provided ineffective assistance of counsel. The court granted relief, and this appeal followed. Ex parte Hawkins, No. AP-75,957, 2008 Tex. Crim. App. Unpub. LEXIS 504 (Tex. Crim. App. July 2, 2008) (per curiam) (unpublished).

After it became apparent that there was a problem with obtaining the record, this court directed the trial court to hold a hearing on the availability of the court reporter's record. The court held a hearing and determined that the record of the guilt/innocence portion of the trial could not be produced. It is not clear from the record what happened to the notes or recordings. According to the court reporter who regularly reported the proceedings in the trial court, another reporter substituted for him during the guilt/innocence phase of the jury trial in this case. That reporter, by an affidavit filed in this case, said that he had no notes or records that related to this trial and that he "believe[d]" that he "actually reported" in a different court that week.


In one issue, Appellant argues that he cannot effectively appeal his conviction because there is no court reporter's record. Accordingly, he argues he is entitled to a new trial.

A defendant is entitled to a new trial if he has timely requested a reporter's record and, without his fault, a significant portion of the court reporter's notes and record are lost or destroyed, the lost or destroyed portions are necessary to the appeal's resolution, and they cannot be replaced by agreement of the parties or by other means. TEX. R. APP. P. 34.6(f). The parties agree that the transcript of the jury trial is lost and that it cannot be replaced by agreement. By virtue of the court of criminal appeals decision resetting the appellate timetable in this case, Appellant's request for a reporter's record was timely. See Hawkins, 2008 Tex. Crim. App. Unpub. LEXIS 504, at *1-2 ("All time limits shall be calculated as if the sentence had been imposed on the date on which the mandate of this Court issues.").

The State's Arguments

The State asserts that Appellant is not entitled to a new trial because the record is not necessary to the resolution of the appeal. Additionally, the State argues that Appellant was not diligent about seeking his appeal. Accordingly, pursuant to rule 34.6 and the equitable doctrine of laches, the State argues that Appellant's delay in bringing this appeal precludes relief.

The arguments as to laches and Appellant's fault are predicated on the delay between the dismissal of Appellant's appeal in 1994 and his attempt to seek an out of time appeal in 2006. The trial court found that Appellant did not timely file his first notice of appeal or request for a record. In addition, the trial court found that Appellant had not done anything from 1994 to 2006 to attempt to obtain a record.1 The trial court found that the loss of the record was due in part to Appellant's failure to timely request the record or to prosecute his appeal.

Laches and Fault

Prior to the adoption of rule 34.6, or its predecessor, rule 50(e), the common law rule for determining when a new trial should be granted included the laches doctrine. See, e.g., Dunn v. State, 733 S.W.2d 212, 215 (Tex. Crim. App. 1987) (quoting Timmons v. State, 586 S.W.2d 509, 512 (Tex. Crim. App. 1979)). Specifically, an appellant was required to show that he acted with due diligence and that the failure to file a record was not due to his or his counsel's negligence, laches, or other fault. Dunn, 733 S.W.2d at 215.

The current rule is slightly different. Rule 34.6(f) requires that a request for the record be timely and also that the loss of the record have occurred without an appellant having "fault."2 Most often the "fault" provision is invoked when an appellant effectively waives preparation of the record. See, e.g., Cheek v. State, 65 S.W.3d 728, 730 (Tex. App.-Waco 2001, no pet.) (defendant at fault because he did not request or pay for a transcription of the necessary record). At least one court has found an appellant at fault in a case where an out of time appeal was granted. See Branch v. State, No. 03-07-00118-CR, 2008 Tex. App. LEXIS 3569, at *4 n.1, 16 (Tex. App.-Austin May 16, 2008, pet. ref'd) (mem. op., not designated for publication). In that case, the appellant's actions were closer to a waiver in that he was a fugitive for many years and his delay in seeking an appeal caused the clerk to destroy the record because fifteen years had passed since the trial. Id. at *15-16; see also Tex. R. App. P. 13.6 (allowing clerk to destroy notes or recordings of proceedings after fifteen years). Neither situation is presented in this case. Appellant was not a fugitive, and his request for the record was within fifteen years of the date of his sentencing.3

The Branch decision cuts against Appellant's argument that he cannot have "fault" when the court of criminal appeals has granted an out of time appeal. However, courts that have considered the scope of relief provided when the court of criminal appeals grants an out of time appeal have treated the granting of an out of time appeal as a resetting of all time considerations. As the court observed in Duran v. State, 868...

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