Reed v. State, No. 05-06-01674-CR (Tex. App. 8/21/2007)
| Decision Date | 21 August 2007 |
| Docket Number | No. 05-06-01674-CR.,05-06-01674-CR. |
| Parties | MICHAEL ANDRE REED, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F94-39576-HQ.
Reverse and Remand.
Before Chief Justice THOMAS and Justices BRIDGES and LAGARDE.1
Appellant Michael Andre Reed appeals his 1994 conviction for murder. In a sole issue on appeal, appellant contends he is entitled to a new trial because he "timely requested the reporter's record, without his fault the requisite notes cannot be located, the nonextant reporter's record is necessary to the appeal's resolution, and the nonextant reporter's record cannot be replaced by agreement." The State agrees appellant has met the requisites of rule 34.6(f) of the Texas Rules of Appellate Procedure,2 that the lost court reporter's record of appellant's jury trial is necessary to the resolution of his appeal, and that appellant is entitled to a new trial. The State joins appellant in his prayer for such relief. We reverse the trial court's judgment and remand this case to the trial court for proceedings consistent with this opinion.
Appellant Michael Andre Reed was indicted for murder in trial cause number F94-39576-HQ. The murder was alleged to have been committed on or about February 12, 1994. On appellant's plea of not guilty, the case was tried before a jury on September 12, 1994. After the jury found appellant guilty, appellant's punishment was assessed at confinement in prison for forty-five (45) years.
Appellant pursued, and ultimately was granted an out-of-time appeal by the Texas Court of Criminal Appeals on August 30, 2006. The Court ordered appellant to file his notice of appeal within thirty (30) days of September 28, 2006, the date of the issuance of the Court's mandate. Appellant filed a notice of appeal on October 16, 2006, and on December 12, 2006, the trial court certified appellant's right of appeal.
On or about January 19, 2007, the court reporter prepared a written statement in which she stated that her notes and tapes of appellant's trial were stored in the Frank Crowley Criminal Courts building in 1994. She further states those items were moved to a "different location and larger warehouse" in boxes labeled with dates and court number. The court reporter stated that neither she, nor the Records Center, had been able to locate the boxes.
On January 24, 2007, this Court abated appellant's appeal and ordered the trial court to conduct a hearing to determine certain issues in accordance with rule 34.6(f) of the Texas Rules of Appellate Procedure. Specifically, this Court asked the trial court to determine the following issues: (1) the date on which appellant requested the record; (2) whether the notes of the proceedings can be located and transcribed; (3) if the notes, or a significant portion of the notes, cannot be located or transcribed, whether appellant is at fault for the loss or destruction of the notes; and (4) whether the parties can agree on a substituted record.
The trial court entered its findings on February 16, 2007. On March 8, 2007, this court adopted the trial court's findings that: (1) appellate counsel Robert Udashen requested the reporter's record on October 24, 2006 from court reporter Irene Massar; (2) Ms. Massar attempted to locate the notes for the proceedings, but they could not be located; (3) the notes are lost; (4) appellant is not at fault for the loss or destruction of the notes; and (5) the trial proceedings took place in 1994 and the parties have no basis for a substituted record....
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