Joel Lee Gonzales v. the State of Texas

NOS. 12-21-00239-CR
12-21-00240-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOEL LEE GONZALES, § APPEALS FROM THE 114TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Joel Lee Gonzales appeals his convictions for aggravated assault against a public servant
and evading arrest with a motor vehicle. In his sole issue, Appellant contends that he is entitled
to a new trial on punishment in both cases because the record of the punishment hearing is
unreliable and cannot be corrected. We reverse and remand for a new punishment hearing in
both cases.

BACKGROUND
Appellant was indicted for aggravated assault against a public servant and evading arrest
with a vehicle. Both indictments contained enhancement paragraphs alleging that Appellant had
three prior felony convictions. He pleaded “not guilty” to the aggravated assault on a public
servant offense, and “guilty” to the evading arrest with a vehicle offense, but “not true” to the
State’s deadly weapon and prior conviction enhancement allegations in both cases. Ultimately,
the jury found Appellant guilty of the aggravated assault charge. The trial court’s judgments
reflect that it assessed Appellant’s punishment at life imprisonment for the aggravated assault
case and forty years for the evading arrest case, and that the deadly weapon and enhancement
allegations in both cases were “true.” This appeal followed.
UNRELIABLE PUNISHMENT HEARING REPORTER’S RECORDS
Appellant filed a motion to abate for correction of inaccuracies in volume eight of the
reporter’s record, which consisted of the punishment phase of trial. Substitute court reporter
Beverly E. Dixon prepared volume eight and Appellant’s counsel represented that the volume
revealed inaccuracies that exceed typographical errors and create confusion as to what occurred
during this phase of trial. This Court ordered the trial court to conduct a hearing and make
written findings of fact as to whether there are any inaccuracies in volume eight of the record
and, if any such inaccuracies exist, the corrections to be made. We further ordered that if the
trial court found volume eight of the record to be inaccurate, the trial court should order the court
reporter to conform the reporter’s record to what occurred in the trial court and file certified
corrections with this Court.
After a hearing, the trial court made the following pertinent findings: (1) Appellant timely
requested preparation of the reporter’s record; (2) any error in the transcript or missing portion of
the transcript is not due to any act or omission of the State or Appellant; (3) at the hearing, all
parties agreed that volume eight is “so filled with errors as to render it unusable and wholly
unreliable;” (4) volume eight consisted of the entirety of the sentencing phase of the trial,
including that both the State and Appellant called one or more witnesses; (5) Dixon testified that
there are no recordings, notes, or other means by which to create an accurate transcript of what
occurred, thus, there is no basis to believe that Dixon or another reporter could correct and file a
new record if ordered to do so; and (6) the “missing portion of the record was of such a nature
that the parties cannot reasonably be expected to stipulate as to the correct contents,” nor can the
court “on its own recollection recreate the record.”
This Court requested briefs from the parties as to whether Appellant is entitled to a new
trial. Appellant filed briefs taking the position that he is entitled to a new trial on punishment in
both cases. The State did not file a brief. 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

2
(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). “[D]epriving a defendant of part of the statement of facts to which he is
entitled results in a new trial.” Perez v. State, 824 S.W.2d 565, 567 (Tex. Crim. App. 1992) (en
banc); Payne v. State, 802 S.W.2d 686, 689 (Tex. Crim. App. 1990) (en banc).
As the trial court’s findings reflect, all four of Rule 34.6(f)’s criteria have been met.
Appellant timely requested the reporter’s record, and volume eight comprised the entirety of the
testimony, evidence, and argument presented during the punishment phase of his trial for the
aggravated assault case and the sentencing hearing for his evading arrest case. The pleadings
and judgment indicate that the State sought to enhance the penalty range for the cases due to
prior convictions and that deadly weapon findings were also made.
It is undisputed that volume eight contained inaccuracies of what transpired during the
punishment phase for both of Appellant’s cases. The inaccuracies of volume eight were not the
fault of either party, and the parties cannot stipulate or agree to the contents of the record for the
appeal. Without an accurate record of what transpired during the punishment hearing, neither
appellate counsel, nor this Court can determine whether error occurred by the entry of deadly
weapon findings for both cases, whether sufficient evidence supported the trial court’s findings
on the State’s enhancement paragraphs, and whether there are any other errors in the judgments
for either case. As a result, the only appropriate remedy is a new punishment hearing in both
cases. See id.; see also Dye v. State, No. 12-21-00187-CR, 2022 WL 2062473, at *1–2 (Tex.
App.—Tyler June 8, 2022, no pet.) (mem. op., not designated for publication); Cooks v. State,
No. 10-09-00009-CR, 2011 WL 337335, at *1 (Tex. App.—Waco Feb. 2, 2011, no pet.) (mem.
op., not designated for publication).
Appellant’s sole issue in both cases is sustained.

DISPOSITION
Having sustained Appellant’s sole issue, we reverse the judgments of the trial court with
respect to the punishments imposed and remand for new punishment hearings in both cases.

3
BRIAN HOYLE
Justice

Opinion delivered August 10, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

4
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 10, 2022

NO. 12-21-00239-CR

JOEL LEE GONZALES,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1275-20)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that Appellant is
entitled to a new trial on punishment in the court below, it is ORDERED, ADJUDGED and
DECREED by this Court that the judgment be reversed and the cause remanded to the trial
court for a new punishment hearing in accordance with the opinion of this Court; and that this
decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 10, 2022

NO. 12-21-00240-CR

JOEL LEE GONZALES,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1276-20)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that Appellant is
entitled to a new trial on punishment in the court below, it is ORDERED, ADJUDGED and
DECREED by this Court that the judgment be reversed and the cause remanded to the trial
court for a new punishment hearing in accordance with the opinion of this Court; and that this
decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.