Emmanuel Paramo Garcia v. the State of Texas

CAUSE NO. 12-21-00113-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EMMANUEL PARAMO GARCIA, } APPEALED FROM 369TH DISTRICT
APPELLANT
V. } COURT IN AND FOR
THE STATE OF TEXAS, } CHEROKEE COUNTY, TEXAS
APPELLEE
PER CURIAM ORDER
Emmanuel Paramo Garcia filed a motion suggesting lost record. One of the court
reporters in this case filed a letter advising this Court that some portions of the reporter’s record
are corrupt and unable to be retrieved after a hard drive crash.
The Texas Rules of Appellate Procedure provide that, when the reporter’s record is lost
or destroyed, 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
(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). Regarding the correction of inaccuracies in the reporter’s record, the
parties may agree to correct an inaccuracy in the record, including an exhibit, without the
reporter’s recertification. TEX. R. APP. P. 34.6(e)(1). When, as in this case, the dispute arises
after the reporter’s record has been filed in the appellate court, that court may submit the dispute
to the trial court for resolution. TEX. R. APP. P. 34.6(e)(3). If, after notice and hearing, the trial
court finds any inaccuracy, it must order the reporter to conform the record (including text and
any exhibits) to what occurred in the trial court, and to file certified corrections in the appellate
court. TEX. R. APP. P. 34.6(e)(2). “By written stipulation filed with the trial court clerk, the
parties may agree on the contents of the appellate record.” TEX. R. APP. P. 34.2. “An agreed
record will be presumed to contain all evidence and filings relevant to the appeal.” Id.

Accordingly,

It is ORDERED that the Honorable Michael Davis shall, in accordance with Texas Rule
of Appellate Procedure 34.6(e)(2), conduct a hearing, on or before February 4, 2022, and make
written findings of fact as to whether (1) a portion of the record has been lost or destroyed; and
(2) there are any inaccuracies in the record and, if any such inaccuracies exist, the corrections to
be made. If the trial court finds the record to be inaccurate, the trial court shall order the court
reporter to conform the reporter’s record to what occurred in the trial court and file certified
corrections with this Court. If the trial court finds the record to be lost or destroyed, the trial
court shall determine whether (1) without Appellant’s fault, a significant portion of the record
has been lost or destroyed and, if so, whether the missing portion of the record is necessary to the
appeal’s resolution, (2) the missing portion of the record can be replaced by stipulation or
agreement of the parties, and (3) Appellant is entitled to a new trial under Rule 34.6(f).
It is FURTHER ORDERED that a supplemental clerk’s record including the trial court’s
written findings, along with any supporting documentation and orders, be certified to this Court
on or before February 14, 2022.
It is FURTHER ORDERED that the court reporter file a reporter’s record of the hearing
on or before February 14, 2022.

WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th
Court of Appeals District of Texas, at Tyler.

GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the 5th
day of January 2022, A.D.

_________________________________
KATRINA MCCLENNY, CLERK