Markowitz, Avi Bart v. Markowitz, Bridget Mary--Appeal from 272nd District Court of Brazos County

Appellant=s Motion for Rehearing Overruled; Opinion of April 17, 2003, Withdrawn; Affirmed and Majority and Concurring Opinions on Rehearing filed September 11, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-00-01505-CV

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AVI BART MARKOWITZ, Appellant

V.

BRIDGET MARY MARKOWITZ, Appellee

On Appeal from the 272nd District Court

Brazos  County, Texas

Trial Court Cause No. 35,930A-272

C O N C U R R I N G O P I N I O N

O N M O T I O N F O R R E H E A R I N G

We join the majority opinion in all respects except for its discussion of the first issue. On the first issue only, this is the majority opinion.

  REPORTER=S RECORD

In his first issue, Avi contends that he is entitled to a new trial because the court reporter failed to transcribe and file certain pretrial proceedings, which were recorded electronically. We disagree.

Avi claims that the missing pretrial proceedings would demonstrate he was denied a fair and impartial trial on the merits because of the trial judge=s bias.[1] 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 B if the proceedings were electronically recorded B 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 parties cannot agree on a complete reporter=s record.

Tex. R. App. P. 34.6(f) (Vernon Special Pamph. 2002) (emphasis supplied); Routier v. State, No. 72795, __ S.W.3d __, 2003 WL 21185818 at *13 (Tex. Crim. App. May 21, 2003); Issac v. State, 989 S.W.2d 754, 756-57 (Tex. Crim. App. 1999) (en banc).[2] We find that Avi has not complied with the fourth requirement, showing that the parties could not agree on a complete reporter=s record. See Tex. R. App. P. 34.6(f)(4). This failure on his part is dispositive of this issue.

We can find no reference in any document submitted by Avi that he has fulfilled this requirement. See Kirtley v. State, 56 S.W.3d 48, 52 (Tex. Crim. App. 2001) (holding that a new trial could not be ordered until there was a finding the parties could not agree on complete reporter=s record). More importantly, Avi fails to direct us to any part of the voluminous record which shows the parties could not agree on replacements for the lost transcripts of the pretrial proceedings. See Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (finding that an issue unsupported by record reference is waived). In addition, our order of November 11, 2001 granted Avi time to file his brief thirty days after the reporter=s record was filed, because he had so many problems in locating and transcribing the record. Nonetheless, the appellant=s brief was filed on January 14, 2002, and Avi asked that he be entitled to supplement his brief when the trial court reporter filed additional record transcripts. Although it is now more than a year later, our clerk=s office has received no additional transcripts and no agreement, or attempts to agree, on the apparently lost record. The rules of appellate procedure and the case law detail the steps a litigant must take if confronted with a lost record. See Tex. R. App. P. 34.6(f); see also Routier v. State, __ S.W.3d at __, 2003 WL 21185818 at *1 (appeals court had granted motion to correct and clarify the record and remanded case for a trial court hearing); Gaston v. State, 63 S.W.3d 893, 899 (Tex. App.CDallas 2001, no pet.) (trial court made findings of fact); Doubrava v. State, 28 S.W.3d 148, 151 (Tex. App.CEastland 2000, pet. ref=d) (trial court filed conclusion of law after hearing on remand); Pierre v. State, 2 S.W.3d 439, 444 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (judicial findings of fact issued after case abated and remanded). Avi failed to follow these guides and, as a result, he has waived his right to complain of any harm the lost record may have on his appeal.

Accordingly, because Rule 34.6(f) has not been satisfied, Avi is not entitled to a new trial due to a lost, destroyed or unfiled reporter=s record of the pretrial proceedings. The first issue is overruled.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Majority and Concurring Opinions on Rehearing filed September 11, 2003.

Panel consists of Justices Yates, Fowler, and Seymore. (Yates, J. joins this opinion on the first issue).

[1] Avi provided transcripts of three pretrial hearings and two recusal hearings as exhibits to his brief. However, we cannot consider these exhibits as part of the appellate record. See Tex. R. App. P. 34.1, 34.5, 34.6 (contents of appellate record); Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.CHouston [1st Dist.] 1999, no pet.); see also Gabriel v. State, 973 S.W.2d 715, 719 (Tex. App.CWaco 1998, no pet.) (letter attached to appellate brief not part of the record). We note that in the two recusal motions included in the record, Avi complained about alleged bias shown in the trial court=s pretrial comments and rulings. Both motions to recuse were denied. Avi does not assign error to the denial of his motions to recuse.

[2] This appeal was perfected before the Texas Rules of Appellate Procedure were amended, effective January 1, 2003. Rule 34.6(f) was amended to clarify its application to exhibits and require agreement only as to the portion of the text at issue and to provide that the trial court may determine that a copy of an exhibit should be used even if the parties cannot agree. See Tex. R. App. P. 34.6 comments; compare Tex. R. App. P. 34.6(f) (Vernon Special Pamph. 2002) with Tex. R. App. P. 34.6(f) (Vernon 2003).