Robert Lee Mitchell v. The State of Texas--Appeal from 13th District Court of Navarro County

REVERSED & REMANDED

FEBRUARY 22, 1990

NO. 10-88-092-CR

Trial Court

# 22,241

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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ROBERT LEE MITCHELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 13th Judicial District Court

Navarro County, Texas

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O P I N I O N

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This appeal from conviction for possession of a controlled substance was perfected April 29, 1988, and the transcript was filed in this court on May 25, 1988. Appellant's attorney and the trial court were notified by this court on September 8, 1988, that no statement of facts had been received or filed.

By order of this court dated January 18, 1990, the appeal was abated and the trial court was directed to conduct a hearing pursuant to Rule 53(m), Texas Rules of Appellate Procedure, to determine whether Appellant had been deprived of a statement of facts for any reason and to make findings of fact and conclusions of law following the hearing to be certified and transmitted to this court; Appellant through counsel had previously filed a motion in this court under Rule 53(m) stating that the trial court had informed Appellant's counsel that the statement of facts could not be produced for filing because the court reporter's notes had been lost or were otherwise unavailable.

Pursuant to this court's January 18, 1990 order, certified findings and conclusions of the trial court were filed in this court on February 13, 1990. The findings and conclusions made by the trial court were based upon the affidavit of the official court reporter of the 13th Judicial District Court, Navarro County, which was presented to the court by agreement of the parties, a true and correct copy of said affidavit being attached to the trial court's findings and conclusions.

The trial court found that (1) Appellant properly requested the official court reporter to prepare a statement of facts; (2) the official court reporter has made a diligent search for her original shorthand notes; (3) the court reporter's shorthand notes have been lost or are otherwise not available; and (4) because of the unavailability of the court reporter's notes, the official court reporter who participated in the trial of this cause is not able to prepare and file a statement of facts on appeal.

The trial court concluded that Appellant has been deprived of a statement of facts of the trial of this cause because the original shorthand notes are lost or otherwise unavailable.

Based upon the findings and conclusions of the trial court and pursuant to Rule 50(e) of the Texas Rules of Appellate Procedure, this court is compelled to and does hereby reverse this case and grant Appellant a new trial, it appearing that the court reporter's notes and records have been lost or destroyed without Appellant's fault.

Accordingly, this cause is reversed and remanded to the trial court for further proceedings consistent with this opinion.

PER CURIAM

DO NOT PUBLISH