Opinion from the Court of Criminal Appeals on TRAP 34.6

Interesting opinion by the Court of Criminal Appeals on Texas Rule of Appellate Procedure (TRAP) 34.6.  The case concerned a hearing that the parties believed had been transcribed by the court reporter.

According to the Court “[t]he trial court held a hearing on Appellant’s motion for new trial, at which the parties announced that a court reporter was needed, a court reporter was called into the courtroom and appeared to transcribe the proceedings, evidence was offered, and, believing the hearing had been transcribed, the attorneys exchanged contact information with the court reporter.”

But the hearing was not transcribed. TRAP 34.6 provides for a new trial if the reporter’s record has been lost or destroyed.  It makes no provision for a new trial if there never was a record.

The Court of Criminal Appeals followed the language of TRAP 34.6 and found that to use the rule there had to be evidence that the original hearing was actually transcribed–which did not occur in this case.  And the Court held that a new trial under TRAP 34.6 was improper.

There were dissents. The Rules Committee might look at this in its upcoming sessions and amend the rule to account for this decision.

Reference: IN THE COURT OF CRIMINAL APPEALS OF TEXAS