Dionicio Contreras DURAN, Appellant, v. The STATE of Texas, Appellee, 868 S.W.2d 879

OPINION OSBORN, Chief Justice. Dionicio Duran appeals from a conviction for the offense of theft over $200 but less than $750. Upon a plea of guilt, the court assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of life. The plea and sentencing occurred in January 1983. On January 4, 1993, the Court of Criminal Appeals granted Duran an out-of-time appeal on the ground that Duran was not advised by his trial attorney of his right to appeal his open plea of guilt. We reverse the trial court conviction and remand.

DISCUSSION In his second point of error, Duran argues that he is entitled to a reversal of his conviction and a new trial because the court reporter’s notes from his 1983 plea proceeding have been lost or destroyed through no fault of Duran. Duran relies upon Texas Rule of Appellate Procedure 50(e). In order to prevail under Ride 50(e), Duran must show first that he made a timely request for a statement of facts and, second, that the court reporter’s notes and records have been lost or destroyed without Duran’s fault.

In addition to the explicit requirements of Rule 50(e), the Court of Criminal Appeals has required appellants to show due diligence in attempting to secure a complete statement of facts. See Culton v. State, 852 S.W.2d 512, 514 (Tex.Crim.App.1993); Gibbs v. State, 819 S.W.2d 821, 828 (Tex.Crim.App.1991). One method whereby an appellant can demonstrate due diligence is to obtain an affidavit from the court reporter explaining the absence of the missing portion of the record and file a motion to supplement the record supported by affidavit(s). Culton, 852 S.W.2d at 515.

In this case, the record contains affidavits from the current court reporter of the 210th District Court and the individual who was the court reporter for that court at the time of Duran’s plea, indicating their diligent but unsuccessful efforts to locate the notes from that proceeding. The affidavit from the reporter for the court in 1982 states that she did take the notes in the ease near the end of 1982. This is not a case where no court reporter was present at the time of the plea.

From our review of this record, we conclude that Duran has demonstrated all legally required due diligence in attempting to obtain a statement of facts, and his failure to obtain such a statement is not through the fault of Duran or his attorney. The State argues that Rule 50(e) “presents an absurdity” when read in conjunction with

Section 52.046(a)(4) of the Government Code. This

section of the Government Code states the duties and powers of court reporters, and provides in pertinent part: § 52.046. General Powers and Duties (

a) On request, an official court reporter shall: (4) preserve the notes for future reference for three years from the date on which they were taken.... Tex.Gov’t Code Ann. § 52.046 (Vernon 1988). The State argues that since Duran did not request his statement of facts until ten years after his plea of guilt and the court reporter had the authority to destroy her notes three years after the plea, a decision on the part of this Court to grant a reversal and new trial would be “nonsensical.” We note that the Court of Criminal Appeals has acknowledged the tension between

Section 52.046(a)(4) of the Government Code and Tex.R.App.P. 50(

e) on at least two occasions. First, the Court addressed this issue in the context of a probation revocation in Corley v. State, 782 S.W.2d 859 (Tex.Crim.App.1989). In that case, after a nolo conten-dere plea in 1977, Corley was found guilty of sexual abuse of a child and placed on ten years’ probation, which was revoked shortly before the expiration of the ten year period. While preparing for appeal of that revocation, Corley discovered that the court reporter’s notes covering the original hearing had been destroyed and no statement of facts could be prepared. Id. at 860.

The Corley Court held that Corley’s attempt to designate the statement of facts from the original plea hearing was untimely when made after the court reporter had destroyed her notes as permitted by

Section 52.046. Id. at 861. In so holding, the Court reasoned, “If we were to read Rule 50(

e) as appellant wishes us to, each time a defendant’s probation is revoked after a three year period, the defendant would automatically be entitled to a new trial even though the court reporter’s notes have been properly destroyed.” Id. The Court noted, however, that Corley’s appeal was from the order revoking probation and not from the original plea hearing. Corley, 782 S.W.2d at 860. In Culton v. State, 852 S.W.2d 512, 513 (Tex.Crim.App.1993), the appellant had pleaded no contest to a charge of aggravated sexual assault in 1987 and received deferred adjudication.

When Culton was adjudicated guilty in 1990 and sentenced to twelve years’ imprisonment, he appealed his conviction for aggravated sexual assault. Id. at 513-14. The court of appeals reversed Culton’s 1987 conviction and remanded for a new trial because the statement of facts from the 1987 plea proceeding was not part of the record on appeal. Culton v. State, 818 S.W.2d 839 (Tex.App.-Houston [1st Dist.] 1991). The Court of Criminal Appeals granted the State’s petition for discretionary review to determine whether Culton had met his evi-dentiary burden under Texas Rules of Appellate Procedure 50(

d) and 50(e). Culton, 852 S.W.2d at 514. The Court found that Culton had not demonstrated due diligence in obtaining a statement of facts since nothing in the appellate record showed that Culton had contacted the court reporter of the appropriate district court or explained that the statement of facts was missing because the notes and records were lost or destroyed through no fault of Culton. Id, at 515.

Justice Miller’s dissenting opinion in Cul-ton directly voiced the concern presented by the State in the present cause: In this case, the State did not move to adjudicate appellant’s guilt until more than three years after appellant’s no contest hearing. Apparently, the court reporter was within her authority, pursuant to Sec. 52.046(a)(4), to destroy the notes from the no contest plea. Under Tex.R.App.Proc. 50(e), an appellant is entitled to a new trial if the court reporter’s notes are lost or destroyed without appellant’s fault.

The possible interplay of these two provisions presents this Court with some unanswered questions, viz: (1) is the appellant entitled to a new trial under Rule 50(

e) when the court reporter destroys his or her notes pursuant to Sec. 52.046(a)(4); and (2) how do we reconcile these two provisions. Culton, 852 S.W.2d at 516 (Miller, J., dissenting). Justice Miller merely stated the issue, however, without suggesting a resolution. Though Cuitan and Corley raise the question of the interplay between Rule 50(

e) and

Section 52.046(a)(4), they do not resolve it and offer no guidance under the facts of the present cause. In this cause, Duran filed a post-conviction application for writ of habeas corpus with the Court of Criminal Appeals alleging that he was denied effective assistance of counsel because his trial counsel failed to inform him of his right to appeal. Ex Parte Duran, No. 71,563 (Tex.Crim.App., December 16, 1992, per curiam) (not designated for publication).

After finding that Duran is entitled to an out-of-time appeal, the Court instructed: [T]he judgment in Cause Number 38645-210, in the 210th Judicial District Court of El Paso County, is vacated, so that applicant can be returned to the point in time at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues.

We hold that should applicant desire to prosecute an appeal, he must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued. [Emphasis added]. The mandate issued on January 4,1993. Duran timely filed notice of appeal and his appeal was reinstated on January 25, 1993. We concluded earlier in this opinion that Duran has demonstrated his due diligence in attempting to obtain a statement of facts, so this cause is distinguishable from Culton.

Neither does this case compare to Corley, in which the statement of facts from the underlying plea was deemed not pertinent to the appeal on the probation revocation. It is of no benefit to Duran for the Court of Criminal Appeals to return him to the point in time in which he can give notice of appeal and then allow the absent statement of facts to bring that process to a halt. His ineffective assistance claim cannot be properly briefed absent a statement of facts.

Under the facts of this case, we conclude that Duran is entitled to reversal of his conviction and a new trial on the ground that the court reporter’s notes from Duran’s 1983 plea proceeding have been lost or destroyed through no fault of Duran. Tex.R.App.P. 50(e). We sustain Duran’s second point of error. Given our disposition on this point of error, we do not consider Duran’s first point of error. DISPOSITION We reverse the trial court conviction and remand. . Rule 50 states in relevant part: (

d) Burden on Appellant — The burden is on the appellant, or other party seeking review, to see that a sufficient record is presented to show error requiring reversal. (

e) Lost or Destroyed Record — When the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the appellate court as in other cases. If the appellant has made a timely request for a statement of facts, but the court reporter's notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts. TexR.App.P. 50(

d) and (e). . The State neither mentions nor appears to consider Texas Rule of Appellate Procedure 11(

d) which requires court reporters, in a case where no appeal is taken and in which a defendant is convicted and sentenced to a term of more than two years, to file their non-transcribed notes with the district clerk within twenty days following the expiration of the time for perfecting appeal. See TexR.App.P. 11(d). . Two appellate court cases have arrived at contrary results. See Martinez v. State, 802 S.W.2d 105 (Tex.App.—Amarillo 1990, no pet.) and McLennan v. State, 796 S.W.2d 324 (Tex.App.—San Antonio 1990, pet. ref'd).

In both cases, the appellants were adjudicated guilty more than three years after receiving deferred adjudication on pleas of guilt or nolo contendere. Martinez, 802 S.W.2d at 106; McLennan, 796 S.W.2d at 324. In these cases, the appellants had made timely, written requests to the court reporters who had recorded the original plea proceedings for the statement of facts from those proceedings. Martinez, 802 S.W.2d at 106; McLennan, 796 S.W.2d at 325-26.

Both convictions were reversed on the ground that the appellants carried the burden of showing an inability to obtain the statement of facts through no fault of their own. Martinez, 802 S.W.2d at 108; McLennan, 796 S.W.2d at 326-27.