Harley William Fike v. State ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-09-00487-CR William Berry Pierce, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT NO. 5581, HONORABLE JAMES F. CLAWSON JR., JUDGE PRESIDING MEMORANDUM OPINION On June 7, 2010, Lou Ann Lindeman Berry, court reporter for the 33rd District Court, San Saba County, filed an affidavit in this Court stating that all copies of the reporter’s record in this cause have either been deleted or destroyed by a computer virus, that attempts have been made to recover the record from Berry’s computer, and that these attempts have been unsuccessful. We then abated this appeal to allow the trial court to determine whether the reporter’s record can be replaced by agreement of the parties. See Tex. R. App. P. 34.6(f)(4). On August 23, 2010, we received a supplemental record containing the trial court’s findings that the reporter’s record cannot be replaced by agreement of the parties. Because the lost or destroyed record contains the entirety of the appellant’s trial, we conclude that the lost record is necessary to resolution of this appeal. See Tex. R. App. P. 34.6(f)(3). As a result, the appellant is entitled to a new trial. See Tex. R. App. P. 34.6(f). We reverse the judgment of conviction and remand this cause for a new trial. ___________________________________________ Diane M. Henson, Justice Before Justices Patterson, Puryear and Henson Reversed and Remanded Filed: September 22, 2010 Do Not Publish 2