Johnson v. State, 524 S.W.3d 338

Appellant David Johnson Sr. appealed his conviction for sexual assault after the trial court revoked community supervision.
The reporter’s record for the two-day contested adjudication hearing (Jan. 27–28, 2015) was compiled by two different court reporters: Jeannye Skinner (day 1) and Bre-anna (Breana) Short (day 2).
Skinner’s portion was filed; Short’s portion (including testimony of a supervision officer, most exhibits, and Short’s notes/recordings) was not filed and Short could not be located or compelled to produce the record.
The trial court conducted a hearing, made detailed findings that Short’s portion is irretrievable, that appellant timely requested the record, appellant is not at fault, the missing portion is necessary to the appeal, and the parties cannot agree on a replacement.
The State objected (arguing lack of proof that the record is lost/destroyed and that Short might still be compelled), but those objections were filed after the trial court signed the findings.
The court of appeals reviewed the trial court’s factual findings for abuse of discretion and legal conclusions de novo, agreed the missing record is irretrievable and necessary, and reversed and remanded for a new trial under Tex. R. App. P. 34.6(f).

Issue	Appellant's Argument	State's Argument	Held
Whether lost or destroyed reporter’s record (Short’s portion and most exhibits) entitles appellant to a new trial	The missing portion was lost/destroyed through no fault of Johnson; he timely requested the record; the missing testimony/exhibits are necessary and cannot be replaced	No proof the record is lost/destroyed; it may still be produced if Short is personally served or compelled; only one witness and limited exhibits missing	Court held record is lost/irretrievable, necessary to appeal, cannot be replaced, and appellant is entitled to a new trial (reversed and remanded)
Whether the trial court abused its discretion in finding the record irretrievable and necessary	Trial court’s findings were supported by repeated, documented attempts to obtain Short’s portion, Short’s suspension/unlicensed status, and inability of another reporter to recreate the record	Trial court’s conclusion premature; possible to compel Short; objections were untimely	Appellate court found no abuse: factual findings upheld; legal conclusions reviewed de novo and affirmed; new trial warranted

Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013) (framework for harm analysis under lost-record rule)
Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003) (trial court may use other reporters to correct or complete record; contempt powers discussed)
Johnson v. State, 151 S.W.3d 193 (Tex. Crim. App. 2004) (court reporter’s notes are “lost” only if irretrievable)
State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) (standard of review: factual findings for abuse of discretion, legal conclusions de novo)
Bryant v. State, 464 S.W.3d 99 (Tex. App.—Houston [14th Dist.] 2015) (missing record can deprive appellant of meaningful appellate review)