*2 WHITHAM, [by ROWE and firms that then “I was advised BAKER, provided I audio that had been all librarian] apply except 1. All future references to "Rules” will refer to continue to to the extent inconsist- Nothing TEX.R.APP.P. ren- ent with the order. 50 or ders ineffective the 2. 11 of this order that all later discussed. rules shall civil actions appellant, at Appellant’s Request. The herein.” prescribed show, perfect- time however, or before the fails affidavit ing the shall appeal, make written particular follow-up request was made designat- for the last time official ing the evidence and oth- significant omission is November proceedings to be included therein. er subsequent affidavit from because of copy be filed with of such stating tapes are that these librarian *3 the clerk of the trial court another possession. still in his (Our emphasis) served on the pro upon Darley to It is incumbent 53(a) important this in Rule is case sup vide this Court with a record which First, requires a ways. the Rule three 50(d). At ports claim for relief. Rule his Darley request, which admitted written best, only frus Darley’s affidavit shows a a argument made and is not oral was never pro attempt the trated obtain of Thus, Darley appeal. part of our record is not ceedings from an librarian who prerequi- the first has failed to meet Rule’s court shown to have been the “official” Second, implicit makes the site. the Rule i.e., respon reporter, person directly request only appellant may notion that an making trial full record of the sible for a the statement of facts. portions of question. espe proceedings in We note case, reason being the there would be no cially not show affidavit does 50(e) alleged relief Rule if the under placed kind definitively what of he portion the destroyed lost or of statement missing portion of the evidence. for the part requested facts not of meet In case seeks relief record. has failed to this this showing 50(e) Rule not provides: requisite Rule which in the explicitly designated for inclusion he the Record. When Destroyed Lost or facts the November 25 statement of is lost or or thereof record Third, missing. he now are maintains destroyed may it be substituted is specifies that the official Rule so substituted when designated request person to whom the prepared transmitted record to whom to be made. The audio librarian is as in cases. court other quali- attorney spoke had not been Daley’s re- timely made If has person. being this fied as of but statement and records reporter’s *4 corded, Court relieved request obligation from the
lants of Rule
53(a). opinion denied relief to
because of his failure to meet this Rule
53(a) obligation. disagree Darley’s present with obligation
tention. The report- of the court
er to file the statement of facts is not duty with the fallback
appellant supervise police the court
reporter's compliance. comparable situa- respect transcript.
tion exists with to the
While the clerk preparing has the transcript filing it with the court of
appeals, is burdened with the
obligation ascertaining
pared and filed in a form sufficient
present to court those errors
sought 50(d) to be reviewed. Rules See 51(b). Similarly, appeals this,
statement of facts in such as responsibilities of the court joint,
and the not different. 53(k). Accordingly, Darley’s
See mo- rehearing
tion for is overruled. Wise,
Douglas Austin, C. Earle, Booras, Atty., Ronald Dist. Laurie Austin, Atty., Asst. Dist. POWERS, BRADY and
CARROLL,
PER CURIAM. appellant guilty The district robbery punishment, and assessed en- convictions, previous felony hanced two imprisonment years. for 28 Tex.Pen. notes reasons, Darley has For the above stated destroyed without been lost or providing a of failed to meet his burden fault, is entitled to lant’s him new to a appeal entitles record agree on the parties unless new trial is that it He has not demonstrated trial. statement facts. possible him obtain some not properly he of facts which of the statement clearly demonstrated, is As it not State, requested. See Castillo us whether the record before Antonio (Tex.App. 2d 561-562 lost or is facts statement —San 1987, no pet.). ultimate destroyed. We do not reach that Dar- issue, however, find that fact since we overruled, is Darley’s only of error bur- prerequisite ley has failed meet the affirmed. the trial court’s requested properly showing he den of FOR portion. lost OPINION ON MOTION REHEARING seeking 50(e) requires party Rule opinion holds that none original by way of new trial because relief are 53 rendered first have destroyed lost or 8, 1986 by the timely for the statement ineffective “made a pertaining to Texas must be which of facts.” motion proceedings. his tape 53(a). That described in Darley questions correct- rehearing, provides: holding point. Darley ness of our on this Paragraph SMITH, contends that the order Cooper Appellant, William (a) directly conflicts with subsection of this rule and cancels its effectiveness because Texas, STATE exception appearing Paragraph of the order. 11 of the order No. 3-87-098-CR. provides that all rules Court of apply in civil actions shall continue to ex- Austin. cept to the extent with the According Darley, Paragraph order. June mandates, pertinent part, that the court reporter shall file the statement of facts appeals. Darley argues with the court of by placing this court re- porter when trial