Misdemeanor plea done before an associate judge. There is no court reporter, but rather the Court makes an audio recording of every hearing/plea. Defendant pleas to probation. Now facing potential revocation, Defendant is filing Habeas writ attempting to set aside original plea on the grounds that Defendant (pro se at the time) was not properly admonished about immigration consequences. Audio record contains clear, full, and proper admonishments.

In a hearing before the elected Court (or eventual appeal), how does one enter the audio of that plea as part of the Court's record? I've received conflicting answers. I've heard that the Associate Judge simply adds a copy of the recording into the Court's file. I've heard from others that the Associate Judge provides the audio to the Court Reporter, who turns it into a transcript, which the Associate Judge then certifies, after which is is a record the same as if the Reporter had made it contemporaneous with the hearing. Neither side has been able to point to any authority.

Does anyone have any experience/information they could share? Much appreciated.

My best experience in this comes from recent experience in Arizona in which most misdemeanor matters are audio recorded rather than having a court reporter. In cases where there was an appeal we had the audio transcribed and certified. That was what was then used at all levels of appeal.

There are rules in place for records produced by an official court recorder. Is that not what this is? What about your plea papers, don't they contain written admonishments?

That's where I need help. I'm admittedly behind the curve on the rules regarding court records. Here's what I've found, which confuses me a little.

Govt. Code 54A.110 and 54A.211 provide that a court report can be used in an associate court, but if no reporter the court can record the proceedings in any manner necessary. Those two statutes, however, respectively apply only to Subchapters regarding civil and probate matters.

Govt. Code 54A.010, which is the applicable statute for the Subchapter on criminal matters, simply says that a court shall provide a report on the request of a party. This is no additional authority for alternate recording as in the civil and probate statutes.

Purely from an evidentiary standpoint, the audio can be authenticated and isn't hearsay as it isn't offered for the truth of the matter asserted but rather the effect on the listener, but I would prefer not to have to put the associate judge or someone else that was present at the hearing on the stand. I will if necessary, of course.

As for the paperwork -- there are no immigration admonishments on the paperwork we were using at the time (several years ago). From my reconstruction of the situation, we did not know that the defendant was a foreign national until the Court asked for his place of birth during the plea, which then triggered her to go through the full oral admonishments.

Could you have a court reporter transcribe the recording now and submit that transcript, per In re: EDM, 2010 WL 3418211?

Thanks for the citation. In a roundabout way, it has led by back to the break between criminal and civil proceedings.

In EDM, the COA said it could not consider the audio recording because there was no Supreme Court order/rule allowing for it, which is required. Brazos County DOES have such an order, in effect since 1990, however it again only applies to civil cases.

I feel either I'm missing something obvious or we're just not doing this right in our county. The audio recording can obviously be helpful for someone who might need to refresh their memory before testifying as to what happened in a hearing, but I don't see a way in a criminal case to make that audio recording, or a transcript thereof, a/part of a "reporter's record" for the purposes of appellate review. Sounds like the best option is to make a record at an evidentiary hearing with a witness (either the associate judge or the prosecutor who was the bench) testifying as to what happened, their memory crisp and clear thanks to the audio.