I have a MTR set for friday. Defense counsel claims that since no reporter's record exists for the sentencing hearing (which was over 7 years ago), we cannot proceed on the MTR. The reporter from back then died and there is no RR. Defendant was previously on a deferred which was revoked and he is now on regular probation. No record exists from the sentencing hearing.

Is the loss of that record grounds for appeal? Can I still proceed on the MTR?

Many thanks for you help!

A complaint about a missing portion of the record is controlled by TEX. R. APP. P. 34.6(f).

Since he cannot complain about any trial court action in the hearing 7 years ago, I don't think he has a claim under 34.6(f). Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000).

Jessup v. State, No. 04-02-00892-CR, 2003 WL 22903017 at *1 (Tex.App. -- San Antonio December 10, 2003, pet. ref’d) (not designated for publication) (rejecting claim that original plea hearing record was needed because there was a dispute about length of probation).

You do have the written conditions of probation?

The judgements and sentences, as well as the accompanying conditions of probation, are all you need to revoke. All are contained in the clerk's file. I see no problem but a non-creative defense argument.

thanks for the info!

What makes this a bit unusual, and what concerns me, is that when D was put on the regular probation he also got pen time in another case. When he got his pen time he was immmediately shipped off to TDCJ. The judgment and sentence from the probation case was signed by the judge about three weeks AFTER the guy got shipped off, though the sentencing hearing was done the day of the shipping.

D was only just served with his probation conditions about 4 years later, when he got out of prison and he started serving the probation. D is now claiming that the written conditions do not comport with what the oral sentence was, that there are many different conditions (plus the inclusion of a fine) that D was not aware of, nor did he agree to. Neither D's thumb print nor signature are on the probation conditions.

Q1: Does the fact that D was not timely served with the conditions hurt? Since the time to appeal long since has lapsed, D's attorney is saying he's thinking about filing for an out of time appeal, which would totally screw up my MTR. Can he get one?

Q2: What obligation does the court or clerk have to timely serve a defendant with the conditions? In a civil case there is an absolute duty, but I could not find anything with Westlaw.

I read the San Antonio case cited above, but the facts are dissimilar so i don't believe it would apply.

many thanks!

DOES ANYBODY HAVE ANY IDEAS HERE?

I do not believe that the Daniels case applies here because the defense attorney is complaining that the part of the RR that is lost does not deal with the adjudication decision, only the sentencing portion (which took place on a date after the adjudiciation was done).

The absence of a record from sentencing should not affect a revocation. Nothing in 42.12 requires there be a record of the sentencing in order to revoke. If he want to raise a claim that the TC in the judgment are different from the TC pronounced, he's had years to do so. Let him testify to that. You can cross. And you can rebut with testimony from the judge or PO that the TC pronounced are what goes in the judgment. Then let him appeal when he gets revoked.

The presumption of regularity in the original judgment should get you past any complaint on that, and as for the conditions of probation, I'd look at two things: 1) is he being revoked for any violation of the conditions that he is complaining about? If the violations are on standard conditions like reporting and not committing a new offense, then he can't complain that other conditions were put on him that you aren't revoking him over. 2) Assuming for the sake of argument that he can make a credible showing that the conditions of probation are different that what he agreed to, are they the type of conditions that he would have been expected to have complained about sooner? For example, if I were on probation and the conditions were being explained to me and I was going to be required to complete a 6-month inpatient program that I had not agreed to in my plea bargain, I wouldn't wait until my revocation hearing to question the court's authority to order it.

No, these were not the standard conditions. He filed for a writ under 11.072, which is pending in the COA. So he complined of them timely. (Like i said earlier, he was sent to the pen and also placed on probation, when he got out of the pen he was only then served with the conditions). What now?

If he filed the writ, I guess you let him have his hearing, the judge finds that the conditions were properly placed on him as being part of the original judgment, you conduct your MTR, and he goes back to the pen.

Was there any kind of written agreement as to the plea bargain conditions themselves? Or were the conditions simply left open to the court?

The failure to object (or the agreement) to the conditions should waive any ability to appeal or challenge by writ. Defendant doesn't get to delay his claims until he has violated probation. This is the sort of nonsense that drives the public crazy.

The objection to the conditions was filed prior to the MTR, about ten months ago. There was no agreement as to these conditions.