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Click here for the full text of this decision FACTS:Appellant was convicted of various offenses and placed on probation. His probations were later revoked, and he appealed. Although appellant timely requested the preparation of the record, the court reporter failed to prepare and file the record in a timely fashion. The court of appeals handed down an opinion reversing the probation revocations and remanding the cases for a new hearing. The court of appeals denied the state’s motion for extension of time to file a motion for rehearing on the ground that the reporter’s record was not available before the fifteen day period for filing a motion for rehearing had expired. HOLDING:Reversed and remanded. Texas Rule of Appellate Procedure 34.6(f) entitles an appellant to a new trial under certain conditions, one of which is that “without appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed.” As can be seen from Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003) and Payne v. State, 802 S.W.2d 686 (Tex. Crim. App. 1990), the court reporter’s repeated failure to file the record does not, by itself, provide a sufficient basis for concluding that the court reporter’s notes and records have been “lost or destroyed,” so as to justify granting a new trial. An appellate court can and should exercise its contempt power to compel an errant court reporter to prepare and file the record. The Rules of Appellate Procedure also give appellate courts the power to take other actions designed to ensure the preparation and filing of the record, including the appointment of a substitute court reporter to prepare and file the record from the original court reporter’s notes. A court reporter’s notes and records, or portions thereof, can be considered “lost” only if the missing portions of the appellate record are irretrievable. Even without considering the state’s motion for rehearing, the court concludes that the court of appeals erred. The court of appeals had no evidence that the court reporter’s notes and records were actually “lost or destroyed,” the court concludes. It therefore erred in ordering a new revocation hearing. OPINION:Keller, P.J., delivered the opinion of the court.

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