Rule 38.5 - Appendix for Cases Recorded ElectronicallyIn cases where the proceedings were electronically recorded, the following rules apply:
(a)Appendix. (1) In General. At or before the time a party's brief is due, the party must file one copy of an appendix containing a transcription of all portions of the recording that the party considers relevant to the appellate issues or points. Unless another party objects, the transcription will be presumed accurate.(2) Repetition Not Required. A party's appendix need not repeat evidence included in any previously filed appendix.(3) Form. The form of the appendix and transcription must conform to any specifications of the Supreme Court and Court of Criminal Appeals concerning the form of the reporter's record except that it need not have the reporter's certificate.(4) Notice. At the time the appendix is filed, the party must give written notice of the filing to all parties to the trial court's judgment or order. The notice must specify, by referring to the index numbers in the court recorder's logs, those parts of the recording that are included in the appendix. The filing party need not serve a copy of the appendix but must make a copy available to all parties for inspection and copying.(b)Presumptions. The same presumptions that apply to a partial reporter's record under Rule 34.6(c)(4) apply to the parties' appendixes. The appellate court need not review any part of the electronic recording.(c)Supplemental Appendix. The appellate court may direct or allow a party to file a supplemental appendix containing a transcription of additional portions of the recording.(d)Inability to Pay. A party who cannot pay the cost of an appendix must file the affidavit provided for by Rule 20. The party must also state in the affidavit or a supplemental affidavit that the party has neither the access to the equipment necessary nor the skill necessary to prepare the appendix. If a contest to the affidavit is not sustained by written order, the court recorder must transcribe or have transcribed those portions of the recording that the party designates and must file the transcription as that party's appendix, along with all exhibits.(e)Inaccuracies. (1) Correction by Agreement. The parties may agree to correct an inaccuracy in the transcription of the recording.(2) Correction by Appellate or Trial Court. If the parties dispute whether an electronic recording or transcription accurately discloses what occurred in the trial court but cannot agree on corrections, the appellate court may: (A) settle the dispute by reviewing the recording; or(B) submit the dispute to the trial court, which must - after notice and hearing - settle the dispute and ensure that the recording or transcription is made to conform to what occurred in the trial court.(f)Costs. The actual expense of preparing the appendixes or the amount prescribed for official reporters, whichever is less, is taxed as costs. The appellate court may disallow the cost of any portion of the appendixes that it considers surplusage or that does not conform to any specifications prescribed by the Supreme Court or Court of Criminal Appeals.