Austell v. State, 61588
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Writing for the Court | ROBERTS |
| Citation | 638 S.W.2d 888 |
| Parties | Sherrell Gene AUSTELL, Appellant, v. The STATE of Texas, Appellee. |
| Docket Number | No. 61588,61588 |
| Decision Date | 15 September 1982 |
Page 888
v.
The STATE of Texas, Appellee.
En Banc.
Page 889
James P. Finstrom, Dallas, Martin Underwood, Comstock, for appellant.
G. Dixon Mahon, Dist. Atty., Ozona, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
ROBERTS, Judge.
On July 28, 1972, a jury found the appellant guilty of kidnapping for extortion. Since then, the course of the law has not run smooth. The appeal has yet to be resolved; in fact, we hold that it is incapable of resolution. The judgment cannot stand.
On August 3, 1972, when punishment was assessed and the judgment and sentence were entered, 1 the appellant gave notice of appeal and asked the court to order the court reporter to prepare a statement of facts "including all Motions filed the 27th day of July, 1972 before the case was called, all of the voir dire pertaining to the selection of the jury, and all Statements of Facts pertaining to the actual jury trial of said case." The court reporter, in fact, had taken stenographic notes of all those proceedings.
On December 21, 1972, the reporter had not produced the statement of facts. The trial court found that the reporter had a "crowded calendar." It extended the time for filing the appellant's brief until 30 days after receipt of the statement of facts. 2
On January 11, 1973, the appellant escaped from jail. The State moved to dismiss the appeal. 3 Its motion was filed in the trial court, but not in this court. The trial court found that the appeal was "moot" and ordered the county to pay the appellate attorneys' fees. On or about July 25, 1973, the trial court dismissed the appeal. This it had no authority to do, for Article 44.09 of the Code of Criminal Procedure gives only to the appellate courts the authority to dismiss the appeal of a defendant who escapes from custody after he gives notice of appeal. McGee v. State, 445 S.W.2d 187 (Tex.Cr.App.1969).
The record does not show when the appellant returned to custody, but it shows that by January 22, 1975, he had written to the trial court (from the Department of Corrections)
Page 890
requesting a statement of facts, and the trial court had instructed the court reporter to prepare such a statement of facts. By August 8, 1978, he was able to prepare a statement of facts of the jury trial and the hearing on a motion for change of venue, but he had destroyed his notes on the arraignment, the "voir dire jury selection," and the "sentencing proceedings." No statement of facts of these proceedings is available.After some more procedural vicissitudes, 4 the appeal is before us without a statement of facts. The only proceeding which the appellant had originally asked to be transcribed, but which...
To continue reading
Request your trial
-
Harris v. State, 69366
...of a part of the statement of facts which he diligently requested, the appellate court cannot affirm the conviction. Austell v. State, 638 S.W.2d 888, 890 (Tex.Cr.App.1982). See also Gamble v. State, 590 S.W.2d 507 (Tex.Cr.App.1979); Timmons, supra, at 512; Pierson v. State, 147 Tex.Cr.R. 1......
-
84 Hawai'i 211, State v. Bates, 18121
...v. State, 733 S.W.2d 212, 216 (Tex.Crim.App.1987), cert. denied, 506 U.S. 834, 113 S.Ct. 105, 121 L.Ed.2d 63 (1992); Austell v. State, 638 S.W.2d 888, 890 (Tex.Crim.App.1982); Gamble v. State, 590 S.W.2d 507, 509 6 This principle has been followed by various federal and state courts. See Ke......
-
Routier v. State, 72795.
...or only a portion of the record. See, e.g., Harris v. State, 790 S.W.2d 568, 574 (Tex.Crim.App.1989) (pretrial motion); Austell v. State, 638 S.W.2d 888, 890 (Tex. Crim.App.1982) (voir dire examination); Gamble v. State, 590 S.W.2d 507, 509 (Tex. Crim.App.1979) (final arguments); Hartgraves......
-
Broxton v. State, 71488
...to demonstrate due diligence in attempting to secure a complete statement of facts. Id.; Dunn, 733 S.W.2d at 214; Austell v. State, 638 S.W.2d 888, 890 (Tex.Crim.App.1982); Timmons v. State, 586 S.W.2d 509, 512 (Tex.Crim.App.1979). Appellants demonstrate due diligence if they (1) obtain the......