Culton v. State, 115-92

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 852 S.W.2d 512
• Docket Number: No. 115-92,115-92
• Parties: Brian Edward CULTON, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 31 March 1993

Page 512

852 S.W.2d 512 Brian Edward CULTON, Appellant,
v.
The STATE of Texas, Appellee. No. 115-92. Court of Criminal Appeals of Texas,
En Banc. March 31, 1993.
Rehearing Denied May 5, 1993.

Page 513

Linda G. Cryer, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Alan Curry and Randy Ayers, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

On February 23, 1987, appellant pled no contest to aggravated sexual assault in the 176th District Court of Harris County. Appellant received deferred adjudication in return for his plea of no contest. On April 3, 1990, the State filed a motion to adjudicate guilt in the 176th District Court. The case was subsequently transferred to the 248th District Court of Harris County. On July 10, 1990, appellant was adjudicated guilty and sentenced to imprisonment for twelve years.

Page 514

Appellant appealed the conviction for aggravated sexual assault. The court of appeals reversed the 1987 conviction and remanded for a new trial because the statement of facts from the 1987 plea proceeding, in which appellant pled no contest, was not part of the record on appeal. Culton v. State, 818 S.W.2d 839 (Tex.App.--Houston [1st Dist.] 1991). We granted the State's petition for discretionary review to determine whether appellant had met his evidentiary burden under Texas Rule of Appellate Procedure 50(d) and 50(e). ¹

On July 10, 1990, appellant timely filed a notice of appeal of the conviction for aggravated sexual assault. The notice of appeal was filed in the 248th District Court, and the trial judge ordered the court reporter of the 248th District Court to "prepare a statement of facts in question and answer form of the testimony in said cause." Although the underlying conviction was in the 176th District Court, appellant designated the record on appeal and made a written request for a statement of facts to the court reporter of the 248th District Court. This request for a statement of facts was made, in writing, on July 13, 1990.

The statement of facts from the 1987 plea proceeding in the 176th District Court was omitted from the record filed by the court reporter of the 248th District Court. Based upon evidence not properly part of the record on appeal, it appears that the notes and records from the 1987 plea proceeding are lost.

Appellant's only point of error presented to the court of appeals asserted that he was entitled to a reversal of his 1987 conviction and a new trial because the statement of facts from the 1987 plea proceeding was lost or destroyed through no fault of his own. The court of appeals reversed the conviction and remanded for a new trial. The court of appeals held, "in light of the [248th District Court] judge's order, timely notice to the official court reporter of the 248th was timely notice to all court reporters taking testimony under the same cause." Culton v. State, 818 S.W.2d 839, 841 (Tex.App.--Houston [1st Dist.] 1991).

In order to prevail under Rule 50(e), ² an appellant must show (1) that he made a timely request for a statement of facts and (2) that the court reporter's notes and records have been lost or destroyed without appellant's fault. Under Rule 53(a), a "timely request" is a request made in writing to the official court reporter on or at the time prescribed for perfecting the appeal. ³

In addition to the explicit requirements of Rule 50(e), this Court has required appellants to show due diligence in attempting to secure a complete statement of facts. See Dunn v. State, 733 S.W.2d 212, 215 (Tex.Cr.App.1987). At the time Dunn was decided, Article 40.09 V.A.C.C.P. was still in effect, but the principles discussed in Dunn apply to analyses under Rule 50(e). See Gibbs v. State, 819 S.W.2d 821, 828 (Tex.Cr.App.1991).

Page 515

In the instant case, the court of appeals found that timely notice to the official court reporter of the 248th District Court served as adequate notice to the official court reporter of the 176th District Court, and that under these particular circumstances, appellant was entitled to reversal because of his inability to obtain the 1987 statement of facts. Culton v. State, 818 S.W.2d 839, 842 (Tex.App.--Houston [1st Dist.] 1991).

When a trial judge orders his court reporter to prepare the entire record on appeal, a timely request to that court reporter is sufficient to comply with the timely request requirement mandated by Rule 50(e). In this respect, we agree with the court of appeals. On July 10, 1990, the 248th District Court adjudicated guilt and imposed a sentence of imprisonment for twelve years. On July 13, 1990,...