Dirck v. State, 54370

• Decision Date: 17 May 1978
• Docket Number: No. 54370,No. 3,54370,3
• Citation: 579 S.W.2d 198
• Parties: Joe Riley DIRCK, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 198

579 S.W.2d 198

Joe Riley DIRCK, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 54370.

Court of Criminal Appeals of Texas, Panel No. 3.

May 17, 1978.

On Rehearing April 18, 1979.

Warren E. Hancock, Jr., Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Henry K. Oncken, Asst. Dist. Attys., Houston, for the State.

Before ROBERTS, ODOM and TOM G. DAVIS, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault. Appellant was found guilty of this offense as a lesser included offense on an indictment charging murder with malice. Punishment was assessed by the jury at a $1,000 fine and two years in jail.

In his first six grounds of error appellant contends error was committed in the instructions to the jury. Objections were dictated to the court reporter and included in the transcribed court reporter's notes in this record, along with the testimony, jury arguments, and other trial proceedings. The transcribed court reporter's notes of the objections were not endorsed with the Court's ruling and official signature.

Article 36.14, V.A.C.C.P., governs the procedure for making objections to the court's charge and presenting them on appeal. It has long required that such objections be in writing. In 1975 it was amended by adding this sentence:

"The requirement that the objections to the court's charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of and with the consent of the court, before the reading of the court's charge to the jury, and are subsequently transcribed, Endorsed with the court's ruling and official signature, and filed with the clerk in time to be included in the transcript." (Emphasis added.)

Appellant failed to comply with the mandatory provisions of the statute in presenting his objections for the appellate record. ¹ It is not sufficient just to secure permission of the court and dictate to the court reporter objections to the charge. The subsequent steps under the quoted provision must also be followed. That was not done here. The objections present nothing for review.

In his remaining ground of error appellant contends the trial court erroneously excluded the testimony of a defense witness. The rule had been invoked (Art. 36.03, V.A.C.C.P.) and one of appellant's witnesses was present during some of the testimony. When the witness was called to testify, the State objected for violation of the rule, and the court sustained the objection. Appellant made his bill of exception showing what the testimony would have been. The witness would have testified to events occurring in Missouri some time before the offense, which was committed in Houston. The materiality of the excluded testimony was tangential at best.

The matter of enforcement of the rule lies in the sound discretion of the trial court. Art. 36.04, V.A.C.C.P.; Barnes v. State, Tex.Cr.App., 520 S.W.2d 401; Marshburn v. State, Tex.Cr.App., 491 S.W.2d 663; Smith v. State, Tex.Cr.App., 472 S.W.2d 121. No abuse of discretion is shown here and the ground of error is overruled.

The judgment is affirmed.

Before the Court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ONION, Presiding Judge.

The panel opinion on original submission refused to consider appellant's objections to the court's charge at the guilt stage of the trial because his counsel had orally dictated the objections to the court reporter and that he did not subsequently have the same transcribed "and endorsed with the court's ruling and official signature, and filed with the clerk in time to be included in the transcript" in accordance with the 1975 amendment to Article 36.14, V.A.C.C.P. The holding is in accord with the opinion on original submission in Jewell v. State(Tex.Cr.App.1979) (# 58,315-# 58,321, 11/29/78), ¹ but in conflict with the panel opinions in Walton v. State, 575 S.W.2d 25 (Tex.Cr.App.1978), and Frazier v. State, 576 S.W.2d 617 (Tex.Cr.App.1978). This necessitates considering the question here presented en banc on rehearing.

Appellant urges on rehearing that his counsel orally dictated the objections to the court reporter with the consent of the trial court, and in its presence, that the court ruled on such objections at the time prior to the reading of the charge to the jury, that the objections and the court's rulings thereafter were transcribed and made a part of the transcription of the court reporter's notes which were filed with the clerk of the trial court, and the entire record was later approved, without objections from either party, with the official signature of the trial judge.

Appellant argues that there was substantial compliance with the 1975 amendment to Article 36.14, supra, ² that the trial judge was not misled or "sandbagged," and that the objections to the charge are clearly before this court and understandable. ³

Perhaps a look at the history of Article 36.14, V.A.C.C.P., might prove interesting in light of the question presented.

Article 36.14, V.A.C.C.P., came into being as part of the revision of the Code of Criminal Procedure in 1965 (Acts 1965, 59th Leg., Vol. 2, p. 317, ch. 722). It was a restatement of former Article 658, V.A.C.C.P., 1925, which required the objections to the court's charge to be in writing and presented to the court prior to the reading of the charge to the jury. As a result of the past decisions of this court that a defendant must except to the overruling of his objections to the charge in order to preserve error, two sentences were added at the end of the former statute in the revision. Article 36.14, supra, as enacted in 1965, read as follows:

"Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts, and in no event shall it be necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge, as herein provided. Compliance with the provisions of this Article is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof. In no event shall it be necessary for the defendant to except to the action of the court in over-ruling defendant's exceptions or objections to the charge." (Emphasis supplied.)

As noted in the Special Commentary to said Article 36.14, the requirements of the statute should be compared with the provisions of Article 40.09, § 4, V.A.C.C.P., 1965, that the court reporter shall take shorthand notes of all trial proceedings, including objections to the charge, and that such notes certified to by the reporter and included in the record shall establish the occurrence and existence of all objections and exceptions to the court's action and refusals of the court to act and other events thereby shown, and no further proof of the occurrence or the existence of the same shall be necessary on appeal.

However, in Smith v. State, 415 S.W.2d 206 (Tex.Cr.App.1967), this court (without reasoning) held that the requirements of said Article 36.14 would control over the provisions of Article 40.09, § 4, supra. In Seefurth v. State, 422 S.W.2d 931 (Tex.Cr.App.1967), the court in reviewing said Article 36.14 and its predecessors noted the statute was mandatory and that there must be strict compliance with its provisions, and observed that the real purpose of the statute was to enable the trial judge to know in what respect the defendant regarded the charge defective and to afford him an opportunity to correct it before reading the charge to the jury. The trial judge should not be "sandbagged" resulting in unnecessary reversals.

Under the former 1925 Code of Criminal Procedure, juries in felony cases were not permitted to separate after they had been sworn and impaneled until they had returned a verdict "unless by permission of the court, with the consent of the attorney representing the State and the defendant, and in charge of an officer." Article 668, V.A.C.C.P., 1925.

In light of the requirement that objections to the charge be in writing, much time was consumed while the jury remained sequestered. This was so because the attorneys frequently would request time to repair to their offices to prepare and reduce to writing their objections in order to comply with the statute. The time consumed often resulted in night sessions or delay of the trial until the next day with the jurors being sequestered for another entire night at taxpayers' expense and the jurors' inconvenience. As a result, a common practice arose: In order to conserve time, the trial judge would urge the attorneys to orally dictate their objections to the court reporter in his presence and the other counsel and he would rule on them and would assure the attorneys that the objections could later be transcribed by the court reporter and could then be filed and back-dated by the clerk to show compliance with the statute. ⁴

The practical effect of such procedure was the defense counsel would frequently forget to have their dictated objections transcribed and as...