Dunn v. State, 68948

Decision Date08 April 1987
Docket NumberNo. 68948,68948
Citation733 S.W.2d 212
PartiesKenneth Wayne DUNN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

CLINTON, Judge.

Appellant was convicted of capital murder, V.T.C.A. Penal Code, § 19.03(a)(2), and sentenced to death, Article 37.071, V.A.C.C.P. In nine points of error, 1 he contends that he is entitled to a new trial because the record on appeal does not contain a complete transcription of the court reporter's notes of the proceedings in his case (hereinafter also referred to as "the statement of facts"). Appellant does not challenge the sufficiency of the evidence to support the judgment and sentence. Because we agree that this conviction cannot be affirmed on the record before us, we will reverse.

Appellant's automatic appeal under then Article 37.071(f), supra, (now (h), Acts 1981, 67th Leg., p. 2673, ch. 725, § 1), began when sentence was assessed November 17, 1980. See also Article 44.08(a), V.A.C.C.P., and now Tex.R.App.Pro. Rule 40(b)(1). The record on appeal was finally approved, Article 40.09, § 7, V.A.C.C.P., on January 22, 1985, over four years later. Despite repeated attempts during those four years to complete the record on appeal, however, the transcription of the following portions of the court reporter's notes remains absent: (1) part of the evidentiary hearing held on thirty seven pretrial motions, dealing primarily with discovery and pleading concerns; (2) part of the voir dire examination of venireperson Simms and all of the examination of venireperson Emley, excused respectively on the State's challenge for cause and appellant's peremptory challenge; and (3) all of the testimony of G. Tatum, who was the court reporter for most of appellant's trial, elicited at the punishment stage of the proceedings. Appellant argues that these omissions mandate a reversal of this cause, inter alia, under Articles 37.071 and 40.09, V.A.C.C.P.

Appellant correctly contends that he is entitled to a record on appeal containing a verbatim transcription of these portions of the court reporter's notes. By timely filed written motions, he requested that the court reporter "take shorthand notes of" the voir dire examinations and all subsequent proceedings. The trial court properly granted this request. See Article 40.09, § 4, supra; Soto v. State, 671 S.W.2d 43, 45 (Tex.Cr.App.1984). The court reporter did, in fact, take notes of all the proceedings in this case, including all of those portions now missing from the record on appeal. 2 After assessing sentence, the trial court ordered the court reporter to "prepare a statement of facts in question and answer form of the testimony" in the case. 3 Article 40.09, § 3, supra, provides that "a transcription of all or any part of the proceedings shown by notes of the reporter to have occurred before, during or after the trial ... will constitute the statement of facts for the appeal." 4 See Timmons v. State, 586 S.W.2d 509, 510, n. 2 (Tex.Cr.App.1979). Consequently, under the terms of the pertinent orders of the trial court, appellant is entitled to a record on appeal containing a complete transcription of all the notes taken by the court reporter during the proceedings in his case, including those portions not included in the record before us. See Article 40.09, § 5, supra ("The court reporter shall report any portion of the proceedings requested by either party or directed by the court.") 5

It has long been the rule in this State that "[w]hen an appellant, through no fault of his own or his counsel's, is deprived 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. 15, 177 S.W.2d 975, 976 (1944); Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081, 1085 (1941) (Opinion on motion for rehearing); and now also Tex.R.App.Pro Rules 210(a) and 50(e). 6 Further, this rule has been applied whether all or only a portion of the statement of facts was omitted. See Austell, supra (voir dire examination); Gamble, supra (final arguments during guilt and punishment before the jury); and, Hartgraves v. State, 374 S.W.2d 888, 890 (Tex.Cr.App.1964) (hearing on motion for new trial).

"[T]he burden is on appellant to establish that he ha[s] been deprived of his statement of facts. [citation omitted] To be entitled to a reversal of judgment of conviction where the statement of facts is not filed, an appellant must show due diligence in requesting it and that failure to file or to have the statement of facts timely filed is not in any way due to negligence, laches, or other fault on the part of the appellant and his counsel. [citations omitted] Indeed, the circumstances in such cases should be viewed from the appellant's standpoint, [citation omitted] and any reasonable doubt is resolved in favor of the appellant."

Timmons, supra, at 512. See also Gamble, supra, at 508.

After reviewing the record, we conclude that appellant exercised due diligence in attempting to secure a complete statement of facts. Objections to the incomplete state of the record were filed by the State the day after the parties were first notified of the completion of the record on appeal. See Article 40.09, § 7, supra. Thereafter, additional objections to the record's continuing incompleteness were timely filed by both appellant and the State each time the district clerk informed them of the record's "further completion." Appellant twice received extensions of time (totalling over one and a half years) in which to file the record in this Court. See then Article 40.09, § 16, (redesignated as § 13, Acts 1981, 67th Leg., ch. 291 § 108, p. 804, eff. Sept. 1, 1981) supra; see now Tex.R.App.Pro. Rule 54(c). During that time, he unsuccessfully pursued contempt proceedings against the court reporter under Article 1911a, V.A.C.S. See, e.g., Ex parte Contreras, 586 S.W.2d 550, 551 (Tex.Cr.App.1979). After expiration of the extensions, appellant moved this Court to reverse his conviction upon the district clerk's certificate of the record's continuing incompleteness. We denied that motion but commanded the court reporter to show cause for his continuing failure to transcribe all his notes. Ex parte Gary Tatum, No. 69,012 (Tex.Cr.App., delivered July 13, 1982). His sworn response confirmed that these portions of his notes were hopelessly lost. No further action was taken by this Court.

Beginning March 8, 1984, the trial court, over appellant's objection and reurged motion for new trial, proceeded, on motion of the State, to "reconstruct" the missing portions of the record. After testimony from all the trial participants, venireperson Simms and Emley, the court reporter and pertinent personnel from the posttrial divisions of the district attorney's and clerk's offices, the trial court entered findings of fact and conclusions of law regarding the state of the appellate record. Appellant timely objected to the findings and conclusions and again reurged his motion for new trial. With respect to appellant's diligence in attempting to secure a complete statement of facts, the trial court made the following factual findings:

" * * *

[1.] Any delays [in preparing the record] were the result of the difficulty involved in locating the court reporter and having to work through the trial counsel to determine what portions were missing from a record which was poorly organized.

[2.] The search for the missing portions of the testimony recorded by ... Tatum was conducted by Mr. Tatum going through his notes for the proceeding four or five years several times under the close direction of the court who weekly called Mr. Tatum in to report on his progress. All efforts to find the missing notes have been fruitless.

The search for the court reporter who recorded ... Tatum's testimony [at the punishment phase of the trial] has been carried out exhaustively ... to no avail. All court personnel present at trial have been asked and no one remembers who recorded [this] testimony.

[3.] The completion of as much of the record as there is has been a mammoth task involving the cooperation of all parties involved.

Due diligence was exercised by the Appellant in an attempt to have the transcription of the court reporter's notes timely filed.

The failure to file the transcription of these notes is not in any way due to negligence, laches, or other fault on the part of Appellant or his counsel."

Our review of the record reveals ample support for these findings. See Article 40.09, § 4, supra. On these facts, it is clear that appellant exercised due diligence. See Austell, supra; Gamble, supra; Timmons, supra; and also Ex parte May, 510 S.W.2d 606 (Tex.Cr.App.1974) and cases discussed therein. 7

Nevertheless, the State contends that appellant is not entitled to a new trial. Instead, it argues that where only a portion of the record is lost, and extensive efforts have been undertaken to reconstruct those missing portions, an appellate court should review on a case by case basis and affirm the judgment and sentence unless appellant shows that he has been "actually harmed by the inadvertent loss or destruction of a court reporter's notes." The State cites Summerford v. State, 627 S.W.2d 468 (Tex.App.--Houston [1st] 1981) no PDR, and McClendon v. State, 643 S.W.2d 936 (Tex.Cr.App.1982), in support.

A review of the caselaw, however, reveals that this Court has consistently rejected the rule now urged upon us by the State. See, e.g., Gamble, supra, at 509, Austell, supra, at 890 and Soto, supra, at 45-46. Instead, we have long held...

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