Emery v. State

• Decision Date: 14 November 1990
• Docket Number: No. 69650,69650
• Citation: 800 S.W.2d 530
• Parties: Jeff EMERY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 530

800 S.W.2d 530

Jeff EMERY, Appellant, v. The STATE of Texas, Appellee.

No. 69650.

Court of Criminal Appeals of Texas En Banc.

Nov. 14, 1990.

Rehearing Denied Dec. 19, 1990.

Dennis W. McGill, Lubbock, Keith D. Swim, Jr., Bryan, for appellant.

Bill Turner, Dist. Atty., Deena J. McConnell, Asst. Dist. Atty., Bryan, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

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 his first point of error, appellant contends that he is entitled to a new trial because the record on appeal does not and cannot contain a complete transcription of the proceedings in this case. Because appellant's request for a statement of facts was timely, and the loss of the court reporter's notes and records were not appellant's fault, we must reverse.

Appellant was sentenced May 23, 1986. On June 20, 1986, appellant filed a motion for new trial which was denied on July 7, 1986. On July 16, 1986 appellant filed, along with his notice of appeal, ¹ a written designation specifying all matters to be included in the record on appeal, including the complete transcription of all pretrial hearings, pursuant to Article 40.09 § 2, V.A.C.C.P. [now Tex.R.App.Pro., Rules 53(a) and 54(b) ].

Appellant made a motion for extension of time to file the transcription of the court reporter's notes; this Court granted the motion, and extended the time for filing, first to October 18, 1986, ² then to December 15, 1986, and again to February 2, 1987. On January 7, 1987, the court reporter wrote defense counsel and informed them that her pretrial stenographer's notes had been stolen from her storage unit. In her affidavit included in the transcript, she swears that she took notes of pretrial proceedings, but these were taken in a burglary and that the investigating police department has closed the case. These notes included four pretrial hearings occurring on the following dates: (1) September 4, 1984; (2) March 7, 1986; (3) March 24, 1986; and apparently (4) June 5, 1984. ³

This Court granted a final extension of time to file a transcription of the court reporter's notes, setting a deadline of June 3, 1987.

On May 29, 1987, the trial judge filed a "Substituted Transcript" so that the record would "speak the truth." ⁴ In the substituted transcript, the court found that the court's docket notations for September 4, 1984, and March 7, 1986, "reflect the entire events which transpired on that day; and that no factual or testimonial evidence was presented." The rest of the transcript was devoted to listing the disposition of various motions heard on March 24, 1986. However, nowhere is there a substitution regarding the June 5, 1984 pretrial hearing.

On June 3, 1987, the district clerk notified appellant's counsel that the record on appeal had been completed. Appellant filed an Objection to the Transcript in the trial court on June 10, 1987, and in this Court on June 11, 1987.

On June 19, 1987, a hearing was held on the State's Motion to Substitute the Record. The State called the defense attorneys, Mr. Swim and Mr. McGill, in an attempt to elicit from them, among other things, the substance of the June 5th pretrial hearing. Mr. Swim testified that he was not present at the June 5, 1984 hearing because he had not become an attorney on the case until sometime in 1986. Mr. McGill was able to recall only that there "were numerous status hearings, both formal and informal, held in open court and in chambers with the Court on various occasions concerning the status of the case in Wisconsin and the status of the case in Brazos County." ⁵ He was unable to recall whether any testimonial evidence was presented. Before the hearing was adjourned, the trial judge read a number of notes he had made "hopefully to help the Appellate Court," none of which referred to the June 5th hearing. Thus, as to that hearing, we have neither a statement of facts nor a substituted transcript. ⁶

Prior to the advent of the Rules of Appellate Procedure, it had "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. [citations omitted].' " Harris v. State, 790 S.W.2d 568 (Tex.Cr.App.1989), quoting Dunn v. State, 733 S.W.2d 212, 214 (Tex.Cr.App.1987). Before the Texas Rules of Appellate Procedure took effect on September 1, 1986, "once an appellant demonstrate[d] that he requested the court reporter to take notes of the trial or any part thereof, that the court reporter was requested to transcribe the notes and include such transcription in the record on appeal and the court reporter's failure to do so was appropriately objected to, then a conviction must be reversed." Harris, supra. See also Timmons v. State, 586 S.W.2d 509, 512 (Tex.Cr.App.1979).

Currently, "Rules 50 through 55 shall govern preparation and filing of the record on appeal of a case in which the death penalty has been assessed." Tex.R.App.Pro. Rule 210(a). The law governing lost records is now codified in Tex.R.App.Pro. Rule 50(e). Rule 50(e), supra, provides that

"[w]hen the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the appellate court as in other cases. If the appellant has made a timely request for a statement of facts, but the court reporter's notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts." ⁷

Under Rule 50(e), an appellant must demonstrate that he made a "timely request." A request for the statement of facts on appeal must be a "written request to the official reporter designating the portion of the evidence and other proceedings to be included therein." Tex.R.App.Pro. Rule 53(a). A request for the transcript on appeal must be a "written designation specifying matter for inclusion in the transcript." Tex.R.App.Pro. Rule 51(b). Requests for either the statement of facts or transcript must also be "timely," i.e., made to the reporter "within sixty days after the day sentence is imposed." Tex.R.App.Pro. Rule 54(b). If a timely motion for new trial is filed, then "the transcript and statement of facts shall be filed within one hundred days after the day sentence is imposed...." Id.

The State does not expressly dispute that a portion of the record has been effectively lost or destroyed. Instead, the State argues that appellant "has failed to preserve any alleged error." "Appellant," the State argues, "nowhere cites to any request by appellant to record these hearings." The State may be making one of two arguments. The State may be claiming that the absence of a request to record a proceeding in the record raises an inference or presumption that no such recording was ever made. Alternatively, the State may be arguing that appellant's failure to request a reporter constitutes a waiver of the right to have designated transcriptions included in the record on appeal.

Citing Article 40.09, §§ 4 and 5, V.A.C.C.P., the State appears to invite this Court to infer the nonexistence of any recording from the absence of a request for a reporter in the appellate record. However, the very statutory provisions the State cites reveal that such an inference or presumption cannot be made because proceedings may well be recorded without a defendant having to make any such formal request. Article 40.09 § 4 reads in pertinent part "[a]t the request of either party the court reporter shall take short-hand notes of all trial proceedings...." (emphasis added) Article 40.09 § 5, supra, says that a "party desiring to have included in the record a transcription of notes of the reporter shall have the responsibility of obtaining such transcription and furnishing same to the clerk in duplicate in time for inclusion in the record ... The court reporter shall report any portion of the proceedings requested by either party or directed by the court." ⁸ (emphasis added) If either the State requests or the trial court directs a recording of the proceedings, there is no need for the defendant to subsequently present a written request for a court reporter who is already present and taking notes. The absence of a request in the record could just as well support the inference that someone other than the defendant prompted a proceeding to be recorded. In fact, it may well have been that the trial court itself directed that these proceedings be recorded, as this Court has repeatedly urged trial courts to do. See, e.g., Brown v. State, 505 S.W.2d 277, 279 (Tex.Cr.App.1974) ("[W]e strongly advise the trial judges, even in the absence of a request, to have the court reporter record all of the proceedings unless this is expressly waived.") and Presley v. State, 538 S.W.2d 624, 626 (Tex.Cr.App.1976). Thus, it may have been that while no one requested a reporter, the trial judge directed a recording, pursuant either to this Court's admonitions or pursuant to Article 40.09 § 5. In any case, we decline any invitation to make an inference or create an appellate presumption that an absence of a request for a court reporter to record proceedings means no recording was ever made.

Even if such an inference were to be made, it is more than rebutted by a review of the record as a whole. The transcript on appeal reflects that the court reporter swore that such notes were taken at the missing hearings; that the State attempted to certify findings made at the June 19 hearing as a substitute for the hearings; that the trial judge filed a transcript himself as a substitute for the notes; and appellant complained that the notes were irretrievably lost or destroyed. We think ...