Ex parte Contreras
| Decision Date | 19 September 1979 |
| Docket Number | No. 61976,61976 |
| Citation | 586 S.W.2d 550 |
| Parties | Ex parte Jesus Regalado CONTRERAS. |
| Court | Texas Court of Criminal Appeals |
Appeals are taken from two convictions for burglary of a habitation. V.T.C.A. Penal Code, Sec. 30.02. Punishment was assessed at seven years in each case.
Appellant contends that he has been denied his right to appeal by the failure of the record to include a transcription of the court reporter's notes. It is undisputed that appellant is an indigent. He maintains that he is entitled to a new trial.
Appellant was convicted on October 5, 1977. Mark Thomas, the court reporter at that time, recorded the testimony entered at appellant's trial. It appears from the record before us that Thomas has since moved to Birmingham, Alabama and efforts to secure a transcription of the court reporter's notes from him have been to no avail.
This Court has granted two extensions of time to file the transcription of the court reporter's notes, the last extension expiring on April 15, 1978. A third request for an extension was denied on May 1, 1978.
Notice of completion of the record "without statement of facts" was given counsel on May 9, 1978. Appellant filed written objections to the record based on the absence of a transcription of the court reporter's notes.
The trial court held a hearing regarding the status of the attempts to obtain a transcription of the court reporter's notes. In the intervening year since that hearing no transcription of the court reporter's notes has been filed in this cause. The transcript (with no transcription of the court reporter's notes accompanying it) was filed in this Court on October 11, 1978 after the trial court had approved the record.
The trial court has a duty under the Texas and United States Constitutions to provide an indigent defendant with an adequate record on appeal. See Guillory v. State, Tex.Cr.App., 557 S.W.2d 118 and numerous decisions of the United States Supreme Court and this Court cited therein.
The State is correct in its brief where it urges that the court reporter can be ordered by the court to file a transcription of his notes in a timely fashion and upon failure to do so the court can issue an order requiring the court reporter to show cause as to why he should not be held in contempt. Art. 1911a, V.A.C.S. However, it would appear that this procedure would be to no avail if the court reporter is still without the jurisdiction of the court.
We call attention to Subd. 14 of Art. 40.09, V.A.C.C.P. which provides that the parties with the approval of the court may utilize an agreed statement of facts. In Ex parte Mays, Tex.Cr.App., 510 S.W.2d 606 it was pointed out that if a defendant is found to be indigent, he cannot be compelled to utilize this alternative method.
We abate this appeal and set aside the trial court's order approving the record. If the trial court has regained jurisdiction over the court reporter, Mark Thomas, it can order him to prepare a transcription of the court reporter's notes forthwith and upon his failure to comply with such order proceed with contempt proceedings as outlined above.
In the event that the transcription of the court reporter's notes or an agreed statement of facts is filed with the clerk of the trial court within 30 days of the date of this opinion, notice of completion of the record shall be given to the parties pursuant to Art. 40.09(7), V.A.C.C.P. Further proceeding shall then be had under the appropriate subdivisions of Art. 40.09, V.A.C.C.P.
In the event that the transcription of the court reporter's notes or an agreed statement of facts has not been filed with the clerk of the trial court after 30 days from the date of this opinion, appellant shall be accorded a new trial. No motion for rehearing will be entertained.
The appeal is abated.
I concur in the disposition of this case on statutory grounds, but I do not join the holding that the constitutional rights of indigent defendants are implicated today.
While it is true, as the majority says, that the trial court has a constitutional duty to provide an indigent defendant with as adequate a record on appeal as that which is available to the monied defendant, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, the unavailability of an adequate record in this case stems not from appellant's financial condition, but from the absence of the court reporter's notes to prepare such a record.
When the absence of an adequate record is due to circumstances other than the defendant's indigency, as is the case here, the consequences of such a condition should be the same whether the defendant is indigent or not. In Rhoda v. State, Tex.Civ.App., 514 S.W.2d 937, the Court wrote:
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Dunn v. State, 68948
...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 ce......
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Summerford v. State
...v. State, 508 S.W.2d 598, 605 (Tex.Cr.App.1974). Appellant cites Ex Parte Mays, 510 S.W.2d 606 (Tex.Cr.App.1974), Ex Parte Contreras, 586 S.W.2d 550 (Tex.Cr.App.1979), and Hartgraves v. State, 374 S.W.2d 888 (Tex.Cr.App.1964). Also consistent with those cases is Curry v. State, 488 S.W.2d 1......