Ex parte Henderson, 57115

• Decision Date: 15 February 1978
• Docket Number: No. 57115,57115
• Citation: 565 S.W.2d 50
• Parties: Ex parte Henry HENDERSON, Jr.
• Court: Texas Court of Criminal Appeals

Page 50

565 S.W.2d 50

Ex parte Henry HENDERSON, Jr.

No. 57115.

Court of Criminal Appeals of Texas,En Banc.

Feb. 15, 1978.

Opinion on Appellant's Motion for Rehearing April 26, 1978.

Douglas H. Parks, Dallas, for appellant.

Before the court en banc.

OPINION

DOUGLAS, Judge.

This is an appeal from an order in a habeas corpus proceeding where a reduction of bail pending appeal was sought.

The dissent would hold that Article 44.34, V.A.C.C.P., requires that a transcription of the court reporter's notes must be made a part of the record even though it is not requested by an appellant. ¹

Article 44.34 provides:

"When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals. This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge."

Apparently the dissent would require the trial court to have such a transcription prepared even though a wealthy petitioner did not want or request it. ²

The cases under Article 44.34 and its predecessors have uniformly held that absent a transcription of the court reporter's notes or a statement of facts a cause will be affirmed. See e. g. Ex parte Naill, 127 S.W. 1031 (Tex.Cr.App.1910); Ex parte Palmer, 136 Tex.Cr.R. 245, 124 S.W.2d 860 (1939); Ex parte Moore, 318 S.W.2d 667 (Tex.Cr.App.1958); and Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App.1967). There is no reason to change the rule.

The implicit rationale of those cases was that the burden was on an appellant or petitioner to request such notes to be placed in the record or the right to such transcription was waived.

Whether Article 44.34 is mandatory or directory, petitioner may waive compliance with the provision. Article 1.14, V.A.C.C.P., provides as follows:

"The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case."

Even if we be wrong in the construction of Article 44.34, the rule that we follow today has been the procedure for many years. There is little chance, if any, for one to be injured or an injustice be done by the well-established rule. All one has to do to secure the transcription of the court reporter's notes in his case is to ask for it and, if he is able to do so, pay the costs.

Many court reporters are having trouble preparing records in the time prescribed by law. We will not add to that burden when there is no good reason for it.

For the above reasons, the judgment is affirmed.

ONION, Presiding Judge, concurring.

This appeal is from an order entered in a habeas corpus proceeding refusing to lower the bail pending appeal from four felony convictions.

Bail pending appeal was set at $10,000 in each case. On November 22, 1977 appellant filed his application for writ of habeas corpus seeking a reduction of bail. On the same date the district court conducted a hearing on said application, and having heard the evidence presented, entered an order denying the reduction of bail. Notice of appeal was given. Subsequently the record, sans a transcription of the court reporter's notes (statement of facts), was approved by the trial court noting that no objection was made to said record. Thus, the appellate record before us consists of a clerk's transcript without a statement of facts and without briefs by either the appellant or the State. No contention on appeal has been advanced.

It has long been held by this court in appeals from habeas corpus proceedings (including the refusal to reduce bail) ¹ that in the absence of a statement of facts nothing is presented for review. In accordance with such cases, this judgment in this appeal should be affirmed.

It was not until the majority opinion on original submission in Ex parte Sims, 565 S.W.2d 45 (Tex.Cr.App. # 55,139, 11/23/77) (now on rehearing), that there was any indication that any other result would be reached. There the majority, although the contention was not raised by either party, interpreted Article 44.34, V.A.C.C.P., as amended as requiring the clerk to prepare a complete record including the statement of facts, whether requested by the appellant or not, and without regard to whether the appellant was indigent or not. The majority held that an appellate record in a habeas corpus proceeding will call for the abatement of the appeal rather than an affirmance.

It is interesting to trace the history of Article 44.34, supra, and its predecessors back to at least 1879.

Article 881, V.A.C.C.P. (1879), provided:

"When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a transcript of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the court of appeals for revision. This transcript, when the proceeding takes place before a court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation the transcript may be prepared by any person under the direction of the judge and certified by such judge."

Said Article 881 became Article 916, V.A.C.C.P., in 1895 and later said Article 916 became Article 950, V.A.C.C.P., in 1911 and said Article 950 became Article 857, V.A.C.C.P., in 1925, all without change.

In 1965 said Article 857 became Article 44.34, V.A.C.C.P., with minor changes. The word "review" was substituted for the last word "revision" in the first sentence, and the word "record" was substituted for the word "transcript" elsewhere in the statute.

In Ex parte Watson, 455 S.W.2d 300 (Tex.Cr.App.1970), it was held that Article 44.34, supra, controls the appellate procedure in habeas corpus cases rather than Article 40.09, V.A.C.C.P., relating to appeals from convictions in criminal cases. ² It became clear from Watson that there were no time limits for sending up the appellate record in such cases. Then in 1973 Article 44.34, supra, was amended to provide for such time limitation and an additional sentence was added. Such statute now reads:

"When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals. This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge." Acts 1973, 63rd Leg., p. 1270, ch. 465, § 1 (1973 amendment is underlined above.)

It is observed that this statute has undergone little change in almost one hundred years and has never prescribed with much detail the appellate procedure to be followed in appeals from habeas corpus proceedings.

As early as 1885 it was held that the rules governing the transmission of transcripts in other criminal cases do not govern in habeas corpus appeals. See Ex parte Barrier, 17 Tex.App. 585 (1885); Ex parte Kramer, 19 Tex.App. 123 (1885). ³

Habeas corpus appeals determined when the various statutes described above were in effect clearly established on the years that in the absence of statement of facts in appeal in habeas corpus proceedings nothing is presented for review, and it is presumed that the judgment entered in the trial court is correct. See, e. g., Ex parte Carrington, 129 Tex.Cr.R. 613, 91 S.W.2d 345 (1936); Ex parte Horn, 97 S.W.2d 698 (Tex.Cr.App.1936); Ex parte Brady, 137 Tex.Cr.R. 609, 132 S.W.2d 592 (1939); Ex parte Ambrose, 145 Tex.Cr.R. 582, 170 S.W.2d 731 (1943); Ex parte Grubman, 146 Tex.Cr.R. 500, 176 S.W.2d 335 (1943); Ex parte Canavan, 147 Tex.Cr.R. 493, 182 S.W.2d 818 (1944); Ex parte Stone, 152 Tex.Cr.R. 351, 214 S.W.2d 127 (1948); Ex parte Toalson, 252 S.W.2d 161 (Tex.Cr.App.1952); Ex parte Freed, 254 S.W.2d 792 (Tex.Cr.App.1953); Ex parte Taylor, 259 S.W.2d 222 (Tex.Cr.App.1953), cert. den., Taylor v. Moore, 350 U.S. 997, 76 S.Ct. 548, 100 L.Ed. 861; Ex parte Lewis, 263 S.W.2d 557 (Tex.Cr.App.1954); Ex parte Chapa, 287 S.W.2d 178 (Tex.Cr.App.1956); Ex parte Lawhon, 295 S.W.2d 660 (Tex.Cr.App.1956). See also Ex parte Adams, 13 S.W.2d 842 (Tex.Cr.App.1929); Ex parte Palmer, 136 Tex.Cr.R. 245, 124 S.W.2d 860 (1939); Ex parte Combs, 132 Tex.Cr.R. 500, 105 S.W.2d 1096 (1937); Ex parte Slayden, 238 S.W.2d 706 (Tex.Cr.App.1951); Ex parte Hopkins, 368 S.W.2d 223 (Tex.Cr.App.1963); Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App.1967). And see cases cited in footnote # 1.

Implicit in these holdings is the requirement that it is the appellant's duty and responsibility to secure the statement of facts for inclusion in the appellate record, and his failure to uphold his responsibility will be held against him. It is true that many of these decisions do not always mention the applicable statute and do not expressly spell out the responsibility of the appellant. However, each of the cases cited involved habeas corpus appeals, ⁴ while the various statutes described above were in effect governing appeals in habeas corpus proceedings.

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