Ex parte Jones, 56559

• Decision Date: 15 February 1978
• Docket Number: No. 56559,No. 2,56559,2
• Parties: Ex parte Norman Norris JONES
• Court: Texas Court of Criminal Appeals

Page 469

562 S.W.2d 469

Ex parte Norman Norris JONES.

No. 56559.

Court of Criminal Appeals of Texas, Panel No. 2.

Feb. 15, 1978.

Rehearing Denied March 22, 1978.

Ken G. Anderson, Huntsville, for appellant.

Before ONION, P. J., and DOUGLAS and ODOM, JJ.

OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application pursuant to Art. 11.07, V.A.C.C.P.

Petitioner was convicted of possession of heroin by a Dallas County jury in September 1971. On appeal his conviction was affirmed by a divided court. Jones v. State, Tex.Cr.App., 496 S.W.2d 566. The issue over which the Court split concerned the application of this portion of Article 40.09(4), V.A.C.C.P.:

"At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination . . . ."

At petitioner's trial his attorney requested compliance with this provision and the trial court denied his request. On appeal the majority held petitioner had shown no "harm or prejudice by virtue of the court's refusal to order the recording of the voir dire examination," and overruled the ground of error on authority of Miller v. State, Tex.Cr.App., 472 S.W.2d 269. On rehearing the Court adhered to its original disposition of the issue and discussed all prior cases on the statutory provision under examination, including Morris v. State, Tex.Cr.App., 411 S.W.2d 730; Williams v. State, Tex.Cr.App., 418 S.W.2d 837; Evans v. State, Tex.Cr.App., 430 S.W.2d 502; McClain v. State, Tex.Cr.App., 432 S.W.2d 73, all of which were decided in 1967 or 1968, long before petitioner's 1971 trial.

In Cartwright v. State, Tex.Cr.App., 527 S.W.2d 535, the requirement of Jones v. State, supra, that harm or prejudice must be shown, was overruled:

"It is true that when the request for a court reporter has been made under Article 40.09, supra, to take the voir dire examination as opposed to the trial on the merits this court has concluded the failure to honor such requests was error, but was harmless error unless harm was alleged or shown to have resulted from the refusal to furnish a court reporter. Morris v. State, 441 S.W.2d 730 (Tex.Cr.App.1967); McClain v. State, 432 S.W.2d 73 (Tex.Cr.App.1968); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971); Young v. State, 488 S.W.2d 92 (Tex.Cr.App.1972); Williams v. State, 418 S.W.2d 837 (Tex.Cr.App.1967); Evans v. State, 430 S.W.2d 502 (Tex.Cr.App.1968); Vines v. State, 479 S.W.2d 322 (Tex.Cr.App.1972); Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973); Alvarado v. State, 508 S.W.2d 74 (Tex.Cr.App.1974).

"In the instant case a reversal is called for under the theory the statute becomes mandatory when the request is made and any refusal to furnish a court reporter is prejudicial or under the theory of the cases cited above since harm is alleged or shown. Since there should be no difference in the test applied merely because the request is to take the voir dire examination rather than the trial on the merits, the above cited cases are overruled as to the extent of any conflict with the opinion herein. The same portion of a statute should not be divided and given different interpretations. . . ." 527 S.W.2d, at 538-539, n. 6.

Petitioner contends the decision in Cartwright, supra, overruling the application of Art. 40.09(4), supra, upon which his appeal was decided, should be given retroactive application to his case, and that his 1971 conviction should now be set aside for the failure of the trial judge to grant his request to have a court reporter take down the jury voir dire.

Both before and after Cartwright, supra, the refusal of a trial court to grant a defendant's request to have a court reporter record the jury voir dire constituted error. The change in the law effected by Cartwright only concerned what record must be presented on appeal to show reversible error. Before Cartwright it was held that violation of Art. 40.09(4), supra, would present reversible error on appeal only if "harm was alleged or shown to have resulted from the refusal to furnish a court reporter." Cartwright, at n. 6. This rule for presenting reversible error was established well before petitioner's 1971 trial, Morris v. State, 411 S.W.2d 730; McClain v. State, 432 S.W.2d 73, and compliance with the pre-Cartwright rule for presenting reversible error had resulted in reversals prior to petitioner's trial, Williams v. State, 418 S.W.2d 837; Evans v. State, 430 S.W.2d 502. The application of that rule to petitioner's appeal cannot be said to have been unexpected. Had appellant alleged or shown harm to have resulted from the trial court's violation of Art. 40.09(4), supra, he would have been entitled to reversal.

The premise of petitioner's assertion that the Cartwright rule should be applied to his case is that he has been denied the protections of Article 40.09(4), supra, "because of a misinterpretation of the statute which has now been rectified." ¹ We reject this premise. The construction of Art. 40.09(4) has been the same both before and after Cartwright. In Morris v. State, supra, the first case to address the new provision of the 1965 Code of Criminal Procedure, the Court held:

"There can be no doubt but what the learned trial judge erred in failing to comply with all of its (Art. 40.09(4)) terms. The question remains, however, whether such error is reversible error given the particular circumstances of the case at bar."

Also on the direct appeal of petitioner's conviction the majority acknowledged that error was presented:

"In Morris, this court made clear that the trial court had erred and its action was not to be commended but refused to reverse an otherwise valid conviction in the absence of any specific assertion of prejudice." 496 S.W.2d, at 572.

As stated above, the change effected...