Gomez v. State

• Decision Date: 04 February 1998
• Docket Number: No. 1244-95,1244-95
• Citation: 962 S.W.2d 572
• Parties: Tony Valdez GOMEZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 572

962 S.W.2d 572

Tony Valdez GOMEZ, Appellant, v. The STATE of Texas.

No. 1244-95.

Court of Criminal Appeals of Texas En Banc.

Feb. 4, 1998.

Robert E. Hoskins, Galveston, for appellant.

B. Warren Goodson, Jr., Asst. Dist. Atty., Galveston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge, delivered the opinion of the Court.

Appellant was charged by indictment for the offense of burglary of a habitation. V.T.C.A., Penal Code, Section 30.02 (1989). A jury found him guilty as charged, found two enhancement paragraphs true, and sentenced him to eighty-seven years of confinement.

The Court of Appeals affirmed appellant's conviction, 905 S.W.2d 735 (Tex.App.--Houston [14th Dist.] 1995), and he filed a petition for discretionary review with this Court alleging two grounds for review. We granted appellant's first ground for review in order to decide whether "the Court of Appeals erred in holding that appellant did not specifically designate missing exhibits for inclusion in the record [and therefore] [ ] cannot complain of their absence on appeal." We will affirm the judgment of the Court of Appeals.

FACTS OF THE CASE

The judgment was signed and entered on February 12, 1993. Appellant filed his written notice of appeal on the same day. On March 15, 1993, appellant filed a motion for new trial, which was subsequently denied on April 6, 1993. On April 14, 1993, appellant, by means of a letter written to the court reporter, requested the preparation of an original and one copy of the statement of facts. The pertinent part of the letter reads as follows:

"Please be advised the defendant in the above and [sic] styled and numbered cause has given Notice of Appeal. Defendant requests that you prepare and deliver an original and one copy of a Statement of Facts for use in this appeal. This Statement of Facts must be in question-and-answer form of the evidence, exhibits and all other matters, including voir dire and arguments, that were reported in this cause. It must also be certified."

The following day, appellant filed a designation of transcript with the clerk, pursuant to Tex.R.App.P. 51(b), ¹ that listed sixteen items to be included in the appellate record. Appellant failed, however, to request that the exhibits be included in the transcript.

On September 16, 1993, the Court of Appeals issued an order for preparation of a supplemental statement of facts requesting that copies of the exhibits be included pursuant to Tex.R.App.P. 55(b). Appellant then submitted to the Court of Appeals an affidavit from the court reporter stating the original trial exhibits had been inadvertently destroyed. Appellant complains that the most significant exhibits cannot be replaced. ²

These exhibits were found in the victim's home and were offered by the State at trial to prove appellant's presence in the victim's home at the time of the burglary. Expert testimony showed that a latent fingerprint on State's Exhibit No. 6 matched the thumb print of appellant.

ISSUE

Because appellant raises the question of whether he properly requested the missing exhibits for inclusion in the appellate record, we must necessarily address the issue of whether exhibits are considered part of the statement of facts. Appellant properly requested a statement of facts pursuant to Rule 53(a). If the exhibits are to automatically be included in the statement of facts, then appellant's request was sufficient and the exhibits should have been included. This Court recently addressed a similar issue in Melendez v. State, 936 S.W.2d 287 (Tex.Cr.App.1996). Upon further analysis, we have determined that our initial conclusion in Melendez was erroneous for two reasons: (1) it failed to adequately distinguish between original exhibits and copies of exhibits; and (2) it failed to apply an harmless error analysis to the lost exhibits before granting a new trial. ³

ANALYSIS OF RULE 50(e)

On direct appeal appellant argued that he was entitled to a new trial pursuant to Rule 50(e) because some of the exhibits from his trial had been inadvertently destroyed and could not be replaced. The Court of Appeals disagreed holding that appellant was not entitled to a new trial because "exhibits are sui generis and may not be neatly 'pegged' as being solely part of the transcript or the statement of facts." 905 S.W.2d at 739.

Rule 50(e) provides:

"When 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."

The majority of cases dealing with this issue were analyzed under Article 40.09, V.A.C.C.P., (repealed 1986). This Court has stated, however, that the cases decided under Article 40.09 continue to be helpful in the analysis of this ground for review and that the principles discussed are still applicable to an analysis under Rule 50(e). Gibbs v. State, 819 S.W.2d 821, 828 (Tex.Cr.App.1991).

In each of the cases which granted the defendant a new trial pursuant to Rule 50(e), the missing portion of the record was either the entire statement of facts, the final argument, or an essential portion of the trial which was relevant to the appeal. See Dunn v. State, 733 S.W.2d 212, 214 (Tex.Cr.App.1987) (court reporter's notes lost on part of an evidentiary hearing held on thirty-seven pretrial motions, part of voir dire examination of two venire persons excused on the State's challenge for cause, and all of the testimony of one witness); Gamble v. State, 590 S.W.2d 507, 509 (Tex.Cr.App.1979) (court reporter failed to transcribe notes from final arguments); Timmons v. State, 586 S.W.2d 509, 512 (Tex.Cr.App.1979) (defendant deprived of all of the court reporter's notes and transcription of the trial); Pierson v. State, 147 Tex.Cr.R. 15, 177 S.W.2d 975, 976 (1944) (defendant deprived of the entire statement of facts).

In order to determine the applicability of Rule 50(e) to missing exhibits, we must determine whether the exhibits are part of the statement of facts (thus, the court reporter's notes and records), the transcript (the clerk's Our analysis begins with Rule 50(a) which states that the contents of the record "shall consist of the transcript and, where necessary to the appeal, the statement of facts." In deciding what is to be included in both the transcript and the statement of facts we refer to Rules 51 and 53, respectively. Rule 51(a) lists the items that are to be included in the transcript on appeal but does not mention the inclusion of exhibits. Rule 51(b) provides, however, that any party may file a written designation with the clerk specifying matters for inclusion in the transcript and that such designation must be specific.

                records), or neither as the Court of Appeals suggests in its opinion.  Gomez, 905 S.W.2d at 739.   In order to determine the correct placement of the exhibits in the record, we look to the Rules of Appellate Procedure and its Appendix
                

Rule 51(d) allows for the inclusion of original exhibits in the transcript "when the trial court is of the opinion that [the] original papers or exhibits should be inspected by the appellate court in lieu of copies ..." In this circumstance the trial court, or the appellate court on its own initiative, may order such exhibits to be sent for the appellate court's inspection.

Moreover, Rule 11(a)(4) provides that the duties of the court reporter shall include the filing of all exhibits with the clerk. This transfers the custody and control over all exhibits admitted during the course of the proceedings to the clerk. Hence, at the completion of the trial, the actual exhibits become part of the clerk's records, not the court reporter's.

Rule 53 addresses the rules regarding the statement of facts on appeal. Rule 53(a) orders an appellant to make a written request to the court reporter designating the portion of the evidence to be included in the statement of facts. There is no reference made to the automatic inclusion of exhibits.

In determining whether any type of exhibit is to be included in the statement of facts, we look to the Texas Rules of Appellate Procedure Appendix for Criminal Cases. ⁴ Rule 1 of the Appendix gives the instructions for the format of both the transcript and the statement of facts on appeal. Specifically, Rules 1(b)(4), (5), and (6) are helpful in the evaluation of the placement of exhibits. For example, the relevant part of Rule 1(b)(4) reads as follows:

"The court reporter shall also show in a separate table in the first volume of the statement of facts the page at which any exhibit or other document copied therein appears, and the pages at which it is identified (when an exhibit is identified by more than one witness, page references shall be made where each witness identified the exhibit.)" (Emphasis added.)

Rule 1(b)(5) states:

"(5) Unless ordered otherwise pursuant to Rule 51(d), neither physical evidence (gun, clothing, controlled substance, etc.) nor ordinarily an original exhibit is to be included in the record on appeal. Each item of physical evidence must be described alone on a separate piece of paper; it and a legible copy of other exhibits will appear respectively on a separate page of the statement of facts. However, when a legible copy of a photograph or any paper exhibit may not be made, the original exhibit shall be included in the record under order of the trial court made pursuant to Rule 51(d)." (Emphasis added.)

Rule 1(b)(6) further directs:

"Copies of exhibits received in each separate proceeding or hearing, including those descriptions of...