Goodings v. State, 46570
| Decision Date | 03 October 1973 |
| Docket Number | No. 46570,46570 |
| Citation | 500 S.W.2d 173 |
| Parties | Bessie Ann GOODINGS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
C. Gordon Metcalf (On appeal only), Temple, for appellant.
Stanley Kacir, Dist. Atty. and Jerry Secrest, Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., Austin, for the State.
KEITH, Commissioner.
Appellant was convicted of selling a dangerous drug, barbituric acid derivative, and the jury assessed her punishment at confinement for a period of five years.
Appellant's brief contains three grounds of error, the first two complaining of the admission of evidence at the guilt-innocence stage of the trial while the third complains of the refusal of a motion for mistrial because of the erroneous admission of testimony. It is obvious that a transcription of the court reporter's notes, certified in accordance with the statute and properly included in the record, is essential to a determination of the grounds brought forward.
The State asserts it 'is unable to answer Appellant's allegations as no Statement of Facts has been requested by the Appellant or prepared by the Court Reporter' and prays for a dismissal of the appeal. At all stages of the trial and appeal, appellant has been represented by retained counsel and the transcript does not contain a pauper's affidavit entitling her to a statement of facts at the cost of the county.
In order to place our problem in proper perspective, we deem it advisable to set out some of the significant matters appearing in our appellate record.
Appellant's motion for new trial was overruled on June 6, 1972, and appellant was duly sentenced, the order advising her of her right to give notice of appeal. Notice of appeal was duly filed on June 12, and the request for a transcript was filed with the clerk on July 20. On the same day, July 20, counsel mailed a request to the court reporter to prepare a complete statement of facts for inclusion in the record, the original being filed with the clerk upon the same date. Still, on the same date, the court reporter filed his reply to appellant's request for a statement of facts, stating that he 'refuses to comply with defendant's request for a statement of facts in the above cause because no provision has been made for the payment of fees for said record.' No further action appears of record in connection with this request for, and a refusal to furnish, the statement of facts.
In compliance with Art. 40.09, § 7, Vernon's Ann.C.C.P., the district clerk notified counsel that the record was complete on August 9, 1972, such notice having been received by appellant's retained counsel on August 11, 1972. Counsel, by an undated instrument found in the record, agreed that the transcript could be filed and immediately thereafter, in an undated instrument, the trial judge approved the record prepared by the clerk (which did not contain the court reporter's transcript of the testimony) 'as truly reflecting all matters and things had and done in said cause.' The clerk's transcript bears a file...
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