Harris v. Estelle
| Decision Date | 09 November 1978 |
| Docket Number | No. 77-2238,77-2238 |
| Citation | 583 F.2d 775 |
| Parties | William Tyrone HARRIS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
William Tyrone Harris, pro se, Melvyn C. Bruder, Dallas, Tex. (Court-appointed), for petitioner-appellant.
John L. Hill, Atty. Gen., Joe Dibrell, Asst. Atty. Gen., Chief Enforcement Div., P. E. George, David M. Kendall, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before RONEY, GEE and FAY, Circuit Judges.
This appeal is from a district court judgment denying relief to petitioner in a habeas corpus proceeding. Petitioner's application for habeas corpus relief comes more than twenty years after his 1952 murder conviction in a state court in Texas. The conviction was affirmed in Harris v. State, 158 Tex.Cr.R. 37, 253 S.W.2d 44 (1952). Since petitioner was denied representation by counsel in his appeal from the conviction, the Texas Court of Criminal Appeals permitted the petitioner an out-of-time appeal in 1973. This Court also ordered that petitioner be granted an out-of-time appeal or a new trial. Harris v. Estelle, 487 F.2d 56 (5th Cir. 1973). Petitioner claims that the failure of the State to provide a verbatim transcript precluded him from taking an effective out-of-time appeal and from having effective representation of counsel on appeal. Since petitioner was provided with a suitable alternative to a verbatim transcript, we affirm the judgment of the district court.
At the outset it must be noted that petitioner exhausted state remedies as to his claim that the absence of a verbatim transcript prevented him from effectively appealing his conviction. Petitioner bases his additional claim of ineffective representation by counsel, however, on the failure of the State to provide a verbatim transcript. Because petitioner's claim of ineffective representation of counsel is founded on his contention that the record was insufficient, a determination that the reconstructed record was a suitable alternative makes it unnecessary for this Court to pass on whether petitioner's claim of ineffective representation was adequately presented to the State courts.
It is well established that the lack of a verbatim transcript is not a constitutional defect when a suitable alternative is provided. Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414-415, 30 L.Ed.2d 372 (1971); Morgan v. Massey, 526 F.2d 347, 348 (5th Cir. 1976); Mack v. Walker, 372 F.2d 170, 172-174 (5th Cir. 1966). Quoting Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), the Supreme Court reiterated in Mayer, supra, thatSU Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript. . . .
Alternative methods of reporting trial proceedings are appropriate particularly where state appellate rules provide a procedure for reconstruction of the trial record, and indigents and nonindigents are treated the same. See Morgan v. Massey, supra, and Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
Petitioner obtained the same type of record provided to nonindigent defendants. Pursuant to Article 759 of the 1925 Texas Code of Criminal Procedure (in effect in 1952) the State did not provide a verbatim transcript of any criminal trial proceedings. Only a statement of facts in narrative form was available to defendants in criminal cases.
Petitioner was given an opportunity to supplement the record of his criminal case at an evidentiary hearing in state...
To continue reading
Request your trial
-
Harris v. State
...that the lack of a verbatim transcript is not a constitutional defect when a suitable alternative is provided." Harris v. Estelle, 583 F.2d 775, 777 (5th Cir.1978), citing among other cases Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414-415, 30 L.Ed.2d 372 (1971). "Alternati......
-
State v. Ibarra
...denied, 449 U.S. 853, 101 S.Ct. 147, 66 L.Ed.2d 66 (1980); Smith v. State, 291 Md. 125, 433 A.2d 1143 (1981); cf. Harris v. Estelle, 583 F.2d 775 (5th Cir.1978) (per curiam) (statement of facts in narrative form sufficient in habeas proceeding where all defendants received similar non-verba......
-
State v. Deschon, 02-322
...verbatim transcript; the state may find other means of affording adequate and effective appellate review); see also Harris v. Estelle (5th Cir. 1978), 583 F.2d 775, 777. "A reconstructed record, as opposed to a verbatim transcript, can afford effective appellate review, particularly where a......
-
U.S. v. Cashwell, 90-5214
...alternative is provided. See Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414-15, 30 L.Ed.2d 372 (1971); Harris v. Estelle, 583 F.2d 775, 777 (5th Cir.1978); Morgan v. Massey, 526 F.2d 347, 348 (5th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976). The S......