Harris v. State, 69366

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation790 S.W.2d 568
Docket NumberNo. 69366,69366
PartiesDanny Ray HARRIS, Appellant, v. The STATE of Texas, Appellee.
Decision Date28 June 1989

Page 568

790 S.W.2d 568
Danny Ray HARRIS, Appellant,
v.
The STATE of Texas, Appellee.
No. 69366.
Court of Criminal Appeals of Texas,
En Banc.
June 28, 1989.
Rehearing Denied March 28, 1990.

Page 572

John D. MacDonald, II, New Caney, for appellant.

Bill Turner, Dist. Atty., and Deena J. McConnell, Asst. Dist. Atty., Bryan, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DUNCAN, Judge.

The appellant was convicted of capital murder pursuant to V.T.C.A. Penal Code, § 19.03(a)(b), and punishment was assessed at death under Article 37.071(e), V.A.C.C.P., after the jury answered affirmatively the questions submitted by the trial court at the punishment phase of the trial. This is the second time this Court has reviewed a death sentence imposed on the appellant for this offense. See Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983).

Since the facts in this case have not changed, we will take the liberty of adopting the comprehensive factual recitation as set out in the appellant's previous appeal, Harris v. State, id., at 454. 1 To do otherwise would unnecessarily and reduntantly lengthen this opinion.

Briefly, however, the appellant, his codefendant, James Charles Manuel, and appellant's brother Curtis Paul Harris, were all indicted for the capital murder of Timothy Merka. Valerie Rencher, who was a juvenile at the time of the offense and the apparent girlfriend of Curtis Paul Harris, although present at the time of the offense, was never formally charged by indictment. Further, as a result of a plea agreement, she testified for the State against the appellant at both of his trials. 2

The appellant's first point of error is based on the trial court's refusal to grant a new trial after it was discovered that a portion of the record had been lost. In his second point of error, the appellant claims that the trial court did not have the jurisdiction to take remedial measures in an

Page 573

effort to correct the defect in the record. Since both points of error are so interrelated they will be disposed of simultaneously. On June 15, 1984, a pretrial hearing was conducted by the trial court. Apparently because the regular court reporter was unavailable, Brazos County authorities arranged for an independent court reporter to report the hearing. The record demonstrates that the appellant's attorney requested that the court reporter take notes of the hearing. Later, and in a timely manner, appellant's counsel requested in his Designation of the Record that the notes of the pretrial hearing be made a part of the record. Sometime after the Designation of the Record had been filed, the appellant and the State were advised that the notes of the pretrial hearing were lost.

Appellant's counsel then filed his Objection to the Record specifically identifying the deficiency in the record and requested a hearing on his Objection to the Record and "after [the] hearing enter such orders as may be appropriate to cause the record to speak the truth...."

Two hearings were held to examine the appellant's Objection to the Record; however, only the second hearing is consequential. At that hearing, one of the appellant's trial attorney's conceded no witnesses appeared at the pretrial hearing and that the only matters that transpired at the pretrial hearing was "we heard all the motions;" "[t]here were rulings by the court;" and "[t]here were agreements that were dictated into the record between the counsel as to what would be provided and what wouldn't." Further, the witness agreed with the prosecutor that the court made docket entries reflecting his rulings on the motions and in "almost every case ..." the court's rulings were noted on the motions themselves. At the conclusion of the hearing on the Objection to the Record, the State tendered to the court "a rough draft which has a list of all the, I believe, twenty-six motions that were heard on that day." The court ordered that the tendered document (which was not introduced into evidence and thus not a part of this record) be formalized and returned to the court.

On January 16, 1987, the trial court conducted a hearing to consider supplementing the record with a document that identifies the pretrial motions heard by the court on June 15, 1984, and the court's ruling on the motions. At this hearing the trial court, over the appellant's request for a "mistrial" (new trial), ordered that the record be supplemented with the document that recounted the pretrial hearing and concluded that including that document in the record the record in the appeal was complete.

Prior to examining the substance of the appellant's claim it is imperative to examine whether the Rules of Appellate Procedure are applicable to the appeal of this conviction. As noted at the outset of the opinion, this is the appellant's second time before this Court for the same offense; thus, this case has been around for a long time. This time the appellant was convicted and assessed the death penalty on July 29, 1984. Therefore, the appellant's appeal proceeded in accordance with the procedures dictated by Article 44.01, et seq., V.A.C.C.P. Specifically, when the matter of the objectionable record surfaced the appellant's counsel responded pursuant to the procedures required under Article 44.09(7), supra. That is, on July 22, 1986, he filed his Objection to the Record and requested a hearing thereon. On August 1, 1986, the court held its first hearing on the appellant's Objection to the Record. Thus, the process of responding to the appellant's complaint about the record proceeded in accordance with the then still applicable procedures mandated in the Code of Criminal Procedure.

On September 1, 1986, the Texas Rules of Appellate Procedure became effective pursuant to an order of this Court adopting such rules dated December 18, 1985. On September 22, 1986, this Court, recognizing that confusion existed as to the applicability of the rules to appeals that were in the process of being perfected, issued an Order Implementing the Texas Rules of Appellate Procedure in Criminal Cases. In relevant part this Order provided as follows:

Page 574

It is Ordered by the Court of Criminal Appeals that as to posttrial, appellate and review procedures and steps completed or required to have been completed prior to September 1, 1986, the procedural provisions then in effect shall govern.

It is further Ordered that all procedural matters and requirements as to posttrial, appellate and review procedures and steps completed or required to have been completed on or after September 1, 1986, shall be governed by the procedural requirements of the Texas Rules of Appellate Procedure in criminal cases, regardless of when notice of appeal was given.

As previously noted, the appellant's appeal was initiated pursuant to the procedures then required by the Code of Criminal Procedure. Specifically, relevant to this point of error, notice that the record had been completed was given to the appellant on July 8, 1986. The appellant objected to the record on July 22, 1986 and, as previously noted, the initial hearing on his objection was held on August 1, 1986. Under then Article 40.09(7), V.A.C.C.P., once notice that the record was complete a defendant had fifteen days to file his Objections to the Record. Thus, the appellant had to file his Objections to the Record by July 23, 1986. He properly and timely filed the objection on July 22, 1986. Thus, the time period necessary for the appellant to preserve his Objection to the Record and his preservation of the objection were dates prior to September 1, 1986. Since the appellate procedures appropriate to preserve his Objection to the Record were "completed or required to have been completed prior to September 1, 1986 ...," then the appellate procedures noted in Chapter 40, V.A.C.C.P., were applicable to this appeal.

We certainly recognize that other proceedings, necessary to perfect this appeal, occurred after September 1, 1986. It would be absurd, however, to require an appeal to be perfected under one standard and then arbitrarily apply another standard. Therefore, as to this appeal, we find that the provisions of the Code of Criminal Procedure rather than the Rules of Appellate Procedure are applicable.

Dispensing with this preliminary procedural matter, the appellant claims that the loss of the notes of the pretrial hearing dooms his conviction. The appellant relies principally upon Dunn v. State, 733 S.W.2d 212 (Tex.Cr.App.1987). In Dunn, id., the Court stated:

It has long been the rule in this State that "[w]hen an appellant, through no fault of his own or his counsel's, is deprived of a part of the statement of facts which he diligently requested, the appellate court cannot affirm the conviction. Austell v. State, 638 S.W.2d 888, 890 (Tex.Cr.App.1982). See also Gamble v. State, 590 S.W.2d 507 (Tex.Cr.App.1979); Timmons, supra, at 512; Pierson v. State, 147 Tex.Cr.R. 15, 177 S.W.2d 975, 976 (1944); Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081, 1085 (1941) (Opinion on motion for rehearing); and now also Tex.R.App.Pro.Rules 210(a) and 50(e). Further, this rule has been applied whether all or only a portion of the statement of facts was omitted. See Austell, supra (voir dire examination); Gamble, supra (final arguments during guilt and punishment before the jury); and, Hartgraves v. State, 374 S.W.2d 888, 890 (Tex.Cr.App.1964) (hearing on motion for new trial).

[T]he burden is on appellant to establish that he ha[s] been deprived of his statement of facts. [citations omitted] To be entitled to a reversal of judgment of conviction where the statement of facts is not filed, an appellant must show due diligence in requesting it and that failure to file or to have the statement of facts timely filed is not in any way due to negligence, laches, or other fault of the appellant or his counsel. [citations omitted] Indeed, the circumstances...

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