Jones v. State

• Decision Date: 14 March 1973
• Docket Number: No. 45977,45977
• Citation: 496 S.W.2d 566
• Parties: Norman Norris JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 566

496 S.W.2d 566

Norman Norris JONES, Appellant, v. The STATE of Texas, Appellee.

No. 45977.

Court of Criminal Appeals of Texas.

March 14, 1973.

Rehearing Denied June 20, 1973.

Second Rehearing Denied July 17, 1973.

Melvyn Carson Bruder, Dallas (Court-appointed on appeal only), for appellant.

Henry Wade, Dist. Atty., James B. Scott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of heroin. After the jury returned a verdict of guilty, punishment was assessed by the court at thirty-five years.

At the outset, appellant complains that the arrest and search were illegal so as to render any evidence seized incident thereto inadmissible.

Dallas police officers, armed with a search warrant, entered appellant's apartment on Junction Street, in Dallas, in the early morning hours of May 19, 1971, and seized nine capsules of heroin, a hypodermic syringe and needle and three burnt spoons.

Appellant urges that the testimony is inconclusive that the search which revealed the incriminating evidence occurred at the address described in the warrant.

The search warrant and affidavit upon which it is based describe the place to be searched as 'apartment 107 of a two story multi-unit apartment complex' located at 3212 Junction Street in the city of Dallas.

Appellant directs our attention to a 'prosecution report' prepared by Officer Green, of the Dallas Police Department, which reflects: 'Place of arrest 3213 Junction, Apt. 107.' At another place in the report after 'where and how committed,' the address is listed as '3212 Junction, Apt. 107,' the same address which appears in the affidavit and search warrant. At still another place in the 'prosecution report,' the address of appellant is listed as '3212 Junction, Apt. 107.'

J. T. Williams, one of the officers who made the search in question, testified in response to a question on cross-examination by appellant as to whether the address searched was 3213 Junction rather than 3212 Junction that 'to my knowledge, it was 3212. It was on the even side of the street,' and that the place searched was located in 'a multiple-unit apartment complex.'

Officer Green, who participated in the search and prepared the 'prosecution report,' testified that he thought the listing of the place of arrest as 3213 Junction was a typographical error.

In support of his contention, appellant cites Balch v. State, 134 Tex.Cr.R. 327, 115 S.W.2d 676; Combs v. State, 141 Tex.Cr.R. 476, 149 S.W.2d 971 and Childress v. State, 163 Tex.Cr.R. 467, 294 S.W.2d 110. In Balch v. State, supra, this Court held that an affidavit and search warrant describing premises as '302 East Robbins Street' did not authorize search of '304 Robbins Street.' In Combs v. State, supra, the search was held invalid where officers admitted that they erroneously described the premises which were searched when they prepared the affidavit for the search warrant. In Childress v. State, 163 Tex.Cr.R. 467, 294 S.W.2d 110, it was stated if the residence searched was not that described in the warrant, then no valid search warrant authorizing the search existed.

We find the instant case to be distinguishable from the foregoing cases relied on by appellant. The testimony of the officers, the return on the search warrant (reflects that seized property was taken from address described in the warrant), and the prosecution report, except that portion which shows the arrest to have taken place at 3213 Junction, reflect that the search was conducted at apartment 107 of a multi-unit apartment complex at 3212 Junction, the address described in the search warrant. We find that the State has discharged its burden of proving that the contraband was found upon the premises authorized to be searched by the search warrant. See Childress v. State, supra. Further, as long as the place searched was the residence described in the warrant, the fact that appellant was arrested at another address does not render the search invalid.

Appellant contends that the court erred in refusing his request that the court reporter take shorthand notes of the voir dire examination.

The record reflects that appellant, prior to trial, requested the court in writing to order the court reporter to record the questions and answers propounded to the jury during voir dire examination.

Appellant relies on Article 40.09, Sec. 4, Vernon's Ann.C.C.P., the pertinent portion of which provides: 'At the request of either party the court reporter shall take shorthand notes of all trial proceedings including voir dire examination. . . .'

The State relies on Miller v. State, Tex.Cr.App., 472 S.W.2d 269, in urging that the court's refusal of appellant's request to order the court reporter to record the voir dire examination is not reversible error. In Miller v. State, supra, the defendant's request that the court reporter take the voir dire examination was denied. This Court noted that there was not any suggestion that anything occurred on voir dire to the detriment of appellant and said that absent a showing of harm or prejudice, failure to comply with appellant's request is not reversible error. In Vines v. State, Tex.Cr.App., 479 S.W.2d 322, this Court held it was reversible error for the court to refuse to order the court reporter to record voir dire examination where some action occurring during the voir dire examination is assigned as error. See Young v. State, Tex.Cr.App., 488 S.W.2d 92, 94.

In the instant case, appellant has not shown harm or prejudice by virtue of the court's refusal to order the recording of the voir dire examination, Miller v. State, supra, nor has appellant claimed that some action occurring during voir dire examination constitutes error, Vines v. State, supra. Thus, reversible error is not shown, but in so holding, we reaffirm the position taken by this Court in Miller v. State, supra, where it was stated: 'We do not mean to imply that we approve the action of the trial court in refusing to comply with Art. 40.09, Sec. 4, V.A.C.C.P. The rule should be followed.' ¹

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge (dissenting).

Appellant contends that the court erred in refusing his request that the court reporter take shorthand notes of the voir dire examination.

The record reflects that appellant, prior to trial, requested the court in writing to order the court reporter to record the questions and answers propounded to the jury during voir dire examination.

Appellant relies on Article 40.09, Sec. 4, V.A.C.C.P., the pertinent portion of which provides: 'At the request of either party the court reporter Shall take shorthand notes of all trial proceedings including voir dire examination. . . .' (Emphasis added.)

While the statute makes it mandatory for the court reporter to take shorthand notes of the voir dire examination, upon the request of either party, this Court has held the failure to comply with such request is not reversible error absent a showing of harm or prejudice, Miller v. State, Tex.Cr.App., 472 S.W.2d 269, or where action occurring during the voir dire examination is alleged to be error. Vines v. State, Tex.Cr.App., 479 S.W.2d 322; Young v. State, Tex.Cr.App., 488 S.W.2d 92, 94.

This Court has urged trial judges to have the court reporter take all the proceedings of trial. In Miller v. State, supra, this Court said, 'We do not mean to imply that we approve the action of the trial court in refusing to comply with Art. 40.09, Sec. 4, V.A.C.C.P. The rule should be followed.' In the recent cases of Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.1973) and Jackson v. State, 491 S.W.2d 155 (Tex.Cr.App.1973), this Court urged trial judges, even in the absence of a request to do so, to have the court reporter record all the proceedings unless the same is waived.

The rule set forth in Vines v. State, supra, that a refusal of a request to have the court reporter to record the voir dire is not error unless action occurring during voir dire examination is claimed as error in effect places no additional burden on appellant. It does not require resourceful counsel to allege that error occurred during voir dire examination. The appellate court is placed in the position of holding that reversible error occurred merely because an appellant makes such an allegation. In Vines v. State, supra, the problem which arises when the voir dire examination is not taken or where only a portion of same is recorded is brought into focus. In the Vines case, the questions which were objected to on voir dire had been recorded, but the court noted that this did not render the court's error harmless since the propriety of refusing to permit a defendant to ask a particular question on voir dire examination of prospective jurors must often be based upon the relation of the question to the entire voir dire examination. The rule announced in Vines enables a defendant to make a 'tongue in cheek' request that the voir dire examination be recorded, hoping that the trial court will deny such request and, thus, open the door for reversal on appeal by merely claiming that error occurred during voir dire examination.

The statute makes it mandatory for the court reporter to record the voir dire examination upon request. The voir dire examination of the veniremen is a vital part of the trial.

A denial of a request to take same is not only a violation of the mandatory provision of Article 40.09, Sec. 4, V.A.C.C.P., which may very well result in a denial of the defendant's right of review of his case by an appellate court, but is also an invitation for the defendant to 'sand-bag' the trial court under the holding in Vines v. State, supra. ¹

The recording of all the proceedings in a trial affords the appellate court an opportunity to fairly review the case for ...