Jones v. State
| Citation | 942 S.W.2d 1 |
| Decision Date | 19 March 1997 |
| Docket Number | No. 0917-96,0917-96 |
| Parties | Derrick Derane JONES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Page 1
v.
The STATE of Texas, Appellee.
En Banc.
Douglas M. Barlow, Beaumont, for appellant.
Rodney D. Conerly, Asst. Dist. Atty., Beaumont, Matthew Paul, State's Atty., Austin, for the state.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
KELLER, Judge.
Appellant was convicted of attempted murder. He presented two points of error to the Court of Appeals. In his first point of error, he argued that the record was incomplete because a portion of the voir dire occurred before the court reporter was present in the courtroom. In his second point of error, appellant complained that the trial court erred in admitting an extraneous offense. The Court of Appeals reversed and remanded the case for a new trial on the basis of appellant's first point of error. Jones v. State, 923 S.W.2d 158 (Tex.App.--Beaumont 1996). We will reverse.
The record reveals that the trial court entered an order stating: "[T]he court reporter shall record all matters pertaining to this cause to include pre-trial hearing, voir dire, trial, final argument, and matters pertaining to sentencing." However, the statement of facts shows that the court reporter did not record some comments made by the trial judge to the venire:
THE COURT: Thank you. And I understand 30 minutes per side?
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[Defense counsel]: Yes, Your Honor.
THE COURT: Thank you. We'll stand in recess. Bring in the jury.
(THE COURT IS IN A MORNING RECESS.)
(VOIR DIRE PROCEEDINGS COMMENCED, AFTER WHICH THE COURT REPORTER WAS CALLED INTO THE COURTROOM TO MAKE A RECORD OF SAME.)
THE COURT:....It is your criminal justice system.
The Court of Appeals noted in its opinion that "a portion of the [trial] court's comments to the venire was not transcribed and is not in the record." Jones, 923 S.W.2d at 160 (emphasis and bracketed material added). The statement of facts also reveals that appellant made no objection regarding the failure to make a record of these comments. The Court of Appeals held that the record was incomplete without appellant's fault and that such incompleteness required a reversal and new trial under Tex.R.App. P. 50(e). Id. at 160-161.
The State contends that this case is governed by our recent opinion in Williams v. State, 937 S.W.2d 479, 486-87 (Tex.Crim.App.1996). In Williams, we held that Rule 50(e) applied only to instances in which a record was made but later lost or destroyed. Id. at 486. Because the "missing" portion of the record in Williams was never made, Rule 50(e) did not apply. Id. We further held that a party must object before the trial court to the court reporter's failure to record certain proceedings to complain of that error on appeal. Id. at 487. 1
We agree that Williams governs the outcome of this case. Appellant's complaint is that the court reporter was not present to record certain proceedings....
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