Martin v. State, 09-85-160

• Court: Court of Appeals of Texas
• Writing for the Court: BURGESS; BROOKSHIRE
• Citation: 744 S.W.2d 658
• Parties: Glenn Earl MARTIN, Appellant, v. The STATE of Texas, Appellee. CR.
• Docket Number: No. 09-85-160,09-85-160
• Decision Date: 13 January 1988

Page 658

744 S.W.2d 658 Glenn Earl MARTIN, Appellant,
v.
The STATE of Texas, Appellee. No. 09-85-160 CR. Court of Appeals of Texas,
Beaumont. Jan. 13, 1988.

Donald M. Brown, Morris, Brown & Davis, Conroe, for appellant.

Peter Speers, III, Dist. Atty., Conroe, for appellee.

OPINION

BURGESS, Justice.

Glenn Earl Martin was convicted of capital murder and was sentenced to life imprisonment in the Texas Department of Corrections. This occurred in July 1977. Martin filed a pro se notice of appeal, but this was four days beyond the time allowed to give notice of appeal. Martin then exhausted state habeas corpus remedies and began a legal journey through the federal courts. On July 18, 1984, the Fifth Circuit Court of Appeals affirmed the U.S. District Court's granting of an out-of-time appeal. Martin v. Texas, 737 F.2d 460 (5th Cir.1984). Martin then refiled a pro se notice of appeal on June 4, 1985 and was appointed counsel on June 19, 1985. On September 6, 1985, this appointment was reaffirmed and the trial court entered an order providing appellant a free transcript and statement of facts. That same day the court made the following findings:

1) That Roger Russell, then Official Court Reporter for the 9th District Court, recorded the proceedings in the case by stenograph machine and audio tape recording.

2) The stenographic notes of the proceedings are missing in their entirety with no possibility of being located.

3) The audio tape recordings of the proceedings are audible and comprehensible, however they are incomplete. One tape containing portions of the voir dire examination is missing and not likely to be located. One tape containing a part of the testimony of the State's case in chief is missing and cannot likely be located.

4) As a consequence of the foregoing, it is not possible to produce a complete record of defendant's trial.

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Thereafter, this court, in an unpublished opinion, Martin v. State, No. 09-85-160 CR (Tex.App.--Beaumont February 12, 1986), abated the appeal and ordered that the audio tape recordings be transcribed to determine if appellant's right of appeal could be fully protected. Subsequently, this court entered two additional orders concerning the filing of the statement of facts. On April 14, 1987, the last of twelve volumes of the transcript was filed with this court. Appellant now urges seven points of error. The first point of error concerns the status of the statement of facts and is dispositive of the appeal.

Under this point, appellant urges that a transcription of the audio recordings is not a transcription of the court reporter's official notes and therefore does not qualify as a statement of facts under the statutes and rules. We need not address that question since he also alleges that the transcription of the audio recordings is incomplete.

Appellant claims, and the state does not refute, that the statement of facts prepared from the audio tapes is deficient in the following manner:

a. the voir dire examination of twenty-eight members of the panel is missing;

b. the voir dire examination of four members of the jury is missing;

c. some unknown amount of the state's case in chief is missing.

The state, in its brief, says:

The State is painfully aware of the numerous Appellate Court decisions which hold that an Appellant who is deprived of a Statement of Facts on appeal without fault or lack of diligence on his part is entitled to a new trial....

....

In summary, it is the State's position, although based solely on notions of fundamental fairness--to the State--that granting a new trial because of the incomplete--not wholly missing--record is an inappropriately harsh remedy where the court reporter had every right in the world to destroy his notes....

As recently as April 8, 1987, our court of criminal appeals has faced the question of an incomplete record. In Dunn v. State, 733 S.W.2d 212 (Tex.Crim.App.1987), the court stated:

W]e have long held that the omission of a portion of the statement of facts from the record on appeal mandates reversal irrespective of whether the accused shows, or even alleges, that he suffered harm thereby

Id. at 216 (emphasis theirs). The state argues that Dunn should be distinguished because it was a capital murder case in which the death penalty was imposed and further that it is not a case in which the reporter's notes were allowed to be destroyed under the then existing statute. Both of these arguments fail. There have been numerous cases less than the death penalty in which new trials were ordered because of the lack of a statement of facts. There have also been numerous cases where new trials were ordered because of the granting of an out-of-time appeal after the court reporter's notes had been destroyed. Austell v. State, 638 S.W.2d 888 (Tex.Crim.App.1982); Ex parte Beck, 621 S.W.2d 810 (Tex.Crim.App.1981); Ex parte Garcia, 548 S.W.2d 405 (Tex.Crim.App.1977); Ex parte Young, 517 S.W.2d 288 (Tex.Crim.App.1974); Ex parte Campbell, 494 S.W.2d 842 (Tex.Crim.App.1973); Ex parte Coleman, 487 S.W.2d 119 (Tex.Crim.App.1972); Ex parte Ramirez, 483 S.W.2d 259 (Tex.Crim.App.1972); Ex parte Perez, 479 S.W.2d 283 (Tex.Crim.App.1972); Ex parte Gaines, 455 S.W.2d 210 (Tex.Crim.App.1970); Ex parte Veasley, 437 S.W.2d 857 (Tex.Crim.App.1969); Ex parte Gray, 437 S.W.2d 871(Tex.Crim.App.1969).

Therefore, faced with the unassailable fact that the record before us is, at best, incomplete, we sustain point of error number one.

The dissent concludes that appellant waived his right to appeal. This is beside the point at this juncture. The Fifth Circuit Court of Appeals was aware of the question of waiver because it stated in its first opinion in this case, Martin v. Texas, 694 F.2d 423 (5th Cir.1982): "At the sentencing hearing, Martin's retained counsel

Page 660

stated that he had discussed an appeal with his client and that Martin had 'no desire to make an appeal in this case'; no timely notice of appeal was filed." The Fifth Circuit then remanded the case to the district court for an evidentiary hearing on the issue of ineffective assistance of counsel. The Fifth Circuit later held that the failure of Martin's counsel to advise him of his right to court-appointed counsel if indigent amounted to ineffective assistance of counsel and, in view of the fact that he had not been advised of this right by the trial court, an out-of-time appeal should be granted. Martin v. Texas, 737 F.2d 460 (5th Cir.1984). This waiver issue has been fully and fairly litigated in the other courts. In any event, the state did not raise the waiver issue before this court. The dissent details the jury charge and a portion of the jury's verdict. It also details many of the facts. Perhaps this is to show that appellant was convicted of a horrible crime and is a "continuing threat to society." This is also beside the point. We are called upon only to address the legal issues raised. We have done so. The judgment of the trial court is reversed and remanded for a new trial.

REVERSED AND REMANDED.

BROOKSHIRE, Justice, dissenting.

The record of the sentencing sets out that the following proceedings were had:

"THE COURT: Are you gentlemen ready for sentencing at this time?

"MR. KEESHAN: Yes, Your Honor.

"MR. REEVERS: Yes, sir, we are.

"THE COURT: You, Glenn Earl Martin, who was tried in this case, and the jury returned a verdict on the 28th day of June, 1977, convicting you of the offense of capital murder.

"The penalty having been assessed by the jury of life and it therefore be the order and the judgment of this Court that you be taken by the Sheriff of this county and kept until you can be conveyed to Huntsville, Texas, and there you will serve the punishment as set forth in the judgment of the jury which is for your natural life.

"MR. REEVES: I would like, for the purposes of the record to explain to him that Mr. Martin waives his appeal. I am not employed to represent him in that case and this is after he has been fully informed of his rights that he will not pursue this case and he accepts this sentence and will make no appeal on it. (Emphasis ours)

"THE COURT: Thank you, Mr. Reeves.

"(REPORTER'S NOTE: Hearing concluded at this time." (Emphasis ours)

A fair and realistic reading of the record clearly demonstrates that Mr. Martin waived his right of appeal and that he had been fully informed of his appellate rights. Also: "[T]hat he will not pursue this case and he accepts this sentence and will make no appeal on it."

In applying the law to the facts, the Court, at the guilt or innocence stage, charged the jury:

"VIII.

"Now, if you find from the evidence beyond a reasonable doubt that Glenn Earl Martin, acting together with other parties, Joseph Blaine Starvaggi, G.W. Green, and Ronald Earl Bayer entered into a conspiracy to commit the offense of burglary of the building of John C. Denson, as the term 'burglary' has been heretofore defined, and that pursuant thereto, they did carry out, or attempt to carry out, such conspiracy to commit the offense of burglary in that on or about the 19th day of November A.D. 1976, in Montgomery County, Texas, the Defendant, Glenn Earl Martin, Joseph Blaine Starvaggi, and G.W. Green did enter a building then and there occupied, controlled and in the possession of John C. Denson, the owner, without the effective consent of said owner and that the Defendant, at the time of such entry, if any, had the intent then and there to commit the offense of theft of personal property therein being, and that while in the course of committing or attempting to commit such burglary, as the term 'burglary' has been heretofore defined, Joseph

Page 661

Blaine Starvaggi intentionally caused the death of John C. Denson, by shooting him with a gun, and that the Defendant, Glenn Earl Martin, pursuant to said conspiracy, if any, with the intent to promote and assist and aid Joseph Blaine Starvaggi in the commission of said burglary,...