Melendez v. State

• Decision Date: 18 December 1996
• Docket Number: No. 808-95,808-95
• Parties: Eliseo MELENDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 287

936 S.W.2d 287

Eliseo MELENDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 808-95.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 18, 1996.

Floyd W. Freed, III, Houston, for appellant.

Dan McCrory, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

This cause involves, among other prosy inquiries, where in a complete appellate record would one reasonably familiar with Texas Rules of Appellate Procedure ("TRAP") expect to find admitted exhibits (other than physical evidence): transcript or statement of facts? TRAP 50(a). More to the point, we granted the State's sole ground for review in terms of whether the court of appeals erred in concluding that appellant is entitled to a new trial under TRAP 50(e). ¹

A host of adverse decisions rejecting attempted appeals makes painfully evident that a rational process for timely perfecting a statement of facts and filing the same has troubled, if not eluded, legislators and more importantly the bench and bar ever since the first scheme was devised. We have found it helpful to examine this problem in its historical context, and to that end we set out in the margin a summary explication of evolutionary developments informing the Court in creating our present rules. ² It was against that background that the Court along with the Supreme Court formulated, adopted and promulgated the TRAP rules, effective September 1, 1986. In the doing, we abandoned, modified and revised many aspects and requirements in the former rules and statutes, created and established some new rules, and repealed all affected statutes.

For examples, clerk of court is responsible for preparation of transcript, court reporter for the statement of facts, TRAP 51(c) & 53(a) & (b), respectively; no longer are the opposing party and the trial judge required to approve the statement of facts, TRAP 53(f); once filed in the appellate court, inaccuracies, omissions and defects in the record may be efficiently and expeditiously remedied, TRAP 55. And, particularly germane here, after bringing forward the last sentence in former article 44.11 (substitution of record), we added the second sentence in TRAP 50(e) (new trial where notes and records of court reporter are lost or destroyed).

I

A

The court of appeals determined that exhibits are part of the statement of facts, so the latter is not complete without the former, and an appellate court cannot review sufficiency of evidence without a complete statement of facts. Considering that three of eight exhibits admitted in the guilt stage were missing from the statement of facts, at least one of which was deemed "crucial," that the State sought to substitute affidavits from trial attorneys for two exhibits but appellant opposed the substitution, in accordance with TRAP 50(e) the court of appeals reversed the judgment below and remanded the cause for a new trial. Melendez v. State, 902 S.W.2d 28, 30 (Tex.App.--Houston [1st] 1995).

B

The State questions the threshold determination concerning the proper status of exhibits, advancing essentially a recent split decision in Gomez v. State, 905 S.W.2d 735 (Tex.App.--Houston [14th] 1995), PDR granted. It also contends that appellant failed to demonstrate "due diligence" to secure a complete statement of facts, relying primarily on Culton v. State, 852 S.W.2d 512 (Tex.Cr.App.1993). We address each matter in turn.

II

A

Under former article 40.09, paragraph 1, V.A.C.C.P., there was but one "appellate record," and the Court had no doubt that "[e]xibits are part of the appellate record which shall be included, whether designated or not." Durrough v. State, 693 S.W.2d 404 (Tex.Cr.App.1985). ³ It is noteworthy that former article 40.09, paragraph 1, expressly directed the clerk of the trial court to include in the record, "whether designated or not ... copies of all exhibits on file, other than physical exhibits or [certain described] documents[.]" See West's Texas Code of Criminal Procedure (Pamphlet 1985 Ed.). However, that article was repealed by promulgation of TRAP rules which modified the process.

Then there was a single integrated "appellate record" that along with mandated and requested papers and other germane materials "may include a transcription of all or any part of the proceedings shown by notes of the reporter." Former article 40.09, paragraphs 2, 3 and 4. Now there is a record on appeal consisting of two separate parts, i.e., transcript and statement of facts. TRAP 50(a). No longer does a statute or rule impose upon the clerk of court a responsibility to include admitted exhibits in the transcript. Compare TRAP 51; see TRAP 53. The clerk must prepare the transcript in the form directed by this Court, and immediately transmit it to the appellate court without regard for condition of the statement of facts, if any. TRAP 51(c). The court reporter prepares and certifies the latter; the appellant causes the statement of facts to be filed with the appellate clerk; a duplicate is filed with the trial clerk. TRAP 53(f), 53(k) & 53(l ).

B

When requested to do so, the court reporter is duty bound to attend sessions of court and make "a full record of the evidence;" later, to file "all exhibits with the clerk." TRAP 11(a)(1) & (3). In that connection, conventional practice is for the offering party to have the court reporter "mark" an exhibit for identification, a witness identify it and, after receiving a ruling admitting the exhibit and using it as evidence, ultimately to return it to the court reporter to become part of the "record of the evidence." Then whenever safe-keeping interests are best served, the court reporter files all exhibits received in evidence with the clerk of court. Ibid.

Generally the party desiring to appeal must timely make a written request to the official court reporter, designating portions of the evidence to be included therein. TRAP 53(a). However, where the defendant properly claims and the trial judge determines that party is unable to pay or give security for preparation of the statement of facts, the court shall order the court reporter to furnish the same. TRAP 53(j)(2); Dunn v. State, 733 S.W.2d 212, at 213-214 and n. 3 (Tex.Cr.App.1987); 1 Branch's Annotated Penal Code (2nd Ed) § 617, at 593 (collating cases). ⁴ When a complete statement of facts is requested or ordered the court reporter is duty bound to ensure the statement of facts contains a bobbed copy (or written description for "physical" material) of each exhibit admitted as evidence. TRAP 11(a)(4); TRAP 53(c) (formal parts shall be excluded or abridged).

As with the transcript, this Court is authorized to make orders "directing the form of the statement of facts and the court reporter will prepare the same in conformity therewith." TRAP 53(h). The Court has done so, and its order has been in effect since September 1, 1986. Appendix for Criminal Cases, Texas Rules of Appellate Procedure, West's Texas Statutes and Codes (Pamphlet 1996) 473. Actually, the order is patterned on Rule 201 of former Rules of Post-Trial and Appellate Procedure in Criminal Cases, effective September 1, 1981. See Vol. 617-618 Southwestern Reporter (Texas Cases) xxxvii ff (1981).

Regarding the statement of facts, Appendix Rule 1(b)(4) provides:

"The court reporter shall also show in a separate table in the first volume of the statement of facts the page at which any exhibit or other document copied therein appears, and the pages at which it is identified ... offered, marked, received, and shown. The table of exhibits may be as shown in the following example or in any other form which shows the same information. (example omitted)."

Rule (1)(b)(5) contemplates that neither "physical evidence " nor an original exhibit is to be included in the record. Instead each item of physical evidence "must be described alone on a separate piece of paper;" then it and a legible copy of other exhibits must appear respectively on a separate page of the statement of facts. If a legible copy of a photograph or any other paper cannot be made, "the original exhibit shall be included in the record under order of the trial court made pursuant to Rule 51(d)."

Rule(1)(b)(6) further directs:

"Copies of exhibits received in each separate proceeding or hearing, including those descriptions of physical evidence, will be placed in numerical order at the end of the statement of facts of that proceeding or hearing, or in a separate volume if the exhibit material is voluminous."

Given the foregoing TRAP mandates and Appendix Rules, beyond peradventure this Court made abundantly clear its intent, purpose and mandates concerning exhibits. We therefore hold that when a complete statement of facts is timely requested by appellant or ordered by the trial court the court reporter shall include and display in the statement of facts copies of all admitted exhibits in the form and manner prescribed by the rules of this Court. ⁵ We further hold on much the same basis that such exhibits are part and parcel of "notes," and also constitute "records," of the court reporter within intendment and for purposes of TRAP 50(e).

Contrary to notions expressed and arguments developed in Gomez v. State, supra, at 737-738 and 738-739, policy considerations of respective functions and usage in actual practice support the conclusion that "notes" and "exhibits" are mutually complementary products generated or perfected and maintained by the court reporter. Customarily a putative exhibit is "marked" for identification, "notes" reflect testimony given to identify it, the proffer, any objection, the ruling and, most likely, further testimony concerning it. The exhibit thus becomes a "record" of the court reporter, an integral part of the "record of the evidence," albeit separately deposited in a repository until retrieved by the court reporter to make copies and...