Ortiz v. State, 04-91-00704-CR

• Decision Date: 15 September 1993
• Docket Number: No. 04-91-00704-CR,04-91-00704-CR
• Parties: Avelino ORTIZ, Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 170

862 S.W.2d 170

Avelino ORTIZ, Jr., Appellant, v. STATE of Texas, Appellee.

No. 04-91-00704-CR.

Court of Appeals of Texas San Antonio.

Sept. 15, 1993.

Wallace W. Canales, Alice, for appellant.

Richard C. Terrell, Dist. Atty., Alice, for appellee.

Before REEVES, C.J., and BUTTS and RICKHOFF, JJ.

OPINION

REEVES, Chief Justice.

Appellant seeks reversal of his felony conviction because part of the trial record has been lost or destroyed through no fault of his own. The State asserts, however, that appellant waived his right to appeal because appellant absconded after his conviction even though he was in custody at the time of his sentencing. We agree with appellant but disagree with the State. Appellant's cause is reversed and remanded.

FACTS

A jury convicted Avelino Ortiz, Jr. (appellant) of voluntary manslaughter and taxed him with a $10,000.00 fine and sentenced him to seven years confinement in the Institutional Division of the Texas Department of Justice.

FUGITIVE'S WAIVER OF APPEAL

On June 20, 1990, a jury found appellant guilty of voluntary manslaughter and assessed his punishment. On August 19, 1990, appellant was absent for his sentencing. Subsequently, appellant's bond was forfeited and an alias capias was issued for his arrest. On November 20, 1991, the trial court entered judgment on the jury verdict with appellant present. Appellant filed his notice of appeal on December 13, 1991.

The State asserts in a cross-point that appellant waived his right to appeal because he absconded after his conviction even though ultimately he was present for sentencing.

Disposition of the State's cross-point is dictated by Rule 60(b) of the Rules of Appellate Procedure.

(b) Criminal Cases. An appeal shall be dismissed on the State's motion, supported by affidavit, showing that appellant has escaped from custody pending the appeal and that to the affiant's knowledge, has not voluntarily returned to lawful custody within the State within ten days after escaping. The appeal shall not be dismissed, or, if dismissed, shall be reinstated, on filing of an affidavit of an officer or other credible person showing that appellant voluntarily returned to lawful custody within the State within ten days after escaping. If the appellant received a life sentence and is recaptured or voluntarily surrenders within thirty days after escaping, the appellate court, in its discretion, may overrule the motion to dismiss, or, if the motion has previously been granted, may reinstate the appeal.

TEX.R.APP.P. 60(b).

The State's cross-point must fail for at least two reasons. First, the State has not submitted an affidavit showing that appellant escaped from custody pending the appeal and that to the affiant's knowledge, has not voluntarily returned to lawful custody within the State within ten days after escaping. Second, Rule 60(b) does not apply when a defendant escapes when no appeal is pending. Marquez v. State, 795 S.W.2d 346, 347 (Tex.App.--Waco 1990, no pet.). If the appellant is back in custody when the record reaches the appellate court, the appeal will not be dismissed, but will be treated regularly. Marquez, 795 S.W.2d at 347. Such is the case here. Appellant was back in custody on November 20, 1991. The notice of appeal was filed on December 13, 1991. Thus, appellant was back in custody when the record reached the appellate court. Consequently, Rule 60(b) does not apply.

We distinguish federal case authority that the State cites in support of its cross-point. The dismissal of appeals of fugitives in Texas is governed by Rule 60(b) of Appellate Procedure. The case authority cited by the State, however, involves convictions pursuant to federal criminal statutes. In these cases the federal court applied the federal fugitive dismissal rule. See Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); United States v. Parrish, 887 F.2d 1107 (D.C.Cir.1989); United States v. Persico, 853 F.2d 134 (2d Cir.1988); United States v. Puzzanghera, 820 F.2d 25 (1st Cir.1987), cert. denied, 484 U.S. 900, 108 S.Ct. 237, 98 L.Ed.2d 195 (1987); United States v. London, 723 F.2d 1538 (11th Cir.1984), cert. denied, 467 U.S. 1228, 104 S.Ct. 2684, 81 L.Ed.2d 878 (1984). Rule 60 determines whether a fugitive's appeal is dismissed in a Texas criminal case rather than the federal fugitive dismissal rule. Thus, the authority cited by the State does not support its point of error.

The United States Supreme Court has recognized the validity of Texas law regarding the dismissal of a fugitive's appeal. The precursor to Rule 60 of Texas Appellate Procedure was upheld by the United States Supreme Court as not violative of equal protection. Additionally, the Court recognized that prisoners in Texas who escaped before invoking the appellate process would have a right to appeal after recapture. See Estelle v Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975). The Court acknowledged the Estelle holding in Ortega-Rodriguez v. United States, --- U.S. ----, ---- - ----, 113 S.Ct. 1199, 1204-05, 122 L.Ed.2d 581 (1993).

Finally, authority cited by the State has been overruled. The federal fugitive dismissal rule has been limited recently in Ortega-Rodriguez v. United States, --- U.S. ----, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). The Ortega-Rodriguez opinion addressed whether an appeal can be dismissed when a defendant flees the jurisdiction of a district court, and is recaptured before he invokes the jurisdiction of the appellate tribunal. Ortega-Rodriguez, --- U.S. at ----, 113 S.Ct. at 1205. In this holding the Court overrules United States v. Holmes, 680 F.2d 1372 (11th Cir.1982) ¹ to the extent that the Holmes rule rests on the premise that Molinaro's disentitlement theory by itself justifies dismissal of an appeal filed after a former fugitive is returned to custody. Ortega-Rodriguez, --- U.S. at ----, 113 S.Ct. at 1207. Consequently, the Court held that when a defendant flees while his case is pending in the district court though he is recaptured before sentencing and appeal, the defendant may be deemed to forfeit his right to appeal only if the appellate court finds some connection between the defendant's fugitive status and his appeal. Ortega-Rodriguez, --- U.S. at ---- - ----, 113 S.Ct. at 1208-09. Unless the defendant is at large during "the ongoing appellate process," the appeal generally will not be dismissed. Ortega-Rodriguez, --- U.S. at ----, 113 S.Ct. at 1208.

The State's cross-point is overruled.

MISSING RECORD

In his sole point of error, appellant asserts he is entitled to a new trial because a portion of the statement of facts of the voir dire proceedings has been lost or destroyed through no fault of his own.

Appellant filed his notice of appeal and instructed the official court reporter to prepare a record for appeal. The court reporter lost her notes regarding discussions between veniremen and the trial court during voir dire. Consequently, the statement of facts is incomplete.

It has long been the rule in Texas that when 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. Emery v. State, 800 S.W.2d 530, 533 (Tex.Crim.App.1990); Dunn v. State, 733 S.W.2d 212, 214 (Tex.Crim.App.1987). This rule applies whether all or only a portion of the statement of facts was omitted. Dunn, 733 S.W.2d at 214.

The Rules of Appellate Procedure have codified the law governing lost records:

When the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the appellate court as in other cases. If the appellant has made a timely request for a statement of facts, but the court reporter's notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts.

TEX.R.APP.P. 50(e); see also Emery, 800 S.W.2d at 533.

In order to prevail under Rule 50(e), an appellant must show, (1) that he made a timely request for a statement of facts, and (2) that the court reporter's notes and records have been lost or destroyed without appellant's fault. Culton v. State, 852 S.W.2d 512, 514 (Tex.Crim.App.1993). The burden is on appellant to provide this court with a record which supports his claim for relief. TEX.R.APP.P. 50(d); Epps v. State, 809 S.W.2d 770, 772 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd).

The record is clear that the court reporter's notes and records concerning bench discussions during voir dire have been lost or destroyed without appellant's fault. ² The State urges that appellant is not entitled to a new trial because the record before this court does not support appellant's contention that he requested timely the statement of facts from the court reporter.

Under Rule 50(e), a "timely request" is a request made in writing to the official court reporter on or at the time prescribed for perfecting the appeal. Culton, 852 S.W.2d at 514. Appellant did not file a motion for new trial. Consequently, the appeal is perfected "when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court or the day an appealable order is signed by the trial judge...." TEX.R.APP.P. 41(b)(1).

Appellant's sentence was imposed on November 20, 1991. For his request to be timely, appellant had until December 20, 1991 in which to request a statement of facts from the official court reporter.

Appellant filed his notice of appeal on November 20, 1991. On December 13, 1991, appellant filed his Designation of Evidence on Appeal (the motion). The State contends, however, that appellant has failed his burden to show that the court reporter was notified timely of the evidence designated on appeal. In support thereof the State cites that: (1) the motion was...