Tyrone Lamond Banks v. State, No. 05-05-01050-CR (Tex. App. 7/31/2006)
| Decision Date | 31 July 2006 |
| Docket Number | No. 05-05-01055-CR.,No. 05-05-01056-CR.,No. 05-05-01051-CR.,No. 05-05-01052-CR.,No. 05-05-01053-CR.,No. 05-05-01050-CR.,No. 05-05-01054-CR.,05-05-01050-CR.,05-05-01051-CR.,05-05-01052-CR.,05-05-01053-CR.,05-05-01054-CR.,05-05-01055-CR.,05-05-01056-CR. |
| Parties | TYRONE LAMOND BANKS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Reverse and Remand.
Before Justices WRIGHT, MOSELEY, and LANG.
Tyrone Lamond Banks appeals four convictions for aggravated assault and three convictions for aggravated robbery. In June 1997, appellant pleaded guilty in each case without an agreement as to punishment. After a hearing, the trial court assessed punishment at fifteen years' confinement and a $500 fine in each aggravated assault case, and sixty years' confinement and a $1000 fine in each aggravated robbery case. Thereafter, appellant filed post-conviction writs of habeas corpus with the court of criminal appeals. Appellant alleged that he was denied his right to appeal because even though appellant informed trial counsel he desired to appeal these cases, trial counsel failed to timely file notices of appeal. On April 27, 2005, the court of criminal appeals granted out-of-time appeals from all seven judgments. See Ex Parte Banks, No. AP-75, (Tex. Crim. App. 2005) (per curiam) (). Appellant timely filed his notices of appeal in each case.
On September 23, 2005, this Court ordered the trial court to make findings regarding the reporter's record in these appeals. Following a hearing, the trial court determined that the court reporter who recorded the proceedings died in 2004, a search was made but the notes could not be located, appellant was not at fault for the loss or destruction of the notes, and the parties could not agree on a substitute record. This Court later adopted the trial court's findings.
In a single issue, appellant contends that pursuant to rule of appellate procedure 34.6(f), he is entitled to a new trial. Rule 34.6(f) entitles an appellant to a new trial if (1) he has timely requested the reporter's record, (2) a significant portion of the court reporter's notes has been lost or destroyed through no fault of appellant, (3) the lost or destroyed portion is necessary to the appeal's resolution, and (4) the parties cannot agree on a complete reporter's record. Tex. R. App. P. 34.6(f).
With respect to the requirement that the missing portion be necessary to the appeal's resolution, appellate courts can only evaluate the necessity of the missing portion of the record in the context of a specific appellate complaint. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999). Rule 34.6(f)(3) requires a harm analysis; reversal is not automatic. Issac, 989 S.W.2d at 757. There is no dispute that the court reporter's notes have been lost or destroyed through no fault of appellant and that the parties cannot agree on a complete reporter's record. However, the State contends that appellant is not entitled to a new trial because the reporter's record is not necessary for the resolution of these appeals and because appellant did not take affirmative steps to ensure the record was preserved. We address each of these arguments in turn.
We first address the State's argument that because appellant did not request the record until after the time the court reporter was permitted to destroy the notes, appellant should not be permitted to benefit from rule 34.6(f). In support of this argument, the State relies on the government code which provides that the court reporter must "preserve the notes for future reference for three years from the date on which they were taken." See Tex. Gov't Code Ann. § 52.046(a)(4) (Vernon 2005); Alvear v. State, 25 S.W.3d 241, 245 (Tex. App.-San Antonio 2000, no pet.) ( that because appellant failed to take action to preserve records, request for reporter's record in out-of-time appeal was untimely). We cannot agree.
When the court of criminal appeals granted appellant out-of-time appeals, it instructed appellant that for purposes of the Texas Rules of Appellate Procedure, all time limits would be calculated as if the sentences had been imposed on April 25, 2005. The rules of appellate procedure provide that to be timely, a request for the reporter's record must be made at or before the time for perfecting the appeal. See Tex. R. App. P. 34.6(b)(1). Here, the time for perfecting the appeals was on or before May 25, 2005. By that time, the court reporter had died, and her notes could not be located. Under these circumstances, and if the remaining conditions of rule 34.6(f) are met, appellant would be entitled to a new trial. See White v. State, 916 S.W.2d 78, 81-82 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (); Duran v. State, 868 S.W.2d 879, 882 (Tex. App.-El Paso 1993, pet. ref'd) (). We acknowledge the tension between the government code and the rules of appellate procedure, but conclude whether the request is timely for purposes of rule 34.6 must be determined from language of the rule itself and not from the provisions of the government code generally setting out the duties of court reporters.
The State also maintains that it is possible to properly analyze appellant's convictions by examining the clerk's records alone, and thus the reporter's record is not necessary in these cases. According to the State,...
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