Walker v. State

• Decision Date: 13 May 1982
• Docket Number: No. A14-81-505-CR,A14-81-505-CR
• Citation: 642 S.W.2d 189
• Parties: Ronald WALKER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 189

642 S.W.2d 189

Ronald WALKER, Appellant, v. The STATE of Texas, Appellee.

No. A14-81-505-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

May 13, 1982.

Rehearing Denied June 3, 1982.

Terrill Flenniken, Houston, for appellant.

Winston Cochran, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and PRICE, JJ.

JUNELL, Justice.

This is an appeal from a conviction for aggravated robbery. Appellant contends that, because the record does not contain the requested transcription of the court reporter's notes, he is entitled to a new trial. For the reasons discussed below, we hold that the judicially created statement of the proceedings included in the record is not an adequate substitute for a transcription of the court reporter's notes, but Appellant's lack of diligence in seeking to obtain the requested statement of facts ¹ precludes our reversing for a new trial. We affirm.

Appellant was indicted for murder and aggravated robbery. He entered a plea of guilty to the offense of aggravated robbery. Evidence included a stipulation of evidence signed by Appellant. After completion of a presentence investigation, on October 16, 1980, Appellant was sentenced by the court, with no recommendation by the State, to twenty years imprisonment. On the same date Appellant gave notice of appeal and, in response to Appellant's filing of a pauper's oath and request for a statement of facts, the trial court appointed counsel for the appeal and signed an order directing the court reporter to prepare a statement of facts. On January 29, 1981, the court mailed notice of completion of the record to Appellant's attorney in compliance with Tex.Code Crim.Pro.Ann. art. 40.09 § 7 (Vernon Supp.1982). On February 9, 1981, the State filed an objection to the record, pointing out the fact that the record did not contain a transcription of the court reporter's notes. One of two court reporters from Hutchinson County, Texas, who had been working on a capital murder trial in the 262nd District Court of Harris County, had taken the notes of Appellant's trial in that court. Not until February 16, 1981, did Appellant's attorney contact the court reporter to request a statement of facts. It was subsequently determined that the notes from Appellant's trial could not be found. The trial judge then attempted, according to his best recollection, to reconstruct in question and answer form the hearing on Appellant's plea as well as the punishment hearing. On April 1, 1981, the judicially created statement of the proceedings was filed. The trial judge certified the statement as being the proceedings had in his court; notice of the completion of the record was sent on April 16; the record was approved on May 12; and notice of approval of the record was sent on May 14, 1981. On May 27, 1981, Appellant filed an objection to the record based on the lack of a transcription of the court reporter's notes. A hearing on Appellant's objection to the record was held on June 5, 1981, and the objection was overruled.

It is clear that the trial court has the duty to provide an indigent appellant with an adequate record for his appeal. Guillory v. State, 557 S.W.2d 118 (Tex.Cr.App.1977), and the authorities cited therein. We must decide whether the judicially created account of the proceedings is an adequate substitute for a transcription of the court reporter's notes when Appellant timely requested a statement of facts and did not agree to using the judge's statement of the proceedings in lieu thereof. Tex.Code Crim.Pro.Ann. art. 40.09 § 3 (Vernon Supp.1982), provides that "[t]he record may include a transcription of all or any part of the proceedings shown by notes of the reporter to have occurred before, during or after the trial and the same will constitute the statement of facts for the appeal...." [Emphasis added.] Section 11 of that article also contains the following provision for an agreed statement of the proceedings:

The parties may agree, with the approval of the trial court, upon a brief statement of the case and of the facts proven as will enable the appellate court to determine whether there is error in the trial. Such statement shall be copied into the record in lieu of the proceedings themselves.

In addition, the statute provides for the court's making entries in the record which are necessary to make a court reporter's transcription "speak the truth" in any particular in which the court, after hearing, finds it does not speak the truth, and also sets forth the procedure to be followed by the trial court in modifying or supplementing the record when necessary to make the record "speak the truth." Tex.Code Crim.Pro.Ann. art. 40.09 §§ 4, 7 (Vernon Supp.1982). In our opinion the statute's grant of power to the trial court to correct, modify or supplement the record does not encompass the power to prepare and substitute a statement of facts without the agreement of the parties. Prior to the enactment of article 40.09, Tex.Code Crim.Pro. art. 759a § 1(E) (1951) provided as follows:

If the Statement of Facts is agreed to by the defendant or his counsel, and the attorney representing the state, it need not be approved by the court. If the parties cannot agree on a Statement of Facts within seventy-five (75) days after giving of notice of appeal, the trial judge shall prepare and certify to a Statement of Facts.

The statute has undergone several revisions and the above language has been omitted from the current statute. The concurring opinion in Ex parte Contreras, 586 S.W.2d 550, 552 n. 1. (Tex.Cr.App.1979), suggests, and we hold, that the trial court no longer has the power under the current statute to prepare a substitute statement of facts when the parties do not agree upon one. The alternative of utilizing an agreed statement pursuant to section 11 is available to the parties; that alternative is, however, optional. An appellant may not be compelled to utilize the statutory alternative of an agreed statement of facts. Ex parte Mays, 510 S.W.2d 606 (Tex.Cr.App.1974); Ex parte Contreras, supra; Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972). To substitute a judicially created statement of the proceedings without the consent of the parties has the effect of forcing an appellant to agree to a statement in lieu of a court reporter's transcription. The statute provides for no such alternative. We therefore conclude that Appellant was indeed deprived of an adequate statement of facts after having timely requested a transcription of the court reporter's notes.

We next consider whether Appellant has been deprived of a statement of facts after having exercised reasonable diligence to obtain one and without fault on his part. Tex.Code Crim.Pro.Ann. art. 40.09 § 5 (Vernon Supp.1982) places responsibility for obtaining a transcription of the court reporter's notes on the party who requests the same:

If a party desires to have all or any portion of a transcription of the court reporter's notes included in the record, he shall so designate with the clerk in writing and within the time required by Section 2 of this Article. Such party shall then have the responsibility of obtaining such transcription from the court reporter and furnishing the same to the clerk in duplicate in time for inclusion in the record and the appellant shall pay therefor .... [Emphasis added.]

Section 3 of article 40.09 sets out the applicable time limits for filing the transcription with the clerk of the court:

... A transcription applicable to any proceeding occurring before notice of appeal shall be filed with the clerk for inclusion in the record not later than 60 days after notice of appeal....

In assessing an appellant's diligence in obtaining a statement of facts, we view the circumstances in each case from the appellant's standpoint, consider what an ordinary prudent person would do in the same or similar circumstances, and resolve any reasonable doubt in favor of the appellant. Timmons v. State, 586 S.W.2d 509, 512 (Tex.Cr.App.1979); Lamkin v. State, 138 Tex.Cr.R. 311, 136 S.W.2d 225, 228 (1940). In the instant case notice of appeal was given and 123 days passed before an attempt was made to contact the court reporter. Given the above statutory requirements, it is difficult to characterize such a delay as an exercise of due diligence. However, we consider a review of the case law necessary to our conclusion. On September 19, 1979, the Court of Criminal Appeals handed down two decisions involving appellate records in which statements of facts were missing: Timmons v. State, supra, and Ex parte Contreras, supra. Timmons reversed a misdemeanor theft conviction for lack of a statement of facts where the court reporter's notes had been lost and there was...