Warminski v. Dear, 65190

• Decision Date: 15 October 1980
• Docket Number: No. 65190,65190
• Citation: 608 S.W.2d 621
• Parties: John WARMINSKI, Relator, v. Honorable James F. DEAR, Jr., Judge 126th. Judicial District Court, Respondent.
• Court: Texas Court of Criminal Appeals

Page 621

608 S.W.2d 621

John WARMINSKI, Relator, v. Honorable James F. DEAR, Jr., Judge 126th. Judicial

District Court, Respondent.

No. 65190.

Court of Criminal Appeals of Texas, En Banc.

Oct. 15, 1980.

Rehearing Denied Dec. 10, 1980.

Kenneth E. Houp, Jr., Austin, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

The question presented is whether the relator may compel the respondent by writ of mandamus to furnish him a transcription of the court reporter's notes (statement of facts) without cost for the purpose of his criminal appeal.

The relator was found guilty by a jury of attempted capital murder, and his punishment was assessed at ten (10) years' imprisonment by the court. He gave notice of appeal after the formal pronouncement of sentence on April 23, 1980. On April 28, 1980, relator filed an affidavit requesting a transcription of the court reporter's notes without charge because of his indigency. The affidavit was expressly filed pursuant to Article 40.09, § 5, V.A.C.C.P.

On June 11, 1980, the respondent conducted a hearing upon relator's affidavit as contemplated by Article 40.09, § 5, supra. Prior to the hearing, relator insisted that the court had no discretion except to order, without a hearing, a transcription of the court reporter's notes since his affidavit was uncontested and not controverted. Relator cited and relied upon Articles 38.02 and 40.10, V.A.C.C.P., and Rule 355 of the Texas Rules of Civil Procedure. The respondent overruled relator's contention, conducted a hearing on relator's affidavit of indigency after which, exercising his discretion, the respondent denied the relief requested.

Prior to the 1965 Code of Criminal Procedure, the former Code of Criminal Procedure (1925) in Article 759a, § 5, provided:

"When a defendant in a felony case appeals and is not able to pay for a transcript of the evidence, he shall make an affidavit of such fact and upon the making of such affidavit the court shall order the official court reporter to make a Statement of Facts in narrative or question and answer form, as the defendant in said affidavit shall request...."

Based on the wording of said statute, this court held in Zamora v. State, 309 S.W.2d 447 (Tex.Cr.App.1957), that the trial judge had no right to conduct a hearing, hear evidence nor to determine whether the indigency affidavit was true or false. And if the trial court heard evidence, it would not be considered by the appellate court. Under the statute, the trial court had no discretion except to order the court reporter to furnish a transcript of the evidence when the affidavit was filed stating the defendant was unable to pay for or give security for the transcript. ¹

Article 40.09, § 5, V.A.C.C.P., 1965, was spawned in the wake of Zamora and provided in part:

".... The court will order the reporter to make such transcription without charge to defendant if the court finds after hearing in response to affidavit by defendant that he is unable to pay or give security therefor...." (Emphasis supplied.)

The thrust of the reform was to submerge the hard effect of Zamora in criminal cases. No longer was a filed affidavit of indigency, standing alone, sufficient to trigger an automatic order requiring a free transcription of the court reporter's notes. Any order for a free transcription was to be entered in the discretion of the trial court after a finding following a hearing in response to the indigency affidavit. The trial court's hands were no longer tied, and lack of controversion or agreement of parties was not controlling. Such reform procedure was in direct answer to Zamora and designed for criminal appeals where there is a large volume of indigency affidavits filed for the purpose of appeal. The 1965 reform has served us well in criminal cases since its advent as demonstrated by many appeals.

In the instant case, the trial court conducted a hearing upon the affidavit as provided in Article 40.09, § 5, supra, and after hearing evidence, exercised its discretion and denied relief. While this court has the authority to issue the writ of mandamus in criminal cases, Article V, § 5, Texas Constitution, the writ of mandamus will not be issued in the instant case under the circumstances.

Relator, represented by retained counsel, apparently apprehensive that his evidence of indigency wouldn't float during an indigency hearing, argued to the trial court and now to this court that the situation is controlled by Rule 355 of the Texas Rules of Civil Procedure in light of Articles 38.02 and 40.10, V.A.C.C.P., and that since the State had not controverted his affidavit as required by Rule 355, he was entitled to a free record without a hearing as the court had no discretion, and he argues to this court that since no discretion was involved he is entitled to the granting of his application for writ of mandamus.

Article 38.02, supra, provides:

"The rules of evidence prescribed in the statute law of this State in civil suits shall, so far as applicable, govern also in criminal actions when not in conflict with the provisions of this Code or of the Penal Code." (Emphasis supplied.)

Article 40.10, supra, provides:

"The provisions of the rules of civil procedure, insofar as the same are applicable and not in conflict with the provisions of this Code, as such rules now exist or may hereafter exist, shall govern bills of exceptions and statements of fact." (Emphasis supplied.)

Rule 355 of the Texas Rules of Civil Procedure provides:

"(a) When the appellant is unable to pay the costs of appeal or give security therefor, he shall be entitled to prosecute an appeal by filing with the clerk his affidavit stating that he is unable to pay the costs of appeal or any part thereof, or to give security therefor.

"(b) The appellant or his attorney shall forthwith give notice of the filing of such affidavit to the opposing party to his attorney.

"(c) Any interested officer of the court or party to the suit, may, by sworn pleading, contest the affidavit within ten days after the giving of such notice whereupon the court trying the case (if in session) or (if not in session) the judge of the court or county judge of the county in which the case is pending shall set the contest for hearing and the clerk shall give the respective parties notice of such setting.

"(d) Upon such hearing the burden of proof shall rest upon the appellant to sustain the allegations of his affidavit.

"(e) Where no contest is filed in the allotted time the allegations of the affidavit shall be taken as true.

"(f) Where the appellant is able to pay or give security for a part of the costs of appeal he shall be required to make such payment or give such security (one or both) to the extent of his ability."

Article 38.02, supra, provides only that the civil rules of evidence shall govern in criminal cases when not in conflict with the Penal Code and the Code...