White v. State, 01-95-00019-CR

• Decision Date: 25 January 1996
• Docket Number: No. 01-95-00019-CR,01-95-00019-CR
• Parties: Charlie Coleman WHITE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 78

916 S.W.2d 78

Charlie Coleman WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 01-95-00019-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 25, 1996.

Discretionary Review Refused May 22, 1996.

Brian W. Wice, Houston, for Appellant.

John Holmes, District Attorney, Carol Cameron, Assistant District Attorney, for Appellee.

Before HUTSON-DUNN, O'CONNOR and ANDELL, JJ.

OPINION

HUTSON-DUNN, Justice.

The issue in this case is whether appellant, Charlie Coleman White, is entitled to a new trial because the statement of facts from his trial has been lost or destroyed. We reverse and remand.

On March 5, 1987, appellant was convicted of delivery of cocaine and sentenced to 35-years confinement. No appeal was filed at the time of conviction. ¹ On November 9, 1994, over seven years after his conviction, appellant was granted an out-of-time appeal by the Court of Criminal Appeals and attorney Brian W. Wice was appointed to represent appellant on appeal.

On April 7, 1995, appellant filed a "Motion for Summary Reversal," in which he claimed that the court reporter from his trial was deceased and that the current court reporter was unable to locate her predecessor's notes. This Court remanded the case to the trial court to determine (1) whether the court reporter has recorded the proceeding, and (2) whether her notes could be located.

At the hearing, Arlene Webb, the current court reporter for the 232nd District Court of Harris County, testified that sometime in November 1994, Brian Wice called her and asked about obtaining the court reporter's notes from appellant's trial. Ms. Webb told Wice that Brenda Palmer was the court reporter at the time of appellant's trial. Brenda Palmer was deceased at the time of Wice's request.

Ms. Webb told Wice she looked through some of Ms. Palmer's tapes, but she could not find a record from appellant's trial. Ms. Webb also called Ms. Palmer's son, but he informed her he had none of Ms. Palmer's tapes at his home. Ms. Webb concluded she was unable to find any notes Ms. Palmer may have taken at appellant's trial.

On cross-examination by the State, Ms. Webb testified that although she talked with Wice on the telephone, she never received a written request to transcribe or prepare the statement of facts from appellant's trial or a designation of record for appeal. Ms. Webb also testified she had no personal knowledge that Brenda Palmer actually took down testimony or recorded any hearings from appellant's trial.

Appellant testified that during his trial in 1987, he remembered a woman sitting at a court reporting machine. Although he was not certain, he believed she was a black woman. Appellant recalled the woman making motions with her hand that indicated she was operating the stenographic machine.

Sally Murphy, a deputy district clerk for Harris County, testified appellant did not file a designation of record in his cause.

Finally, Carol Cameron, an assistant district attorney for Harris County, testified the State never filed a response to appellant's "Motion for Summary Dismissal" in this Court.

The trial court also took judicial notice of the entire record in appellant's cause. The transcript shows that on March 2, 1987, the State announced ready for trial, and the court granted a motion to adopt the pleadings and rulings made in appellant's earlier trial, which had ended in a mistrial. The space indicating whether a court reporter was present is marked "Court Reporter: --------." In the previous trial, appellant had requested a court reporter, although there is no ruling on that request in the record.

The docket sheet from March 3, 1987, indicates Brenda Palmer was the court reporter. The docket sheet also indicates that testimony was heard regarding a plea bargain appellant refused "as reflected in [c]ourt [r]eporters notes." The docket sheet also shows the State's motion in limine was granted "as reflected in [c]ourt [r]eporters notes."

The docket sheet from March 4, 1987, again shows Brenda Palmer was the court reporter. It also shows that appellant's motion for an instructed verdict was overruled "as reflected in the [c]ourt [r]eporters notes."

The docket sheet from March 5, 1987, indicates Brenda Palmer was the court reporter. It also shows a hearing was held outside the presence of the jury "as reflected in the [c]ourt [r]eporters notes." It also indicates arguments were heard "as reflected in the [c]ourt [r]eporters notes." Defense objections to the charge were also denied "as reflected in [c]ourt [r]eporters notes."

COMPLIANCE WITH TEXAS RULE OF APPELLATE PROCEDURE 50(e)

TEX.R.APP.P. 50(e) provides:

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 had 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.

(Emphasis added).

The State argues that appellant has failed to meet his burden under rule 50(e) because: (1) appellant has failed to demonstrate that the court reporter's notes were lost or destroyed; and (2) by not showing that he timely requested a statement of facts, appellant has failed to exercise due diligence in attempting to secure a complete statement of facts.

A. Was a record made and was that record lost or destroyed?

The evidence adduced at the hearing shows that in his first trial, appellant requested that a court reporter record the proceedings. In the second trial, all pleadings from the previous trial were adopted, although there is no affirmative ruling by the trial court on appellant's request for a court reporter. However, the docket sheet entries show that "Brenda Palmer" was the court reporter during appellant's second trial. In fact, several of the docket sheet entries say that certain events took place during the trial "as reflected in the court reporter's notes." This evidence would indicate that Brenda Palmer was present during the proceedings and was recording the trial. This evidence is also consistent with appellant's testimony that he recalled a woman at trial who appeared to be operating a stenographic machine. The State offered no controverting evidence. Therefore, appellant has met his burden of showing that his trial was recorded.

Arlene Webb, the present court reporter, testified that after she was contacted by Mr. Wice she attempted to locate Brenda Palmer's notes from appellant's trial. By the time appellant was granted an out-of-time...