Williams v. State, 40575

• Decision Date: 04 October 1967
• Docket Number: No. 40575,40575
• Citation: 427 S.W.2d 868,88 S.Ct. 1826
• Parties: Earlando WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 868

427 S.W.2d 868

Earlando WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 40575.

Court of Criminal Appeals of Texas.

Oct. 4, 1967.

Rehearing Denied Dec. 6, 1967.

Certiorari Denied May 20, 1968. See 88 S.Ct. 1826.

Emmett Colvin, Jr. (on appeal only), Dallas, for appellant.

Henry Wade, Dist. Atty., Frank Watts, Scott Bradley, Robert H. Stinson and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

ONION, Judge.

OPINION

This is an appeal from a conviction in a bifurcated trial for the offense of rape with the punishment assessed by the jury at death.

The record reflects that on August 2, 1965, at approximately 1:15 p.m. the appellant, a 17 year-old Negro male, entered the home of the prosecutrix, a housewife, who at the time was watching television in the den with her two sons, ages three years and eighteen months. Appellant raised a knife to the throat of the prosecutrix and told her to take off her clothes. When she did not immediately respond, appellant threatened to kill her. The prosecutrix pleaded with appellant not to harm her children and offered him money to leave and related to the appellant that she was suffering from a parasitic infection of the vagina, a vaginal discharge, causing swelling and irritation in that area. Nevertheless, appellant caused her to remove her blouse and shorts and at knife point forced her to a couch in the room. There, without her consent and in the presence of her children, appellant had an act of sexual intercourse with the prosecutrix. Following the attack the appellant cut the telephone cord and left through the back door. The prosecutrix made immediate outcry to a neighbor. A medical examination of the prosecutrix at 3:30 p.m. that day disclosed the presence of spermatozoa.

A partial palm print lifted from a doorknob in the prosecutrix's home by the Dallas Police Department was later identified as the print of the appellant Williams from a comparison of prints taken after his arrest on November 10, 1965. He was identified by the prosecutrix in a police lineup the day following his arrest as well as in court during the trial.

The appellant's defense was that of alibi which the jury chose to disbelieve.

Appellant's initial ground of error is that he was deprived, by death of the court reporter, of a complete transcription of the record on appeal in violation of his rights under the Texas Constitution and the Fourteenth Amendment of the United States Constitution.

Following the appointment of one of appellant's trial attorneys and an additional counsel for the purpose of appeal, the record reflects that on June 7, 1966, the court ordered preparation of all proceedings recorded by the court reporter upon a pauper's oath. Thereafter, the court reporter, Jimmy Muleady, died on July 23, 1966, after he had transcribed (though had not certified) all of the trial testimony, the State's opening argument and a small portion of the opening argument for the defense. When the attorneys were subsequently unable to agree on a record, the appellant filed his formal bill of exception No. 1, which was refused. The careful trial judge secured a new court reporter, however, with 17 years of experience as an official court reporter, to complete the transcription. Such reporter used Gregg shorthand as had the deceased reporter, had known him and was familiar with his work. Thereafter, such reporter completed the record using the shorthand notes of the late reporter as well as recording machine discs employed by the deceased during the trial. On November 1, 1966, a hearing was held on the certification of the statement of facts (as distinguished from the approval of the entire record). At such hearing it developed that the new reporter had proof read the work transcribed by the deceased reporter, but had not compared such completed work with the shorthand notes and audio discs of the deceased reporter. Thereupon, the hearing was recessed until December 21, 1966, to permit such comparison. At the later hearing the reporter testified that after comparison he had made a number of pen and ink corrections in the transcribed work of the deceased reporter and had now certified that the transcription was 'full, accurate and complete * * * as shown by the original shorthand notes taken at time' and as transcribed by him. Appellant's counsel refused to approve the transcription of court reporter's notes, but it was approved by the State's attorney and approved after such hearing by the judge who had presided at the trial.

The order approving the record in its entirety was entered on January 16, 1967, following a hearing thereon. Such order shows the trial judge found record 'as truly reflecting all the matters and proceedings had and done in this cause.'

While at all of such hearings the appellant was present and represented by counsel, he did not offer any proof of any error or omission in record, but merely questioned whether certain words in several sentences had been properly transcribed. The matters brought to the court's attention, if in fact they are errors, appear to be typographical mistakes, insignificant in nature. No showing has been made that the statement of facts on file herein is incorrect in any material respect.

It appears to be appellant's position that since he has suggested or indicated several possible errors, however inconsequential or insignificant, there is a possibility that the record may contain some other errors which deprive him of a complete and accurate record by virtue of the court reporter's death entitling him to reversal.

The only authority cited by appellant is Erisman's Manual of Reversible Errors, Section 586. In none of the cases there cited, involving the death of a court reporter, did a statement of facts reach the appellate court, and the appellant was unable to procure a statement of facts without any fault, negligence or lack of due diligence on his part. See Seliger v. State, 139 Tex.Cr.R. 26, 138 S.W.2d 817; McNabb v. State, 137 Tex.Cr.R. 463, 132 S.W.2d 273; Brannan v. State, 137 Tex.Cr.R. 611, 132 S.W.2d 594; Little v. State, 131 Tex.Cr.R. 164, 97 S.W.2d 479.

In this connection, although not cited, see also Hartgraves v. State, Tex.Cr.App., 374 S.W.2d 888; Seamster v. State, 162 Tex.Cr.R. 172, 283 S.W.2d 243.

The case at bar is clearly distinguishable from these authorities.

In Thomas v. State, 144 Tex.Cr.R. 533, 164 S.W.2d 852, the statement of facts was forwarded to this Court and reflected that it had been approved by the trial judge and the district attorney.

In approving the statements of facts, the trial judge entered the following notation:

'The above and foregoing statement of facts having been presented to me by the District Attorney after having been signed and approved by him, and it appearing to the Court that the Defendant's counsel and the District Attorney are unable to agree upon a statement of facts herein, (The Official Court Reporter having died since the trial of this case), the above statement of facts has been examined by the trial court, and found to contain a complete, fair and accurate statement of the evidence in this case, the same is hereby approved by the Court as a statement of facts herein and ordered filed this 13th day of June, 1942.'

There this Court rejected appellant's contention that he had been deprived of a full and complete statement of facts in his case. See also Rodriguez v. State, 164 Tex.Cr.R. 377, 298 S.W.2d 835.

In Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570, this Court denied appellant's motion to strike the statement of facts on his claim that the same had not been presented to him for his approval. There it was said:

'We observe that it was incumbent upon the appellant to secure the filing and approval of a statement of facts. He has made no showing in this Court that the statement of facts on file herein is incorrect in any material respect or that he had agreed with the prosecuting attorney to a statement of facts contrary thereto.'

In United States v. Di Canio, 245 F.2d 713 (2d Cir. 1957), the court reporter died five months after the trial of the case, and the transcript was prepared by another court reporter from the notes of the man who had died. However, in Di Canio, unlike the case at bar, there were slight omissions in 32 of the 204 page record marked by asterisks, where the reporter found that the notes of his deceased colleague were not sufficiently legible.

There the United States Court of Appeals stated:

'Appellant does not seek relief by way of a hearing to ascertain by inquiry of the trial judge and the lawyers what was said at the few places where the asterisks appear; indeed, appellant asserts no claim whatever as to what was said but not transcribed. What he does seek is a reversal of the judgment of conviction and a new trial, on the ground of the inadequacy of the record before us.'

In affirming the Di Canio case, the court further said:

'There is no rule of thumb to govern the action of this court on an appeal from a criminal conviction in those instances where the court stenographer who reported the trial has died and another reporter has prepared the transcript from stenographic notes. The absence of a completely accurate transcript does not, without more, invalidate a conviction. A new trial will be ordered only if necessary to the protection of a party's rights. Hence, the defects of the record must be of a prejudicial character, not merely inconsequential inaccuracies or omissions. Nor do we say any distinction is necessarily to be drawn between civil and criminal appeals. Each case must stand on its own bottom; and the outcome will depend upon the circumstances of the particular case. See Annotation, 19 A.L.R.2d 1098.' See also 3 A.L.R.2d 88.

In holding that Illinois did not deny the defendant due process or equal protection of law under the circumstances presented, the ...