Wynne v. State
| Decision Date | 27 May 1992 |
| Docket Number | No. 07-89-0221-CR,07-89-0221-CR |
| Citation | 831 S.W.2d 513 |
| Parties | Lafayette Russell WYNNE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Shelton & Jones, Travis D. Shelton and Dale Jones, Lubbock, for appellant.
Danny E. Hill, Dist. Atty., Danny E. Hill, Wesley G. Clayton, and Bruce Sadler, Amarillo, for appellee.
Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
Found guilty of the offense of murder and punished by confinement for 55 years, appellant Lafayette Russell Wynne seeks a reversal and remand by both a motion and five points of error. The motion is based on the failure to provide a complete statement of facts, and the points are appellant's contentions that the trial court erred in denying his motion to change venue, in allowing his cross-examination on certain matters, and in its factual findings and legal conclusions concerning the unavailability of the statement of facts of the venue hearing. On the rationale expressed, we will overrule appellant's motion and points, and affirm.
This appeal is from the second conviction of appellant for the murder of Erle Winston Mathis, who died when appellant shot him. Appellant's first conviction in Potter County in early 1983, for which he was assessed punishment at confinement for 50 years and a fine of $10,000, was reversed and the cause was remanded for a new trial. Wynne v. State, 676 S.W.2d 650 (Tex.App.--Fort Worth 1984, pet'n ref'd). The opinion in that appeal adequately sets forth the circumstances surrounding the homicide, and they will not be repeated here, except as may be necessary in resolving the appellate contentions.
Upon remand, appellant, represented by retained counsel, moved for a change of venue which, following a two-day hearing on July 29-30, 1985, was overruled. Trial commenced in Potter County on September 5, 1985 and resulted in a verdict of guilty returned by the jury on September 12. Court was recessed until the morning of September 13 for the punishment phase of the trial. Appellant, who was at liberty on bail, did not appear when court reconvened.
After a hearing, the court determined that appellant's absence was willful and voluntary, and proceeded with the punishment phase of the trial. Hearing relevant evidence, the jury assessed appellant's punishment at 55 years confinement.
The venue hearing and the trial proceedings were reported by Paul Bascus, the official court reporter for the court. Bascus left the court reporter's office on December 31, 1986.
On March 22, 1989, appellant was apprehended in California and returned to Potter County. Seven days later on March 29, Judge David L. Gleason, who succeeded the trial judge on January 1, 1987, pronounced judgment and sentence. Appellant filed a motion for a new trial, which was denied.
Appellant perfected his appeal, and requested the statement of facts from Bascus. After we granted several extensions of time for Bascus to file the statement of facts, and implemented procedures to compel the filing, he delivered a statement of facts that was incomplete because it did not include a transcription of the venue hearing, together with an affidavit, which stated:
I, Paul Bascus, was the Official Court Reporter for the 47th District Court at the time a Change of Venue hearing was had in Cause No. 21,507-A, styled "State of Texas vs. LaFayette Russell Wynne" in June, 1985, and I took stenographic notes of the proceedings.
Said notes were kept in my possession for more than three years. I received notification in April, 1989 from Mr. Wynne's attorney of record that a transcription of said notes were needed. At that time, I was unable to locate the notes and have been unable to up to the present time.
It is my belief the notes were lost or misplaced between October 4, 1988, when I moved from McLoud, Oklahoma to Amarillo, Texas and March 20, 1989, when I moved back to McLoud.
Appellant applied to this Court for an evidentiary hearing in the trial court to develop a supplemental record. Tex.R.App.P. 55(b). The State did not file a response. We granted appellant's motion, abated his appeal, and ordered the trial court: to conduct a hearing to determine the accuracy of the court reporter's certification of the lost or misplaced venue notes and the availability of exhibits; to make findings of fact and conclusions of law, allowing counsel to request different or additional factual findings; to cause a transcription of the hearing; and to cause a supplemental transcript containing the proceedings to be filed in this Court.
Pursuant to our order, the trial court conducted an evidentiary hearing on August 2, 1990. By its September 5 order, the trial court made findings of fact and conclusions of law as follows:
FINDINGS OF FACT
(1) Following reversal of the first trial, this case was remanded to this Court for retrial.
(2) The Defendant was released on bail.
(3) On July 29, 1985, and July 30, 1985, a hearing was conducted before [the trial judge] on the Defendant's Motion for Change of Venue.
(4) At the venue hearing the defense presented twenty-three witnesses and, according to Honorable John Mann, co-counsel for defense, most if not all of the witnesses testified as to opinion only.
(5) On July 30, 1985, [the trial judge] denied said motion and set the case for trial September 5, 1985.
(6) On September 5, 1985, jury was selected, empaneled and sworn and Jury trial began before [the trial judge], which continued for several days.
(7) On September 12, 1985, following the jury's verdict of Guilty of Murder and an affirmative finding on the use of a deadly weapon, Court was recessed until the morning of September 13, 1985, for punishment phase of the trial.
(8) The Defendant failed to appear on September 13, 1985, for the punishment phase.
(9) After hearing, [the trial judge] determined that the Defendant's absence was wilful and voluntary and the punishment phase of the trial was conducted in Defendant's absence on September 13, 1985, resulting in punishment being assessed at fifty five (55) years confinement in the Texas Department of Corrections.
(10) The Defendant remained a fugitive from September 13, 1985, to March 22, 1989, a period of over three and one half (3 1/2) years.
(11) On March 22, 1989, the Defendant was arrested by F.B.I. Agent Gayle Jacobs and other agents in Spring Valley, California.
(12) On March 29, 1989, the Defendant appeared in this Court with his counsel and was formally sentenced in this cause.
(13) On June 9, 1989, the Defendant's Motion for New Trial was denied.
(14) Both the hearing on change of venue conducted on July 29 and July 30, 1985, and the jury trial which began September 13, 1985, and concluded September 13, 1985, were recorded by Paul Bascus, who was the Official Court Reporter of this Court at that time.
(15) In the fall of 1986, this Court moved its physical location from the Potter County Courthouse to the new Potter County Courts Building.
(16) Mr. Bascus moved all his current stenographic notes on Potter County matters, including the Wynne notes, to the new quarters.
(17) Both [the trial judge] and Paul Bascus left office December 31, 1986.
(18) Mr. Bascus took some of his stenographic notes with him when he left office and left some notes in the Court Reporter's Office.
(19) Debby Bradford, Official Court Reporter for this Court beginning January 1, 1987, stored the remainder of Mr. Bascus' notes in the evidence room until Mr. Bascus personally took possession of them later in 1987.
* * * * * *
(21) Mr. Bascus retained possession of all his stenographic notes, contained in several boxes, throughout several moves.
(22) The only time the boxes of notes were not all in one location was during Mr. Bascus' move back to Amarillo from Oklahoma, in October, 1988, when, on several different occasions, he brought some boxes with him to Amarillo, and left the others stored in both his father's garage in Anadarko, Oklahoma and in a storage building on his mother's property in McLoud, Oklahoma.
* * * * * *
(24) Mr. Bascus was first requested to prepare a complete statement of facts by a letter from Honorable Travis Shelton dated June 22, 1989. This was more than three years and nine months from the conclusion of the trial.
* * * * * *
(27) Notwithstanding the contents of affidavits filed by Mr. Bascus with regard to requests for extensions of time, the proof is evident that Mr. Bascus, having located his notes of the trial and having begun transcription thereof, thought that his notes to the change of venue hearing would surely be found.
(28) Not wanting to overlook any possible location for the missing notes, Mr. Bascus' search included sending persons back to the Potter County Courthouse to double check, and his search continued through May 8, 1990.
(29) All of the exhibits from the change of venue hearing and from the trial are currently filed with the District Clerk of Potter County. None are missing. There is no such exhibit as State's Exhibit No. 203.
(30) The only unavailable part of the record is the transcription of Mr. Bascus' stenographic notes concerning the change of venue hearing, which would cover the examination and cross-examination of witnesses as to opinion only. All exhibits from that hearing are in the District Clerk's possession.
(1) Texas Government Code, Section 52.046(a)(4) requires the court reporter to preserve his notes for three years from the date on which they are taken.
(2) Mr. Bascus, having kept his notes from the venue hearing until at least October 4, 1988, a period of three years and two months, complied with the Government Code requirement.
(3) Defendant must exercise diligence in requesting a statement of facts.
(4) Rule 50(e) of the Rules of Appellate Procedure does not require reversal because of the loss of a portion of...
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