Zamora v. State

• Decision Date: 26 June 1957
• Docket Number: No. 29114,29114
• Parties: Rudy Benito ZAMORA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 447

309 S.W.2d 447

165 Tex.Crim. 613

Rudy Benito ZAMORA, Appellant, v. The STATE of Texas, Appellee.

No. 29114.

Court of Criminal Appeals of Texas.

June 26, 1957.

Rehearing Denied Oct. 16, 1957.

Second Motion for Rehearing Denied Jan. 29, 1958.

Joe Burkett, Sam L. Harrison, San Antonio, for appellant.

Hubert W. Green, Jr., Cr. Dist. Atty., Roy R. Barrera and Edward R. Finck, Jr., Asst. Cr. Dist. Attys., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for possession of marihuana; the punishment, 40 years in the penitentiary.

No statement of facts on the merits accompanies the record.

There are no formal bills of exception.

Appellant contends that he has been deprived of a statement of facts without fault on his part.

Sentence was pronounced upon the appellant February 15, 1957.

Notice of appeal was properly given February 15, 1957.

A pauper's affidavit appears in the transcript and it in part reads as follows 'Comes now Rudy Benito Zamora, defendant in the above entitled and numbered cause, who after being by me duly sworn, deposes and says: My name is Rudy Benito Zamora; I am the defendant in the above entitled and numbered cause; I am desirous of appealing to the Court of Criminal Appeals, my conviction in the trial court and am without finances with which to pay the court costs and the reporters fees. I have no finances, no property nor assets in anything and have been unable to raise the necessary funds with which to prefect my appeal, by making any sort of a loan., and now requests this Court to order a statement of facts prepared, approve same and have same transmitted to the Court of Criminal Appeals.'

Said pauper's affidavit was duly presented to the trial judge in open court on May 7, 1957.

Appellant's request of the trial court in the pauper's affidavit to order a statement of facts prepared was refused by a written order signed by the trial judge and entered of record on May 9, 1957, to which action and ruling of the court the appellant excepted.

Art. 759a, Sec. 5, Vernon's Ann.C.C.P., provides:

'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. For each said service he shall be paid by the State of Texas, upon certificate of the trial judge, one-half (1/2) of the rate provided by law in civil cases.'

This statute when complied with imposes a mandatory duty upon the trial court to make and enter an order requiring the court reporter to prepare the transcript of the evidence. The statute does not place it within the discretion of the trial judge to determine whether the affidavit is true or false or whether there is remaining time within the ninety days from the date of giving notice of appeal within which to prepare the transcript of the evidence.

In Wallace v. State, 138 Tex.Cr.R. 625, 138 S.W.2d 116, 117, under similar facts, we said:

'We are of the opinion that the order here requested did not involve the exercise of judicial discretion but was a ministerial act. Therefore when appellant notified Judge Gist that the affidavit had been filed and requested him to make an order directing the court reporter (who was then under his control and direction) to prepare a statement of facts, Judge Gist should have complied with the request. This court has held an appellant's right to a statement of facts, upon proper presentation of a pauper's affidavit, to be absolute, and that no discretion was invested in the trial court to refuse the same. See Art. 760, sec. 6, C.C.P.; Ex parte Fread, 83 Tex.Cr.R. 465, 204 S.W. 113; Ballinger v. State, 110 Tex.Cr.R. 148, 8 S.W.2d 159; Rice v. Roberts, Tex.Civ.App., 177 S.W. 149; Rice v. State, 135 Tex.Cr.R. 626, 122 S.W.2d 194; Williams v. State, 132 Tex.Cr.R. 60, 102 S.W.2d 228 where the authorities are collated.' See also Harwell v. State, 147 Tex.Cr.R. 505, 182 S.W.2d 713.

We are aware of no law granting authority to the trial judge to hear evidence on the question of whether or not he should order the court reporter to prepare a statement of facts in a criminal case. We must therefore decline to consider the testimony adduced upon said hearing as to the length of time that would be required to prepare such statement of facts.

The trial judge having refused to direct the court reporter to prepare a statement of facts has deprived appellant of a statement of facts and this court of the opportunity to pass upon whether the delay in filing the affidavit was excusable had the statement of facts been completed and filed after the expiration of ninety days after the notice of appeal.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

MORRISON, Presiding Judge (dissenting).

I regret that I must dissent in a case of this nature. I am fully committed to the proposition that every accused regardless of his financial condition should be accorded a full review of his conviction by this Court. I am also committed to the proposition that an attorney should not secure the reversal of a conviction against his client by the very act of failing to properly look after his client's interests.

None of the cases cited in the majority opinion are analogous to the case before us here, nor do they support the statement in the majority opinion that 'the statute does not place it within the discretion of the trial judge to determine * * * whether there is remaining time within the ninety days from the date of giving notice of appeal within which to prepare the transcript of the evidence.' Let us see what happened in this case.

Appellant was represented by two attorneys of his own choosing and on December 15, 1956, was convicted in the trial court. On December 21, motion for new trial was filed, and the amendment of such motion was overruled on February 15, 1957, and notice of appeal was given. Shortly thereafter, the Court Reporter informed appellant's attorney Harrison that the record in such case would require thirty days, day and night work, on his part to prepare. Thereafter, the reporter saw attorney Harrison often about the...