No. 05-01-00078-CR
Opinion filed August 1, 2003. Do Not Publish Tex.R.App.P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F94-79501-P Affirmed
Before Justices MORRIS, O'NEILL, and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice Maloney.
The jury convicted Baker Steven Lucas III of murder. The trial court sentenced him to thirty-five years and assessed a $10,000 fine. In twenty-six points of error, appellant generally complains (1) he is entitled to a new trial because he has been deprived of a complete reporter's record, (2) legally and factually evidence exists to support his conviction, (3) the trial court erred in admitting certain testimony, and (4) the trial court erred in denying appellant's motion for mistrial. For the reasons that follow, we affirm the trial court's judgment.
JURISDICTION
Before addressing the merits of this appeal, we discuss the State's assertion that we should dismiss this appeal for want of jurisdiction because appellant filed his notice of appeal in the wrong trial court. It is therefore necessary to put forth in some detail the complex procedural history of this case. This matter originated in the Seventh Judicial District Court of Smith County under trial cause number 7-88-870. A jury trial commenced on April 10, 1991, but the trial judge, Louis B. Gohmert, Jr., declared a mistrial after the jury failed to resolve the issue of guilt. On appellant's motion for a change of venue, the case was transferred to Dallas County by order dated August 29, 1994. The case was docketed in the 203rd Judicial District Court under trial court number F94-79501-P. Judge Gohmert presided over the jury trial in Dallas County, and the jury found appellant guilty. On November 29, 1994, after pronouncing sentence, Judge Gohmert signed an order transferring the case back to the Seventh Judicial District Court of Smith County. Appellant filed a pro se motion for new trial on December 14, 1994 with the Smith County district court under the original cause number 7-88-870 which Judge Gohmert denied on December 16, 1994. Appellant then filed a pro se notice of appeal on February 16, 1995 with the Smith County district court. The notice of appeal stated that appellant sought to appeal "[h]is conviction for the felony offense of murder which conviction was rendered on November 22, 1994 in a jury trial before this court." For reasons unknown to this Court, the appeal was not docketed in the Twelfth District Court of Appeals until 2000. Thereafter, appellant moved, in the Twelfth Court of Appeals and in the Supreme Court of Texas, to return the case to Dallas County. On December 27, 2000, the Texas Supreme Court entered an order transferring the appeal to this Court. The State asserts that appellant's notice of appeal filed in Smith County did not properly invoke our jurisdiction to consider this appeal. We disagree. Both the current and former rules of appellate procedure required appellant to file his notice of appeal with the clerk of the trial court. See Tex.R.App.P. 25.2(c)(1) (former rule 40(b)(1)). At the time appellant moved for new trial and filed his notice of appeal, the trial court had transferred this case back to the Seventh Judicial District Court in Smith County. Thus, appellant properly filed his notice of appeal. That the Supreme Court later determined that the proper place for appeal lay in Dallas County does not alter our determination. The State also argues that even if the notice of appeal was properly filed in Smith County, the case should still be dismissed for want of jurisdiction because appellant has never amended his notice of appeal to reflect he is appealing his conviction under Dallas County cause number F-94-79501-P. However, appellant's notice of appeal specifically referenced his conviction which occurred under cause number F94-79501-P when he mentioned the November 22, 1994 jury verdict resulting in his murder conviction. According to the Texas Rules of Appellate Procedure notice is sufficient if it shows the desire of the defendant to appeal from the judgment. Tex.R.App.P. 25.2(c)(2) (former rule 40(b)(1)). We therefore conclude we have jurisdiction to hear this appeal. LOST REPORTER'S RECORD
During the pendency of this appeal, we became aware that the official reporter's record filed with this Court was missing certain trial proceedings from September 20-23, 1994. Rule 34.6(f) of the Texas Rules of Appellate Procedure entitles an appellant to a new trial if (1) he has timely requested the reporter's record, (2) a significant portion of the court reporter's notes has been lost or destroyed through no fault of appellant, (3) the lost or destroyed portion is necessary to the appeal's resolution, and (4) the parties cannot agree on a complete reporter's record. Tex.R.App.P. 34.6(f). On September 11, 2002, this Court entered an order abating this appeal and directing the trial court to make certain findings with respect to the missing record. On October 16, 2002, we specifically adopted the trial court's October 11, 2002 findings that (1) appellant did not timely request the reporter's record, (2) the excerpted portions of testimony contained in the reporter's record of September 23, 1994 accurately reflects that portion of the proceedings reported on the day in question, (3) except for the September 23 excerpted portions of testimony, the notes of the proceedings conducted on September 20 through 23, 1994 have been lost or destroyed; and (4) the loss of the destruction of the notes occurred because appellant delayed requesting preparation of the record for six-years. THE TRIAL COURT'S FINDINGS
In points of error one through eighteen, appellant complains (1) he is entitled to a new trial because he has been deprived of a complete reporter's record, (2) our adoption of the trial court findings was error, (3) the trial court's findings that (a) he did not timely request the reporter's record and (b) he was at fault for the loss or destruction of the portion of the court reporter's notes are not supported by the evidence, and (4) this Court erred in "finding" the parties could not agree on a substitute record. 1. Adopting the Trial Court's Findings
Specifically, appellant complains in his fifth, sixth, seventh, eighth, twelfth, thirteenth, fourteenth, and fifteenth points of error that (1) neither a full panel or the entire court entered the complained-of order and (2) this Court (a) gave appellant no notice or opportunity to be heard, (b) engaged in unauthorized fact finding, and (c) abused its discretion and violated due process in issuing our October 16, 2002 order. a. Did a Single Justice Have the Authority to Sign the Complained-of Order?
Appellant relies rules 41.1 and 47.2 of the Texas Rules of Appellate Procedure as authority that a single justice should not have issued our October 16, 2002 order. Appellant missplaces his reliance. Rule 41.1 addresses the number of justices required to decide a case, not issue an order during the pendency of an appeal. See Tex.R.App.P. 41.1. Rule 47.2 address the designation and signing of opinions and dispositive orders and does not speak to the number of justices required to issue an order during a pending appeal. See Tex.R.App.P. 47.2. Rule 10.4, however, expressly authorizes a single judge to entertain motions and grant or deny relief except in petitions for extraordinary writs, motions for rehearing, and orders disposing of an appeal. See Tex.R.App.P. 10.4. Additionally, appellant misplaces his reliance on rule 39.9, which addresses the notice required before we submit a case to the court for final disposition, and rule 38.1, which governs appellate briefing requirements. Neither rule controls when we request the trial court conduct a hearing to determine facts and conclusion on missing records. b. Did the Court Violate Appellant's Due Process in Issuing the Complained-of Order?
In support of his due process argument, appellant relies on Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306 (1950) and Peralta v. Heights Medical Center, Inc., 485 U.S. 82 (1988). Again, appellant misplaces his reliance. Mullane involved the sufficiency of the publication notice to trust beneficiaries of a final judicial settlement of a common trust. Mullane, 339 U.S. at 307 . Peralta concerned a default judgment entered when the defendant had not been properly served with the underlying lawsuit. Peralta, 485 U.S. at 82-83. Neither of these cases support appellant's position that any sort of notice was required before we adopted the trial court findings from a hearing at which appellant participated. We also reject appellant's second argument that due process required that he be given notice and/or an opportunity to be heard before we entered the October 16, 2002 order. Our issuing the initial order requesting the trial court to make findings of fact regarding the missing record placed appellant on notice of our intent. Additionally, appellant and his counsel participated and presented evidence in the trial court hearing held under October 16, 2002 order. c. Did this Court Engage in Unauthorized Factfinding?
In his third and fourth points of error, appellant provides no argument and cites no authority to support his assertions that our October 16, 2002 order is unauthorized factfinding, is an abuse of discretion, or violates due process because we issued the order before reviewing the evidence presented at the trial court's hearing with respect to the missing portions of the record. Consequently, appellant waives his right to have this Court review these contentions. See Tex.R.App.P. 38.1(h). We therefore overrule appellant's fifth, sixth, seventh, eighth, twelfth, thirteenth, fourteenth, and fifteenth points of error. To the extent appellant complains the evidence does not support the trial court findings and, thus, our adoption of the trial court's findings is error, we note that appellant has challenged the sufficiency of the evidence supporting the trial court findings in separate points of error which we next address. DOES THE EVIDENCE SUPPORT THE TRIAL COURT'S FINDINGS? 1. Standard of Review
In appellant's second, third, fourth, ninth, tenth, and eleventh points of error, he specifically challenges the sufficiency of the evidence to support the trial court's findings that (1) appellant did not timely request the reporter's record and (2) appellant was at fault for the loss or destruction of the missing portion of the reporter's notes. He argues that because the underlying facts are undisputed, we must review de novo these findings under the standard of review applicable to a trial court's ruling on suppression motions. See Guzman v. State, 955 S.W.2d 85 (Tex. 1997). We have found no cases and appellant refers us to none specifically detailing the appropriate standard of review to apply. Nor does the State direct us to the appropriate standard of review. Thus, we will assume for the purposes of this appeal that Guzman applies. Accordingly, we will review the trial court's findings for an abuse of discretion, giving almost total deference to the trial court's determination of historical facts that the record supports. See Guzman, 955 S.W.2d at 89. However, we will review de novo the court's application of the law to those facts and any mixed question of law and fact that do not turn on evaluation of credibility and demeanor. Id. Appellant contends evidence that he filed with the Seventh Judicial District Court Clerk a pro se request for a free statement of facts on February 16, 1995 conclusively establishes he timely requested the reporter's record. He further claims that it is undisputed that the official court reporter had actual knowledge of his record request because she recorded the evidence at the February 24, 1995 indigency hearing held pursuant to his February 16 request. We disagree that the record establishes appellant made a timely request. 2. Applicable Law
The appellate rules proscribe the proper method for requesting a reporter's record. An appellant, at or before the time for perfecting an appeal, must request in writing that the official reporter prepare the reporter's record and designate the exhibits and the portions of the proceedings to be included. Tex.R.App.P. 34.6(b)(1) (formerly rule 53(a)). All appellants must pay for the record unless they prove to the trial court their inability to pay. Nelson v. State, 6 S.W.3d 722, 724 (Tex.App.-Waco 1999, no pet.). The Texas Government Code allows reporters to purge notes after three years from the date they were taken if no party has requested otherwise. See Alvear v. State 25 S.W.3d 241, 245 (Tex.App.-San Antonio 2000, no pet.). After the court reporter has properly destroyed her notes, a request for record is untimely. See Corley v. State, 782 S.W.2d 859, 861 (Tex.Crim.App. 1989). 3. Application of Law to Facts
Appellant's request for a free reporter's record addressed to the district court clerk does not satisfy the requirements of rule 34.6. At the conclusion of the 1995 indigency hearing, the trial court found that appellant had available assets and was not indigent. Appellant then made a statement on the record that "I would not ask my family to sell their home to pursue my defense." Appellant made no attempt to procure the record or arrange for the payment of the reporter's record until the summer of 2001. On August 17, 2001, his attorney forwarded a designation letter to the court reporter. In its October 11, 2002 findings, the trial court again found that after his request for a free record was denied, appellant took no affirmative steps to ensure the notes from his 1994 trial were preserved, and affirmatively stated on the record in 1995 that he refused to use his assets to pay for the appeal. Because the record established that appellant's written designation of reporter's record was sent to the court reporter six years after the deadline for requesting same and three years after the code permitted the court reporter to purge her notes from that proceeding, we conclude that his request for the reporter's record was untimely. Accordingly the trial court did not err in finding that appellant failed to timely request the reporter's record. Because appellant has failed to establish the first requirement for a new trial under 34.6(f), we need not address his points of error with respect to the trial court's finding that he was at fault for the destruction or loss of the missing record. We overrule appellant's second, third, fourth, ninth, tenth, and eleventh points of error. SHOULD THIS COURT HAVE ACCEPTED COURT TV'S TAPES AS A SUBSTITUTE RECORD?
In his sixteenth, seventeenth, and eighteenth points of error, appellant argues that this Court should have permitted transcription of certain Court TV tapes as a substitute record and should not have "found" that the parties could not agree on a substitute record. Appellant contends that even if he is not entitled to a new trial as a result of the missing portions of record, he is still entitled to utilize the Court TV tapes to obtain a substitute record. Appellant cites no authority and provides no argument to support his contention that this Court should have ordered the Court TV tapes transcribed as a substitute record. Appellant never requested that this Court accept the transcription of the tapes as a substitute record. Nothing in the appellate rules mandates this Court to sua sponte procure a potential substitute record after the original has been lost or destroyed, particularly when nothing indicates that the parties would be able to agree on the potential substituted record. Neither the record below nor the appellate argument assures us that the Court TV tapes covered all of the proceedings from the missing portions of the reporter's record because neither party has ever viewed the tapes. SHOULD THIS COURT HAVE ISSUED AN ORDER CONCLUDING THE PARTIES COULD NOT AGREE ON A SUBSTITUTE RECORD?
Our November 8, 2002 order issued because this Court received letters from appellant's counsel and the assistant criminal district attorney in response to our October 16, 2002 order. In the letters, it was undisputed that although the State paid for approximately 30 hours of "raw" Court TV tapes, neither party had begun to review the tapes and could not currently verify that the tapes accurately reflected what occurred on the days missing from the reporter's record. Additionally, the letters indicated the prosecutor and the defense attorney who actually tried the case in 1994 did not currently have time to view the tapes. On these letters, it was apparent there had been no progress made in verifying the tapes, that the tapes could not be verified in the near future, and that they would not probably would not be verified absent additional court orders requiring attorneys no longer involved in this case to review the tapes. Additionally the letters we received revealed no factual dispute necessitating a trial court hearing. Yet, appellant made no attempt to determine whether the tapes even purported to contain the missing portion of the proceedings. In light of the parties' complete inaction and comments in oral argument, we concluded the parties were unable to agree on a substitute record. Appellant has cited no authority that required the trial court determine whether the parties could agree on a substitute record. Moreover, appellant does not argue that determining the whether the parties could agree on a substitute record was necessary before we proceeded with this appeal. At the time the November 8, 2002 order issued, this appeal had been pending in this Court for almost two years. The reporter's record was filed in March of 2002. Appellant was aware of the missing portions of the record at least by July 1, 2002 when he filed a motion in the Court for a complete reporter's record. In its October 11, 2002 findings of fact, the trial court indicated that it had possession of the raw Court TV tapes, yet appellant made no attempt to determine whether these tapes could be used to formulate a substitute record on which the parties could agree. We therefore overrule appellants points of error sixteen, seventeen, and eighteen. Because appellant did not timely request and arrange payment for the reporter's record and took no action to procure a substitute record, we conclude that we will proceed with this appeal on the record before us. Having overruled all specific points of error addressing issues related to the lost record, we necessarily overrule appellant's first point of error in which he generally contends he was entitled to a new trial because he was deprived of a complete appellate record. SUFFICIENCY OF THE EVIDENCE
In his nineteenth and twentieth points of error, appellant asserts there is no evidence or insufficient evidence to support his murder conviction. Notwithstanding appellant's discussion of the appropriate standard of review, appellant's argument under this section consists of approximately two and one-half pages, does not contain a single citation to the record, and virtually no discussion of the facts as they relate to appellant's contentions under these points of error. It is appellant's burden to direct this court to the evidence that supports his contention of reversible error. See Tex.R.App.P. 38.1(h). It is not our role to independently review the seventy-seven volumes of the reporter's record to determine whether there is any merit to appellant's legal and factual sufficiency challenges. Accordingly, appellant waives our review of these points of error. Even absent the deficiencies in appellant's brief, however, we would still be unable to review these points of error on the merits because the record before us is missing approximately three and one-half days of the prosecution's case in chief. See Tex.R.App.P. 34.6(c)(5) (suggesting a sufficiency point requires review of all evidence admitted at the guilt innocence portion of the trial). Appellant has the burden to properly initiate the completion of a record sufficient to illustrate reversible error. Kent v. State, 982 S.W.2d 639, 641 (Tex.App.-Amarillo 1998, pet. ref'd.). In fact, we presume any omission in the record appellant presents supports the trial court's judgment. See State v. Pierce, 816 S.W.2d 824, 831 (Tex.App.-Austin 1991, no pet.). We have already determined that appellant's failure to properly request and arrange to pay for the reporter's record in a timely fashion after the trial court determined he was not indigent in 1995 caused the missing portion of the record. Because resolution of these points of error requires review of matters omitted from the record because of appellant's failure to request and pay for same in a timely fashion, we are prevented from reaching the merits of these issues. See Cheek v. State, 65 S.W.3d 728, 730 (Tex.App.-Waco 2001, no pet.). We overrule points of error nineteen and twenty. ADMISSION OF EVIDENCE
In his twenty-first through twenty-fifth issues, appellant complains of the trial court's admitting certain evidence. We review a trial judge's decision to admit evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). We cannot assess the propriety of a trial court's ruling on the admissibility of evidence without a complete reporter's record or other showing the claimed errors were not waived or cured. See Stockman v. State, 303 S.W.2d 410, 411 (Tex.Cr.App. 1957). MOTION FOR MISTRIAL
In his twenty-sixth point of error, appellant asserts the trial court erred in denying his motion for mistrial after the State produced demonstrative evidence contrary to a previous court order. Appellant complains that he cannot adequately brief this point of error because he has not been provided with a copy of the excerpted testimony from September 23, 2002. This excerpt was filed with this Court on October 24, 2002 at which time we sent a letter to appellant's attorney informing him that a supplemental reporter's record was filed. Appellant now requests that "this court should order a copy of the testimony from September 23, 1984 [sic], be made available to Appellant's counsel for review in completing this point of error." Appellant filed his brief on January 3, 2003, over two months after the excerpted testimony was filed with this Court. Accordingly, this Court made the excerpted testimony available to appellant in October 2002. We therefore reject appellant's request for a copy of this excerpt. In the absence of any argument or authority to support this complaint, appellant has not established any error in connection with the trial court's denial of his motion for mistrial. We therefore overrule appellant's twenty-sixth point of error. We affirm the trial court's judgment. FRANCES MALONEY JUSTICE, ASSIGNED