Opinion
Nos. 05-05-01050-CR, 05-05-01051-CR, 05-05-01052-CR, 05-05-01053-CR, 05-05-01054-CR, 05-05-01055-CR, 05-05-01056-CR
Opinion Filed July 31, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F95-76608-Jhl, F95-76584-Uhvhl, F05-32436-Vhl, F95-32479-Ivhl, F95-76655-Jhl, F95-76654-Jhl, F95-32421-Uvhl. Reverse and Remand.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION
Tyrone Lamond Banks appeals four convictions for aggravated assault and three convictions for aggravated robbery. In June 1997, appellant pleaded guilty in each case without an agreement as to punishment. After a hearing, the trial court assessed punishment at fifteen years' confinement and a $500 fine in each aggravated assault case, and sixty years' confinement and a $1000 fine in each aggravated robbery case. Thereafter, appellant filed post-conviction writs of habeas corpus with the court of criminal appeals. Appellant alleged that he was denied his right to appeal because even though appellant informed trial counsel he desired to appeal these cases, trial counsel failed to timely file notices of appeal. On April 27, 2005, the court of criminal appeals granted out-of-time appeals from all seven judgments. See Ex Parte Banks, No. AP-75, (Tex.Crim.App. 2005) (per curiam) (not designated for publication). Appellant timely filed his notices of appeal in each case. On September 23, 2005, this Court ordered the trial court to make findings regarding the reporter's record in these appeals. Following a hearing, the trial court determined that the court reporter who recorded the proceedings died in 2004, a search was made but the notes could not be located, appellant was not at fault for the loss or destruction of the notes, and the parties could not agree on a substitute record. This Court later adopted the trial court's findings. In a single issue, appellant contends that pursuant to rule of appellate procedure 34.6(f), he is entitled to a new trial. Rule 34.6(f) 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). With respect to the requirement that the missing portion be necessary to the appeal's resolution, appellate courts can only evaluate the necessity of the missing portion of the record in the context of a specific appellate complaint. Issac v. State, 989 S.W.2d 754, 757 (Tex.Crim.App. 1999). Rule 34.6(f)(3) requires a harm analysis; reversal is not automatic. Issac, 989 S.W.2d at 757. There is no dispute that the court reporter's notes have been lost or destroyed through no fault of appellant and that the parties cannot agree on a complete reporter's record. However, the State contends that appellant is not entitled to a new trial because the reporter's record is not necessary for the resolution of these appeals and because appellant did not take affirmative steps to ensure the record was preserved. We address each of these arguments in turn. We first address the State's argument that because appellant did not request the record until after the time the court reporter was permitted to destroy the notes, appellant should not be permitted to benefit from rule 34.6(f). In support of this argument, the State relies on the government code which provides that the court reporter must "preserve the notes for future reference for three years from the date on which they were taken." See Tex. Gov't Code Ann. § 52.046(a)(4) (Vernon 2005); Alvear v. State, 25 S.W.3d 241, 245 (Tex.App.-San Antonio 2000, no pet.) (finding that because appellant failed to take action to preserve records, request for reporter's record in out-of-time appeal was untimely). We cannot agree. When the court of criminal appeals granted appellant out-of-time appeals, it instructed appellant that for purposes of the Texas Rules of Appellate Procedure, all time limits would be calculated as if the sentences had been imposed on April 25, 2005. The rules of appellate procedure provide that to be timely, a request for the reporter's record must be made at or before the time for perfecting the appeal. See Tex.R.App.P. 34.6(b)(1). Here, the time for perfecting the appeals was on or before May 25, 2005. By that time, the court reporter had died, and her notes could not be located. Under these circumstances, and if the remaining conditions of rule 34.6(f) are met, appellant would be entitled to a new trial. See White v. State, 916 S.W.2d 78, 81-82 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (filing of request for statement of facts in out-of-time appeal would have been useless where court reporter was deceased and notes could not be located at time for perfecting appeal); Duran v. State, 868 S.W.2d 879, 882 (Tex.App.-El Paso 1993, pet. ref'd) (it would be of no benefit to appellant to return him to point in time in which he could give notice of appeal and then allow absent statement of facts to bring that to a halt). We acknowledge the tension between the government code and the rules of appellate procedure, but conclude whether the request is timely for purposes of rule 34.6 must be determined from language of the rule itself and not from the provisions of the government code generally setting out the duties of court reporters. The State also maintains that it is possible to properly analyze appellant's convictions by examining the clerk's records alone, and thus the reporter's record is not necessary in these cases. According to the State, because appellant was admonished in writing, acknowledged that he understood the consequences of his plea, and judicially confessed to each of the charges, we must conclude the 1997 plea hearing was conducted lawfully, the evidence is sufficient to support his guilty plea, and the missing record is unnecessary for resolution of these appeals. After reviewing the records, we cannot agree. Appellant argues with little briefing that "no analysis of the merits of appellant's plea hearing is possible without the reporter's record." The absence of specificity is of serious concern to the Court. However, we must liberally construe the arguments in appellant's brief. Tex.R.App.P. 38.9; Sanchez v. State, 98 S.W.3d 349, 355 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (asserting that "if the court is able to ascertain the nature of the complaint from the argument, the issue will be preserved for review"). Thus, we presume appellate counsel is asserting that because of the absence of a reporter's record, he cannot render effective assistance. In the three aggravated robbery cases, appellant filed a written motion to suppress. The clerks records contain no orders relating to these motions. Without a reporter's record, we are unable to determine if, how, or why the trial court ruled on those motions. That information is relevant to the merits of appellant's appeals as to the pleas in those cases; thus, the reporter's record is necessary to provide effective assistance of appellate counsel with respect to appellant's guilty pleas in three aggravated robbery cases. Accordingly, we reverse the judgments in the three aggravated robbery cases and remand them for a new trial. The difficulty of analysis in these cases, however, is in sharp contrast to the four aggravated assault cases. In the four aggravated assault cases, there were no pretrial motions filed. The clerk's record in each of those cases contains (1) appellant's signed agreement to plead guilty, without the benefit of a plea bargain, (2) his written acknowledgment of the punishment range in each case and of his statutory and constitutional rights, and (3) his signed judicial confession to committing each offense. We presume the regularity of the proceedings and documents in the trial court. Jones v. State, 77 S.W.3d 819, 822 (Tex.Crim.App. 2002); Dusenberry v. State, 915 S.W.2d 947, 949 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). The judgments in these cases recite that appellant waived his right to a jury trial, was admonished of the consequences of his plea, persisted in entering the plea, and that it appeared to the trial court that appellant was mentally competent and his plea was free and voluntary. As a result, we conclude the reporter's record is not necessary to resolve any issues concerning appellant's guilty pleas in the four aggravated assault cases. The clerk's records indicate appellant's pleas were open pleas, with no agreement as to punishment. Because the reporter's record is necessary to allow effective assistance of appellate counsel with respect to issues arising in the course of appellant's punishment hearing, we remand the four aggravated assault cases for a new punishment hearing only. We sustain appellant's sole issue. We reverse the judgments in the three aggravated robbery cases and remand them for new trials. We reverse the trial court's judgments as to punishment in the four aggravated assault cases and remand for a new punishment hearing.
Appellate cause numbers 05-05-01052-CR, 05-05-01053-CR, and 05-05-01056-CR.
Appellate cause numbers 05-05-01050-CR, 05-05-01051-CR, 05-05-01054-CR, and 05-05-01055-CR.