Opinion
No. 05-15-01539-CR
08-11-2017
DEVANTE JEROME FOSTER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F14-31115-R
DISSENTING OPINION
Before Justices Francis, Brown, and Schenck
Dissenting Opinion by Justice Brown
Because I conclude that the record of the punishment phase of appellant's trial is necessary to resolve his appeal, and the absence of any record constitutes a fundamentally unfair proceeding, I respectfully dissent.
After the jury found appellant guilty of aggravated sexual assault of a child, the jury was discharged and the trial court proceeded to the punishment phase. TEX. PENAL CODE ANN. § 22.021 (West 2016). Because appellant had no prior convictions, the range of punishment for the offense was broad: five years to ninety-nine years, or life imprisonment and a fine of up to $10,000. Id. at § 12.32. The trial court assessed punishment at life imprisonment, the statutory maximum, and assessed no fine.
Appellant timely appealed and filed an affidavit of indigency requesting the trial court appoint him appellate counsel and requesting the trial court order the court reporter to prepare the record. The trial court granted appellant's requests. Appellant's attorney filed a motion for new trial in which she challenged, among other things, appellant's life sentence.
The record was initially due to be filed on April 9, 2016. On April 11, 2016, the court reporter, Sharina Fowler, requested a thirty-day extension to file the reporter's record, citing a heavy workload. We granted Fowler's request and ordered her to file the record by May 13, 2016. On May 18, 2016, Fowler submitted a letter stating she would file the record on or before May 23, 2016. She did not do so.
On May 24, 2016, we ordered the trial court to determine why the record had not been filed, and the earliest date by which it could be filed. We abated the appeal to enable the trial court to comply with our order. The trial court conducted a hearing to make the findings we requested. At that hearing, Fowler testified she had not filed the record because she was unable to locate the record from the punishment phase; however, she was ready to file the remainder of the record.
Fowler further testified that she had handwritten notes that showed the State did not call any witnesses during the punishment phase. Her notes showed that appellant called seven witnesses, and that the State cross-examined two of them. Fowler also testified about what her notes indicated the witnesses said at trial. Finally, Fowler also testified that her notes did not show that any objections were made during the punishment phase.
Fowler did not specify whether the punishment phase was recorded stenographically or electronically. However, it appears Fowler's handwritten notes included the information a court recorder is required to log when proceedings are electronically recorded. That information includes: (1) the number and style of the case before the court; (2) the name of each person speaking; (3) the event being recorded such as the voir dire, the opening statement, direct and cross-examinations, and bench conferences; (4) each exhibit offered, admitted, or excluded; (5) the time of day of each event; and (6) the index number on the recording device showing where each event is recorded. See TEX. R. APP. P. 13.2. Rule 13.2 does not ask a court recorder to attempt to determine what may or may not constitute an objection or to characterize, interpret, or otherwise summarize the testimony of the witnesses.
Appellant's attorney, who did not represent appellant at trial, could not present competent evidence of what occurred (or did not occur) during the punishment phase that might entitle appellant to a new punishment hearing. Therefore, she stated that appellant did not want to proceed based on recollections. The trial judge stated that she recalled: (1) all of the evidence from both the guilt-innocence and the punishment phases of trial; (2) that there were no objections during the punishment phase; (3) that all of the witnesses who testified during the punishment phase were favorable to appellant; and (4) that, as confirmed by Fowler's notes, the State did little cross-examination. The trial judge said the evidence of appellant's guilt justified a life sentence, so that was the punishment she assessed.
After we reinstated the appeal, we ordered appellant to file his brief without the benefit of the record from the punishment phase of his trial. In his second issue, appellant contends he is entitled to a new punishment hearing because he cannot appeal any issues related to that proceeding, including a claim that his trial counsel was ineffective or that the trial judge was biased or not impartial.
As the majority notes, appellant relies on Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001) to support his contention he is entitled to a new punishment hearing. In Kirtley, the record of Kirtley's adjudication and punishment hearing was destroyed in a tornado. See Kirtley v. State, No. 05-99-00236-CR, 2000 WL 688602, at *2 (Tex. App.—Dallas May 19, 2000) (op. on reh'g), rev'd, 56 S.W.3d 48 (Tex. Crim. App. 2001). On appeal, Kirtley asserted he was denied due process of law because the loss of the record prevented him from appealing punishment issues, including a claim he received ineffective assistance of counsel during that phase of the proceedings. Id. We concluded the missing record was not necessary to resolve Kirtley's appeal. Id. Instead of addressing Kirtley's argument, we concluded we did not need to review the record to resolve the appeal because Kirtley was not entitled to appeal from the decision to adjudicate and because the punishment the trial court assessed was within the statutory range.
The Court of Criminal Appeals reversed us because we had failed to give effect to appellant's full right to appeal, specifically his right to assert a claim of ineffective assistance of counsel at punishment. See Kirtley, 56 S.W.3d at 51-52. The Court explained that because Kirtley was entitled to assert that claim, the record from the punishment phase of his trial was necessary to his appeal. Id. at 52.
Two years later the Court of Criminal Appeals decided Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003). In Routier, the record was neither lost nor physically destroyed. The official court reporter, Sandra Halsey, transcribed, certified, and filed a complete record of the proceedings. Id. at 558. However, there were numerous mistakes in Halsey's record, which were the result of her failure to properly edit the record after her notes were transcribed. Id. at 558-60.
After the trial court removed Halsey as the court reporter in the case, another court reporter, Susan Simmons, corrected and certified Halsey's record, primarily with the use of audiotapes Halsey had taken of the proceedings; however, there were fifty-three pages of the transcription for which Simmons had no audiotape. Simmons corrected those pages by comparing them to Halsey's original stenographic notes. According to Simmons, those notes were complete, within the range of competent court reporting standards, and were not the reason there were multiple mistakes in Halsey's record. Id. at 560, 564, 567, 568, 570. Simmons refused to certify those pages as a true and accurate transcript of the proceedings. Id. at 562. Instead, she certified them as a true and accurate transcription of Halsey's notes of the proceedings. Id. at 570. Subsequently, the trial court ordered that the Simmons record replace the entire Halsey record. Id. at 562.
Halsey could not correct and certify those pages herself because she had lost her certification while the appeal was pending. See id. at 566.
On appeal, Routier argued she was entitled to a new trial because the uncertified portion of the record could not be used in her appeal and was therefore lost or destroyed. She claimed that that portion of the record was necessary to her appeal because "prospective jurors received preliminary instructions that may have been erroneous." The Court summarily rejected Routier's argument because she had not brought a point of error complaining of the instructions. Id. at 571. It was in that context that the Court stated "[t]he suggestion that instructions may have been erroneous, without more, does not make that portion of the record necessary to her appeal." Id. The Court further added that the instructions contained in the uncertified portion of the record were virtually identical to those given later that same day. Id. It is thus clear that the Court was relying on both the existence of the uncertified portion of the record and its contents in disposing of Routier's complaint. In other words, neither Routier nor the Court of Criminal Appeals was forced to speculate about what the missing record might contain.
Nevertheless, in Nava v. State, the Fourteenth Court of Appeals interpreted Routier as holding that a defendant's speculation that a missing record might reveal error is not sufficient to show the missing record is necessary to an appeal's resolution. Nava v. State, 379 S.W.3d 396, 413 (Tex. App.—Houston [14th Dist.] 2012), aff'd on other grounds, 415 S.W.3d 289 (Tex. Crim. App. 2013). Based on its interpretation of Routier's holding, the Fourteenth Court concluded that, in order to show a missing portion of the record is necessary to an appeal, a defendant must show error actually occurred during a proceeding for which no record exists. The Fourteenth Court acknowledged that its interpretation of Routier created a conflict with Kirtley; however, it concluded Routier was a "reverse course" from Kirtley. Id. at 413; see also id. at 414 (conjecture may have been sufficient under Kirtley, it is not sufficient under Routier).
In this case, as in Kirtley, the record from the entire punishment phase of appellant's trial was lost or destroyed. As a result, appellant cannot appeal issues related to a mandatory and critical phase of his trial. Because he had a right to appeal those issues, appellant contends he is entitled to a new trial on punishment. Instead of endeavoring to distinguish Kirtley, the majority agrees with the Fourteenth Court that Routier marked a reverse course from Kirtley.
According to the majority, under Routier, appellant was required to show some error actually occurred during the punishment phase of his trial. The majority does not explain how such a showing would be possible without either a certified or uncertified record of the proceedings. See, e.g., Granado v. State, 228 S.W.2d 530, 521 (Tex. Crim. App. 1950) (statements in a brief cannot give appellate court knowledge of what occurred at a proceeding for which there is no record); May v. State, No. 05-13-00438-CR, 2014 WL 4207149, at *3 (Tex. App.—Dallas Aug. 26, 2014, no pet.) (mem. op., not designated for publication) (counsel's statements about what occurred at a hearing cannot substitute for a record of the pertinent proceedings). I respectfully conclude that the Fourteenth Court and our majority in this case have misinterpreted Routier. By doing so, I believe they have created a conflict where none exists. Routier had the benefit of a transcript of the missing record; that transcript was also available for the Court of Criminal Appeals to review. In contrast, Kirtley had no record at all of the entire punishment phase of his trial. It was for that reason Kirtley was entitled to a new punishment hearing.
Here, because we have no record of the punishment phase of appellant's trial, to review that phase of the proceedings, the majority relies on the record from the post-trial hearing, including Fowler's testimony and statements made by the trial judge about her recollections of the punishment hearing. Of note, the majority does not conclude any factual statement was made during that hearing, which, if true, renders our review of the punishment phase unnecessary. See Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013) (trial court's memory of a discrete fact may establish appellate review of record unnecessary). Rather, it reviews appellant's sentence by relying, at least in part, on what Fowler selectively chose to write down about the witnesses and their testimony, and the trial court's largely conclusory recollections of the punishment hearing. It is obvious that we cannot review appellant's punishment based on the record of the post-trial hearing. See May, 2014 WL 4207149, at *3 (counsel's statements about what occurred at a hearing cannot substitute for a record of the pertinent proceedings). Similarly, we cannot rely on the trial judge's explanation as to why she assessed a life sentence in resolving appellant's appeal. See Eskridge v. Wash. State Bd., 357 U.S. 214, 215 (1958) (trial court's conclusion no reversible error occurred no substitute for appellate review). Moreover, neither Fowler's testimony nor the trial court's statements establish that appellant lacks a viable claim related to the punishment phase of the proceedings. Cf. Nava, 415 S.W.3d at 307 (missing record not necessary to appeal when appellate court can otherwise conclude it would support no viable claim).
The concurrence suggests that as this is not a capital case, the error is somehow of less consequence. A sentence of life in prison is of sufficient consequence to demand due process of law. The concurrence also highlights some of the implications of the majority's holding. When a trial court's official court reporter has lost the record, the trial court may conduct a hearing to recreate that record. This Court will then consider the trial court's reconstruction in place of the missing record, without appellant's agreement and over his objection.
According to rule 34.6(f)(4), a trial court is not permitted to replace a lost reporter's record absent agreement of the parties. See TEX. R. APP. P. 34.6(f)(4). Appellant is not required to agree to replace the record and he should not be forced to recreate a record based on the memories, if any, of the individuals who were present. As the Court of Criminal Appeals explained in Nava, "the point of having a record is not to have to rely upon the recollection of the trial judge or the parties." Nava, 415 S.W.3d at 306.
According to the concurrence, because appellant was personally present during the punishment phase, he should have been able to identify any trial errors or deficiencies in trial counsel's performance. However, appellant was entitled to the assistance of an attorney to review the record of the proceedings for him. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (lawyers in criminal courts are necessities, not luxuries); cf. Evitts v. Lucey, 469 U.S. 387, 396 (1985) (unrepresented appellant is unable to protect the vital interests at stake on appeal from criminal conviction).
It is undisputed that the attorney who was appointed to represent appellant in his appeal and whose duty it was to advocate on appellant's behalf was unable to review the testimony of seven mitigation witnesses who asked for leniency during the punishment phase of appellant's trial before he received the maximum prison sentence available under the law.
The concurrence speaks of impeding a fishing expedition in this case. If a criminal attorney's review of an appellate record is indeed such a fishing expedition, it is a constitutionally guaranteed one. See Anders v. California., 386 U.S. 738, 744 (1967) (court-appointed counsel has a duty to carefully search the record for arguable errors). And it is the duty of zealous criminal advocates to be fishermen. See id.
Due process affords appellant the right to have us review the punishment phase of his trial for error. Evitts, 469 U.S. at 393 (in a first appeal of right, procedures employed "must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution"). Appellant also has the right to the assistance of counsel to review the record of his trial to determine whether he had grounds to appeal. Appellant has the right to assert any such grounds, and our Court's duty is to determine the merits of appellant's claims. Because the record of the punishment phase was lost through no fault of the appellant, Devante Foster was denied all of the above-described rights. Due process and fairness, I believe, require our Court to give him a new punishment hearing.
Therefore, I respectfully dissent.
/Ada Brown/
ADA BROWN
JUSTICE 151539DF.P05