Martin v. State , 1988 Tex. App. LEXIS 348 ( 1988 )

OPINION

BURGESS, Justice.

Glenn Earl Martin was convicted of capital murder and was sentenced to life imprisonment in the Texas Department of Corrections. This occurred in July 1977. Martin filed a pro se notice of appeal, but this was four days beyond the time allowed to give notice of appeal. Martin then exhausted state habeas corpus remedies and began a legal journey through the federal courts. On July 18, 1984, the Fifth Circuit Court of Appeals affirmed the U.S. District Court’s granting of an out-of-time appeal. Martin v. Texas, 737 F.2d 460 (5th Cir.1984). Martin then refiled a pro se notice of appeal on June 4, 1985 and was appointed counsel on June 19, 1985. On September 6, 1985, this appointment was reaffirmed and the trial court entered an order providing appellant a free transcript and statement of facts. That same day the court made the following findings:

1) That Roger Russell, then Official Court Reporter for the 9th District Court, recorded the proceedings in the case by stenograph machine and audio tape recording.

2) The stenographic notes of the proceedings are missing in their entirety with no possibility of being located.

3) The audio tape recordings of the proceedings are audible and comprehensible, however they are incomplete. One tape containing portions of the voir dire examination is missing and not likely to be located. One tape containing a part of the testimony of the State’s case in chief is missing and cannot likely be located.

4) As a consequence of the foregoing, it is not possible to produce a complete record of defendant’s trial.

Thereafter, this court, in an unpublished opinion, Martin v. State, No. 09-85-160 CR (Tex.App.—Beaumont February 12, 1986), abated the appeal and ordered that the audio tape recordings be transcribed to determine if appellant’s right of appeal could be fully protected. Subsequently, this court entered two additional orders concerning the filing of the statement of facts. On April 14, 1987, the last of twelve volumes of the transcript was filed with this court. Appellant now urges seven points of error. The first point of error concerns the status of the statement of facts and is dispositive of the appeal.

Under this point, appellant urges that a transcription of the audio recordings is not a transcription of the court reporter’s official notes and therefore does not qualify as a statement of facts under the statutes and rules. We need not address that question since he also alleges that the transcription of the audio recordings is incomplete.

Appellant claims, and the state does not refute, that the statement of facts prepared from the audio tapes is deficient in the following manner:

a. the voir dire examination of twenty-eight members of the panel is missing;

b. the voir dire examination of four members of the jury is missing;

c. some unknown amount of the state’s case in chief is missing.

The state, in its brief, says:

The State is painfully aware of the numerous Appellate Court decisions which hold that an Appellant who is deprived of a Statement of Facts on appeal without fault or lack of diligence on his part is entitled to a new trial....

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In summary, it is the State’s position, although based solely on notions of fundamental fairness — to the State — that granting a new trial because of the incomplete — not wholly missing — record is an inappropriately harsh remedy where the court reporter had every right in the world to destroy his notes....

As recently as April 8, 1987, our court of criminal appeals has faced the question of an incomplete record. In Dunn v. State, 733 S.W.2d 212 (Tex.Crim.App.1987), the court stated:

[W]e have long held that the omission of a portion of the statement of facts from the record on appeal mandates reversal irrespective of whether the accused shows, or even alleges, that he suffered harm thereby.

Id. at 216 (emphasis theirs). The state argues that Dunn should be distinguished because it was a capital murder case in which the death penalty was imposed and further that it is not a case in which the reporter’s notes were allowed to be destroyed under the then existing statute. Both of these arguments fail. There have been numerous cases less than the death penalty in which new trials were ordered because of the lack of a statement of facts. There have also been numerous cases where new trials were ordered because of the granting of an out-of-time appeal after the court reporter’s notes had been destroyed. Austell v. State, 638 S.W.2d 888 (Tex.Crim.App.1982); Ex parte Beck, 621 S.W.2d 810 (Tex.Crim.App.1981); Ex parte Garcia, 548 S.W.2d 405 (Tex.Crim.App.1977); Ex parte Young, 517 S.W.2d 288 (Tex.Crim.App.1974); Ex parte Campbell, 494 S.W.2d 842 (Tex.Crim.App.1973); Ex parte Coleman, 487 S.W.2d 119 (Tex.Crim.App.1972); Ex parte Ramirez, 483 S.W.2d 259 (Tex.Crim.App.1972); Ex parte Perez, 479 S.W.2d 283 (Tex.Crim.App.1972); Ex parte Gaines, 455 S.W.2d 210 (Tex.Crim.App.1970); Ex parte Veasley, 437 S.W.2d 857 (Tex.Crim.App.1969); Ex parte Gray, 437 S.W.2d 871 (Tex.Crim.App.1969).

Therefore, faced with the unassailable fact that the record before us is, at best, incomplete, we sustain point of error number one.

The dissent concludes that appellant waived his right to appeal. This is beside the point at this juncture. The Fifth Circuit Court of Appeals was aware of the question of waiver because it stated in its first opinion in this case, Martin v. Texas, 694 F.2d 423 (5th Cir.1982): “At the sentencing hearing, Martin’s retained counsel stated that he had discussed an appeal with his client and that Martin had ‘no desire to make an appeal in this case’; no timely notice of appeal was filed.” The Fifth Circuit then remanded the case to the district court for an evidentiary hearing on the issue of ineffective assistance of counsel. The Fifth Circuit later held that the failure of Martin’s counsel to advise him of his right to court-appointed counsel if indigent amounted to ineffective assistance of counsel and, in view of the fact that he had not been advised of this right by the trial court, an out-of-time appeal should be granted. Martin v. Texas, 737 F.2d 460 (5th Cir.1984). This waiver issue has been fully and fairly litigated in the other courts. In any event, the state did not raise the waiver issue before this court. The dissent details the jury charge and a portion of the jury’s verdict. It also details many of the facts. Perhaps this is to show that appellant was convicted of a horrible crime and is a “continuing threat to society.” This is also beside the point. We are called upon only to address the legal issues raised. We have done so. The judgment of the trial court is reversed and remanded for a new trial.

REVERSED AND REMANDED.