Billie v. State , 1980 Tex. Crim. App. LEXIS 1377 ( 1980 )

OPINION

CLINTON, Judge.

These appeals follow convictions for the offense of aggravated rape wherein the jury assessed punishment for both appellants at thirty years confinement.

At the outset, we must address appellants’ contentions that the trial court erred in failing to grant their requests for a transcription of the court reporter’s notes of their first trial which ended in a hung jury. We conclude, for reasons about to be stated, that under the Supreme Court’s holding of Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), each appellant was entitled to a transcription of the court reporter’s notes of their first trial. Accordingly, the judgment will be reversed.

Each appellant was indicted for the offense of aggravated rape pursuant to V.T.C.A., Penal Code, § 21.03 on February 1, 1977. As a result of appellants’ indigency, counsel was appointed on February 7, 1977. Appellants entered pleas of not guilty to the instant offense and were tried upon said pleas on May 23-26,1977. After deliberating for over eight hours over a two-day period, the jury reported that it was hopelessly deadlocked on the issue of appellants’ guilt or innocence and the trial court granted appellants’ motion for mistrial in the afternoon of May 26, 1977.

On June 6, 1977, appellant Billie¹ filed a motion requesting a transcription of the court reporter’s notes of his first trial on the grounds that he needed the transcription of the court reporter’s notes both as a discovery device in preparing for his second trial and as a tool at the trial itself for the possible impeachment of the State’s witnesses. Appellant Billie further stated in his motion that he was unable to purchase a transcription of the court reporter’s notes, reaffirming his pauper’s status sworn to by an affidavit dated May 26, 1977 yet maintaining that if in fact he had the requisite funds, he would purchase such a transcription. The trial court denied Billie’s request that same day.

Appellant Billy, represented by different counsel, joined in his co-defendant’s request for a copy of a transcription of the court reporter’s notes of their initial trial August 3, 1977.² Appellant Billy’s request was similarly denied by the trial court the same day.

Appellants’ second trial on the merits began on August 22, 1977, consumed some five days, and the jury returned verdicts of guilty and assessment of punishment already stated above.

Succinctly stated, the evidence adduced below tended to show that appellants met the prosecutrix on the evening of December 25, 1976 in the company of her common law husband, and her sister-in-law (who had been dating appellant Billy). After the group had visited several bars in East Dallas, complainant’s husband passed out or fell asleep and was placed in his automobile. At this juncture, complainant accompanied both appellants to their automobile where complainant testified, Billy produced a knife and proceeded, under threat of death, to have intercourse with her. They then drove to White Rock Lake where each appellant again had intercourse with her, she says, without her effective consent. Appellants concede the acts of intercourse were in fact consummated, but, they say, only after complainant consented to them.

The record reflects that counsel for Billie attempted to impeach the complainant during cross-examination, through the use of his own notes taken during the initial trial. After the prosecutor objected to this form of impeachment, the trial court held a hearing outside the presence of the jury where counsel for appellant Billie renewed his request for a transcription of the court reporter’s notes of the mistrial, after first requesting that the court reporter who transcribed the events of the first trial be ordered to produce her notes of the mistrial so that the complainant’s previous answers could be placed before the jury. The trial court overruled both requests.

It was not until further cross-examination of the prosecutrix that a stipulation was entered into between the State and appellant which provided as follows:

“[T]he State of Texas, Defendants Johnny Billie and Daniel Billy hereby stipulate that if Ann Meredith [the court reporter at the mistrial] were present to testify at this trial she would testify as follows: She was the court reporter at the prior hearing of this case, May 23rd through 26th, 1977. D_M-, the complainant, testified under oath as to the following. One, she thought that Johnny Billie put the knife to her throat in the parking lot. Two, she was raped four times, twice by each Defendant. Three, she could not remember if there was a knife in the Defendant’s hand in the back seat of the car and Investigator T. M. Holmes testified at the prior hearing of this case.”

On direct examination at the second trial, the prosecutrix testified that Daniel Billy was the individual who in fact held the knife to her throat and that she was raped three times, and not four as she had noted at the first trial. The third inconsistency in complainant’s testimony at the second trial was that unlike her recollection at the first trial, she recalled that Daniel Billy had a knife in his hand while they were in the backseat of the automobile. The thrust of appellants’ contention is that, while these three inconsistencies were in fact stipulated to by the State, without a transcription of the court reporter’s notes from the initial trial, there was no viable way of knowing just how many more inconsistencies existed for impeachment purposes. We agree.

In Britt v. North Carolina, supra, the Supreme Court reaffirmed its holding in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) and its progeny:

“[A]s a matter of equal protection, [the State] must provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners.... [Tjhere can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal.”

404 U.S. at 227, 92 S.Ct. at 433.

In support of its position that appellants “were not harmed in any way” by the trial court’s denial of their request for the court reporter’s notes of the mistrial, the State pointedly refers us to Austin v. State, 451 S.W.2d 491 (Tex.Cr.App.1970) and Perbetsky v. State, 429 S.W.2d 471 (Tex.Cr.App.1968),³ contending that appellants “made no showing of any particularized need for any or all of the transcript” from their initial trial. Yet in Britt the Supreme Court expressly rejected the contention the State seeks to advance here, noting that:

Our eases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case."⁴

404 U.S. at 228, 92 S.Ct. at 434.

The State points to the fact that it stipulated to the inconsistencies alluded to above as proof that appellants’ counsel was able to go over complainant’s prior testimony in considerable detail with the court reporter and that such was a viable alternative to a full-blown transcription of the court reporter’s notes. We do not agree. Again, the Supreme Court observed in Britt:

“We have repeatedly rejected the suggestion that in order to render effective assistance, counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial. Moreover, we doubt that it would suffice to provide the defendant with limited access to the court reporter during the course of the second trial That approach was aptly rejected as ‘too little and too late’ in United States ex rel. Wilson v. McMann, 408 F.2d 896, 897 (2nd Cir. 1969) ... A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight.”

404 U.S. at 229-230, 92 S.Ct. at 434-435.

The record below evidences the fact that appellant Billie’s initial request for a transcription of the court reporter’s notes from the mistrial was made on June 6,1977, approximately ten days after the mistrial and almost three months before the retrial. Those cases in this Court construing Britt⁵ focus on the need for such a request to be made timely and pursued with due diligence. On the strength of this record, we are not hardpressed to distinguish those cases from the instant cause on the matters of timeliness and due diligence given appellants’ timely and repeated requests for the transcription of the court reporter’s mistrial notes.

In the case at bar we perceive no reason, given the means by which a transcription of the court reporter’s notes from the first trial could have been readily furnished to appellants, for the continued opposition to granting such a request on appellants’ behalf. Fundamental fairness requires that these indigent appellants be furnished a transcription of the court reporter’s notes of their mistrial, a commodity which they surely would have purchased as a matter of course had they been financially able. Any other holding herein would not be consistent with the Supreme Court’s dictum in Griffin v. Illinois, supra:

“[TJhere can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”

351 U.S. at 19, 76 S.Ct. at 591.

Restated, our holding today is simply that appellants were, and upon a retrial are, entitled to a copy of the transcription of the court reporter’s notes from their initial trial and that the trial court’s denial of their requests were, under the aegis of Britt v. North Carolina and our interpretation thereof, reversible error.⁶

Our disposition of these causes as detailed above does not require us to address appellant Billie’s remaining contention that his request for a mistrial should have been granted on the grounds of prose-cutorial misconduct.⁷

For the error pointed out, the judgments are reversed and remanded.

1 . We note that although appellants are first cousins, they spell their respective surnames differently Daniel with a “y” and Johnny with an “ie”.

2 . The record below does not reflect why appellant Billy did not join in his co-defendant’s request for the transcription of the court reporter’s notes on June 6, 1977.

3 . Though appellants’ briefs quote extensively from the Supreme Court’s opinion in Britt, we note that the State has not seen fit to either mention or in any way distinguish Britt, choosing instead to rely upon cases decided prior to the Supreme Court’s pronouncement in Britt.

4 . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

5 . In Shaw v. State, 479 S.W.2d 918 (Tex.Cr.App.1971), the Court noted that under the facts presented, appellant was not entitled to a free transcript of the testimony adduced at the examining trial though appellant’s conviction was reversed on other grounds. Johnson v. State, 504 S.W.2d 493 (Tex.Cr.App.1974), the first case of sufficient magnitude before this Court after Britt, rejected appellant’s request for a copy of his mistrial transcript on the grounds that no ruling was ever obtained on appellant’s motion initially and that a subsequent request was made and overruled on the day of trial. Because of the disposition of Johnson on independent and adequate procedural grounds, the Court did not reach the substantive issue posed by Britt. Similarly in McCarter v. State, 521 S.W.2d 296 (Tex.Cr.App.1975) and Jackson v. State, 536 S.W.2d 371 (Tex.Cr.App.1976), denial of the request for the transcriptions of the court reporter’s notes rested on the grounds that appellant in each case had either failed to make a timely request for such a transcription or had otherwise failed to exercise due diligence in asserting his claimed right. Indeed, in Jackson, supra, the Court noted that the holding in Britt requires that as a matter of equal protection a state must provide an indigent defendant with a transcript of prior proceedings when the transcript is needed for an effective defense or appeal. However, because the facts of the case showed that the appellant in Jackson suffered no harm in his appellate strategy, denial of his request was not error, 536 S.W.2d at 374.

6 .The writer concurs in the view expressed by then Justice Douglas’ dissent, in Britt v. North Carolina, supra, insofar as the latter’s disapproval of the “alternative” of calling the court reporter to testify as to what a particular witness’ answers were at a prior proceeding. As Justice Douglas opined:

“[I]f you have caught the witness in a contradiction, it is the more clearly shown if the exact words previously used by the witness are brought to the jury’s attention .. . Calling the reporter to read such prior testimony during the examination, however is rarely a practicable method of confronting the witness with such contradiction. Even if the judge will permit the practice, the wisdom of its use is questionable. The jury and court may grow impatient, and the witness will have been afforded a considerable period of time to think about the matter and be prepared with an explanation or excuse.”

404 U.S. at 241-242, 92 S.Ct. at 441, quoting R. Keeton, Trial Tactics and Methods 103 (1954) (Douglas, J., dissenting).

7 .We note from a perusal of the briefs and the record that the conduct of the prosecutors in trying this case might very well in and of itself have mandated a reversal of these convictions notwithstanding our disposition of appellants’ first ground of error. There is no place in our adversary system of justice for personal attacks by prosecutors upon defense counsel or similar attacks upon defendants “over the shoulders of his counsel.” Cf. Crutcher v. State, 481 S.W.2d 113 (Tex.Cr.App.1972). However, the primary responsibility for ensuring that attacks of this nature are not condoned or otherwise permitted rests not with this Court, but with the trial court. In this connection we observe the lamentation of the trial court outside the presence of the jury after one particular stressful episode:

“.. . I just can’t make gentlemen out of either one of you and I can’t keep you from making sidebar comments, I can’t keep you from making ignorant and stupid objections. I can’t do anything. There’s nothing I can do about it.”

Cf. Rivera v. State, 161 Tex.Cr.R. 438, 278 S.W.2d 164 (1955).