Brannan v. State , 137 Tex. Crim. 611 ( 1939 )

Appellant was convicted of burglary, and sentenced to serve three years in the penitentiary.

The record is before us without any bills of exception or statement of facts contained therein.

It appears that immediately after the overruling of the motion for a new trial on June 1, 1939, the appellant gave notice of appeal to this court, and made arrangement with the court reporter, who had taken down the testimony at the trial, for a narrative statement of facts. That the trial court was in continuous session from June 1st to June 12th. That on June 16th thereafter the court reporter, who had taken down the testimony, was stricken with a heart attack, and immediately died therefrom. The appellant's attorney soon thereafter took the notebooks of the deceased reporter to two other court reporters, one of whom used the same shorthand system as the deceased reporter, and they both certify that they were unable to read such notes; that it was impossible for them to prepare an intelligible statement of facts therefrom. It also appears that there were many bills of exceptions taken on the trial of the case, the notes thereof being contained alone in the reporter's notes; that by agreement the exceptions and objections to the court's charge had been dictated to the reporter, who would afterwards transcribe the same and file them as of the date dictated, which objections had not been transcribed at the time of the reporter's death.

It is claimed that there were many witnesses testifying, and many bills of exception taken, and the attorney trying same, — not expecting to have to prepare a statement of facts from memory, and not charging his mind with the matters contained in the bills of exception, — wholly relied upon the expectancy of the reporter furnishing him with not only a copy of the notes taken down at each occurrence but also a statement of facts.

Under the circumstances we are constrained to order a reversal of this cause on account of the fact that through no fault of appellant, or his attorney, he has been deprived of a statement of facts herein. See Little v. State,97 S.W.2d 479, and cases there cited.

The judgment is reversed and the cause remanded.

ON STATE'S MOTION FOR REHEARING.