Navarro v. State , 141 Tex. Crim. 196 ( 1940 )

Appellant complains because of the fact that, as he claims, he was deprived of a statement of facts with no fault upon his part. It appears from an affidavit herein filed by appellant's attorney, J. J. Collins, that upon the trial of this cause the trial court appointed an attorney to advise with appellant relative to the filing of an application for a suspended sentence. That such a plea was filed by the attorney, and after what the trial court considered a proper understanding of the statutory warning, appellant pleaded guilty to the offense of murder, which was charged in the indictment. Appellant and his son were both charged with the same offense in the same indictment. It appears from the record that testimony was offered both by the State and the defendants, and the jury granted appellant's son's plea for a suspended sentence, but refused that of appellant, and he was sentenced to a term of five years in the penitentiary. It further appears that no notes were taken by the court reporter relative to the testimony heard at the trial, and upon appellant giving notice of an appeal to this court, neither the trial court, the reporter, the State's Attorney, nor the counsel appointed by the court were able to make up a statement of such facts from memory, and though demanded by appellant's later employed attorney, no statement appears in the record.

A motion for new trial was filed by the attorney who had been appointed by the court to represent appellant. The motion was overruled on April 5, 1940, to which order appellant excepted and gave notice of appeal to this court. Appellant's bond pending appeal was fixed at $2,500.00, and on the same day, April 5th, appellant entered into recognizance and was released pending the appeal. On April 13th, during the trial term of court, but after the jurisdiction of this court attached appellant, through his present attorney, filed a motion requesting the trial court to reopen the case and again consider a motion for new trial.

There is no question but that the trial court had control over its judgments and orders during the term at which they were entered, provided the court had not lost jurisdiction by reason of the notice of appeal. Said notice of appeal was never withdrawn. Article 828, C. C. P. makes it very clear that after notice of appeal is given it suspends and arrests "all further proceedings in the case in the court where the conviction was had, until the judgment of the appellate court is received by the court from which the appeal was taken." The only thing the trial court may do in a case after notice of appeal has been given is to substitute lost or destroyed records. Tores v. State, 74 Tex.Crim. R., 166 S.W. 523. The trial court heard evidence on the motion which had been filed on April 13th, overruled the motion, and appellant undertakes to bring before this court by bill of exception certain things regarding the original plea entered by appellant and other matters. This bill of exception has no part in the record. The trial court was without jurisdiction to entertain the motion or to hear evidence relating thereto.

Appellant urges that he has been deprived of a statement of facts. In so far as the recitals of the trial judge in the so-called bill of exception relates to or throws light on that issue we think it may be considered, the same as an independent statement of the trial judge could be looked to, because it relates to a matter not a part of the trial record, but to something occurring subsequent to the trial.

An accused may appeal his case although he has entered a plea of guilty. Sec. 1 of Art. 760, Vernon's Ann. C. C. P. of Texas, as amended by Acts 42nd Legislature, 1st C. S., Ch. 34, reads as follows:

"Where the defendant in a criminal case appeals, he is entitled to a statement of facts certified by the trial judge and sent up with the record; provided that said statement of facts shall be in narrative form."

Section 6 of said Art. 760 provides:

"When any felony case is appealed and the defendant is not able to pay for a transcript of the testimony or give security therefor, he may make affidavit of such fact, and upon the making of such affidavit, the court shall order the official court reporter to make a narrative statement of facts and deliver it to such defendant. In all cases where the court is required to and does appoint an attorney to represent the defendant in a criminal action, such reporter shall be required to furnish the attorney for said defendant, if convicted and where an appeal is prosecuted, with a transcript of his notes. For each said service he shall be paid by the State of Texas, upon the certificate of the trial judge, one-half of the rate provided by law in civil cases."

Art. 2324 Rawle C. S. points out the duties of the Court Reporter, one of which is to "attend all sessions of the court, take full shorthand notes of all oral testimony offered in every case tried in said court." etc.

While Section 7 of Art. 760 Cow. C. P. points out that parties may prepare a statement of facts independent of the notes of the official reporter, in the practical operation of the trial courts attorney's and judges are so accustomed to rely on the reporter that they have ceased to take notes themselves or to charge their minds with the facts developed upon the trial.

The trial judge certifies in the so-called bill of exception that appellant advised the court that appellant desired to make application for a suspended sentence and that the court appointed an attorney to prepare and present such application, "and that otherwise the defendant was not represented by counsel in the trial of his said cause;" that none of the testimony of the witnesses upon the trial was taken by the court reporter; that the trial judge remembers part of the testimony of some of the witnesses, but that the testimony of other witnesses he does not remember, but could recall substantially what evidence they gave; that counsel now representing appellant requested of the trial judge a narrative statement of facts certified by him.

Appellant's present counsel — as shown by his affidavit filed in this court — requested the court reporter to furnish counsel with a statement of facts for which he would be paid, and that upon being advised by the reporter that he was not present at the trial and took no notes of the evidence given counsel sought the assistance of appellant in making up a statement of facts, but that appellant was unable to give him any aid whatever; that the attorney appointed by the court to represent appellant would not attempt to make a statement of facts because he had not taxed his memory with any of the evidence given; that the district attorney was then requested to make up a statement of facts, but he advised counsel for appellant that he (the district attorney) had no sufficient recollection of the evidence to undertake it; that present counsel for appellant then requested the trial judge to make up a statement of facts, but this had not been furnished.

Appellant undoubtedly had the right to appeal; having this right he was also entitled under the provisions of the statutes heretofore quoted to have a statement of the evidence taken upon his trial. Under the circumstances heretofore related it seems that without fault on his part he has been deprived of a statement of facts, and that a reversal of his case must follow.

This case demonstrates the advisability of having the court reporter take the evidence even on a plea of guilty, as the failure to do this in the present instance is the primary cause of not having a statement of facts before us.

The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.