Wallace v. State ( 1940 )

This cause was originally dismissed because of a defective bail bond. The record has been perfected in this respect, the appeal is reinstated and the case will now be disposed of on its merits.

Appellant contends that he was deprived of a statement of the facts without fault on his part. It will be noted from the original opinion herein that appellant was tried before the Hon. B. W. Patterson, Regular Judge of the 88th Judicial District, who was sitting in this cause for the Hon. Walter G. Russel, then the regular Judge of the 7th Judicial District of which Smith County is a part. Shortly after appellant's trial, Mr. Bascom Gist, who was then the District Attorney for Smith County, became District Judge by appointment to succeed Judge Russell on his resignation. It seems that upon the conclusion of the appellant's trial, Judge Patterson resumed his official duties in his own judicial district.

Appellant, in due time, prepared and filed with the clerk of said court an affidavit in which he alleged that he was financially unable to pay for a statement of the facts and transcript or give security therefor. He called Judge Gist's attention thereto several times and requested that he make an order requiring the court reporter to make a statement of the facts proved upon the trial. Judge Gist seems to have been under the impression that appellant would have to present the same to Judge Patterson, who presided over the trial, or to Judge Russel, who was at the time of appellant's trial, the regular judge of said Court. This appellant failed to do, evidently believing that the order could be made by Judge Gist.

Art. 5, Sec. 11 of the Texas Constitution provides among other things as follows: "No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, OR WHEN HE SHALL HAVE BEEN COUNSEL IN THE CASE. * *" This provision has been construed to mean that the incapacity of the disqualified judge extends to any action with reference to a case involvingthe exercise of judicial discretion. In short, such a judge may perform purely ministerial acts, but not any acts involving the exercise of judicial discretion. See Taylor v. State, 81 Tex. Crim. 359, 195 S.W. 1147, Patterson v. State, 83 Tex. Crim. 169, 202 S.W. 88, Cock v. State, 8 Crim. App. 659; 25 Tex. Juris., 301 and authorities there cited.

Assuming that appellant has used that degree of diligence required by law in attempting to secure a statement of the facts, the question then arises whether the action of Judge Gist in entering an order requiring the court reporter to make a statement of facts would be the performance on his part of a purely ministerial act, or would be one involving the exercise of judicial discretion. If his action were purely ministerial, then he might enter the order, notwithstanding the fact that he had been an attorney in the case. If his action involved the exercise of judicial discretion, then he could not enter said order, since under the Constitution and law he would be disqualified.

We are of the opinion that the order here requested did not involve the exercise of judicial discretion but was a ministerial act. Therefore when appellant notified Judge Gist that the affidavit had been filed and requested him to make an order directing the court reporter (who was then under his control and direction) to prepare a statement of the facts, Judge Gist should have complied with the request. This court has held an appellant's right to a statement of facts, upon proper presentation of a pauper's affidavit, to be absolute, and that no discretion was invested in the trial court to refuse the same. See Art. 760, sec. 6 Cow. C. P., Ex Parte Fread, 83 Tex. Crim. 465, 204 S.W. 113; Ballinger v. State,8 S.W.2d 159; Rice v. Roberts, 177 S.W. 149; Rice v. State,135 Tex. Crim. 626, 122 S.W.2d , 194; Williams v. State,102 S.W.2d 228 where the authorities are collated.

Under the circumstances reflected by this record, we think appellant would not be required to have such ministerial act performed by the Judge who tried the cause. Since it appears that appellant made serveral requests without success to have Judge Gist make the desired order, we are of the opinion that appellant did everything required of him by the law in order to obtain a statement of facts. The object and purpose of the law is to accord to everyone convicted of an offense denominated a felony, no matter how poverty stricken such person may be, the right of an appeal and to have his case properly presented to this court for review.

Having reached the conclusion that appellant was deprived of a statement of the facts without any fault on his part, the judgment of the trial court is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.