Gomez v. State

962 S.W.2d 572, 1998 Tex. Crim. App. LEXIS 15, 1998 WL 40233

• Court: Court of Criminal Appeals of Texas
• Decided: February 4, 1998
• Docket: 1244-95
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge,

delivered the opinion of the Court.

Appellant was charged by indictment for the offense of burglary of a habitation. V.T.C.A., Penal Code, Section 30.02 (1989). A jury found him guilty as charged, found two enhancement paragraphs true, and sentenced him to eighty-seven years of confinement.

The Court of Appeals affirmed appellant’s conviction, 905 S.W.2d 735 (Tex.App.—Houston [14th Dist.] 1995), and he filed a petition for discretionary review with this Court alleging two grounds for review. We granted appellant’s first ground for review in order to decide whether “the Court of Appeals erred in holding that appellant did not specifically designate missing exhibits for inclusion in the record [and therefore] [ ] cannot complain of their absence on appeal.” We will affirm the judgment of the Court of Appeals.

FACTS OF THE CASE

The judgment was signed and entered on February 12, 1993. Appellant filed his written notice of appeal on the same day. On March 15, 1993, appellant filed a motion for new trial, which was subsequently denied on April 6, 1993. On April 14, 1993, appellant, by means of a letter written to the court reporter, requested the preparation of an original and one copy of the statement of facts. The pertinent part of the letter reads as follows:

“Please be advised the defendant in the above and [sic] styled and numbered cause has given Notice of Appeal. Defendant requests that you prepare and deliver an original and one copy of a Statement of Facts for use in this appeal. This Statement of Facts must be in question-and-answer form of the evidence, exhibits and all other matters, including voir dire and arguments, that were reported in this cause. It must also be certified.”

The following day, appellant filed a designation of transcript with the clerk, pursuant to Tex.R.App.P. 51(b),¹ that listed sixteen items to be included in the appellate record. Appellant failed, however, to request that the exhibits be included in the transcript.

On September 16, 1993, the Court of Appeals issued an order for preparation of a supplemental statement of facts requesting that copies of the exhibits be included pursuant to Tex.R.App.P. 55(b). Appellant then submitted to the Court of Appeals an affidavit from the court reporter stating the original trial exhibits had been inadvertently destroyed. Appellant complains that the most significant exhibits cannot be replaced.² These exhibits were found in the victim’s home and were offered by the State at trial to prove appellant’s presence in the victim’s home at the time of the burglary. Expert testimony showed that a latent fingerprint on State’s Exhibit No. 6 matched the thumb print of appellant.

ISSUE

Because appellant raises the question of whether he properly requested the missing exhibits for inclusion in the appellate record, we must necessarily address the issue of whether exhibits are considered part of the statement of facts. Appellant properly requested a statement of facts pursuant to Rule 53(a). If the exhibits are to automatically be included in the statement of facts, then appellant’s request was sufficient and the exhibits should have been included. This Court recently addressed a similar issue in Melendez v. State, 936 S.W.2d 287 (Tex.Cr.App.1996). Upon further analysis, we have determined that our initial conclusion in Melendez was erroneous for two reasons: (1) it failed to adequately distinguish between original exhibits and copies of exhibits; and (2) it failed to apply an harmless error analysis to the lost exhibits before granting a new trial.³

ANALYSIS OF RULE 50(e)

On direct appeal appellant argued that he was entitled to a new trial pursuant to Rule 50(e) because some of the exhibits from his trial, had been inadvertently destroyed and could not be replaced. The Court of Appeals disagreed holding that appellant was not entitled to a new trial because “exhibits are sai generis and may not be neatly ‘pegged’ as being solely part of the transcript or the statement of facts.” 905 S.W.2d at 739.

Rule 50(e) provides:

“When the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the appellate court as in other cases. If the appellant has made a timely request for a statement of facts, but the court reporter’s notes and records have been lost or destroyed without appellant’s fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts.”

The majority of cases dealing with this issue were analyzed under Article 40.09, V.A.C.C.P., (repealed 1986). This Court has stated, however, that the cases decided under Article 40.09 continue to- be helpful in the analysis of this ground for review and that the principles discussed are still applicable to an analysis under Rule 50(e). Gibbs v. State, 819 S.W.2d 821, 828 (Tex.Cr.App.1991).

In each of the cases which granted the defendant a new trial pursuant to Rule 50(e), the missing portion of the record was either the entire statement of facts, the final argument, or an essential portion of the trial which was relevant to the appeal. See Dunn v. State, 733 S.W.2d 212, 214 (Tex.Cr.App.1987) (court reporter’s notes lost on part of an evidentiary hearing held on thirty-seven pretrial motions, part of voir dire examination of two venire persons excused on the State’s challenge for cause, and all of the testimony of one witness); Gamble v. State, 590 S.W.2d 507, 509 (Tex.Cr.App.1979) (court reporter failed to transcribe notes from final arguments); Timmons v. State, 586 S.W.2d 509, 512 (Tex.Cr.App.1979) (defendant deprived of all of the court reporter’s notes and transcription of the trial); Pierson v. State, 147 Tex.Cr.R. 15, 177 S.W.2d 975, 976 (1944) (defendant deprived of the entire statement of facts).

In order to determine the applicability of Rule 50(e) to missing exhibits, we must determine whether the exhibits are part of the statement of facts (thus, the court reporter’s notes and records), the transcript (the clerk’s records), or neither as the Court of Appeals suggests in its opinion. Gomez, 905 S.W.2d at 739. In order to determine the correct placement of the exhibits in the record, we look to the Rules of Appellate Procedure and its Appendix.

Our analysis begins with Rule 50(a) which states that the contents of the record “shall consist of the transcript and, where necessary to the appeal, the statement of facts." In deciding what is to be included in both the transcript and the statement of facts we refer to Rules 51 and 53, respectively. Rule 51(a) lists the items that are to be included in the transcript on appeal but does not mention the inclusion of exhibits. Rule 51(b) provides, however, that any party may file a written designation with the clerk specifying matters for inclusion in the transcript and that such designation must be specific.

Rule 51(d) allows for the inclusion of original exhibits in the transcript “when the trial court is of the opinion that [the] original papers or exhibits should be inspected by the appellate court in lieu of copies ...” In this circumstance the trial court, or the appellate court on its own initiative, may order such exhibits to be sent for the appellate court’s inspection.

Moreover, Rule 11(a)(4) provides that the duties of the court reporter shall include the filing of all exhibits with the clerk. This transfers the custody and control over all exhibits admitted during the course of the proceedings to the clerk. Hence, at the completion of the trial, the actual exhibits become part of the clerk’s records, not the court reporter’s.

Rule 53 addresses the rules regarding the statement of facts on appeal. Rule 53(a) orders an appellant to make a written request to the court reporter designating the portion of the evidence to be included in the statement of facts. There is no reference made to the automatic inclusion of exhibits.

In determining whether any type of exhibit is to be included in the statement of facts, we look to the Texas Rules of Appellate Procedure Appendix for Criminal Cases.⁴ Rule 1 of the Appendix gives the instructions for the format of both the transcript and the statement of facts on appeal. Specifically, Rules 1(b)(4), (5), and (6) are helpful in the evaluation of the placement of exhibits. For example, the relevant part of Rule 1(b)(4) reads as follows:

“The court reporter shall also show in a separate table in the first volume of the statement of facts the page at which any exhibit or other document copied therein appears, and the pages at which it is identified (when an exhibit is identified by more than one witness, page references shall be made where each witness identified the exhibit.)” (Emphasis added.)

Rule 1(b)(5) states:

“(5) Unless ordered otherwise pursuant to Rule 51(d), neither physical evidence (gun, clothing, controlled substance, etc.) nor ordinarily an original exhibit is to be included in the record on appeal. Each item of physical evidence must be described alone on a separate piece of paper; it and a legible copy of other exhibits will appear respectively on a separate page of the statement of fads. However, when a legible copy of a photograph or any paper exhibit may not be made, the original exhibit shall be included in the record under order of the trial court made pursuant to Rule 51(d).” (Emphasis added.)

Rule 1(b)(6) further directs:

“Copies of exhibits received in each separate proceeding or hearing, including those descriptions of physical evidence, will be placed in numerical order at the end of the statement of facts of that proceeding or hearing, or in a separate volume if the exhibit material is voluminous.” (Emphasis added.)

The foregoing provisions lead us to the conclusion that original exhibits are not part of the statement of facts but are part of the transcript, if so designated by the trial or appellate court. See Rule 51(d). Copies of exhibits and summary descriptions of physical exhibits are part of the statement of facts. Appendix Rule 1(b)(6). This is one distinction that this Court failed to make clear in its opinion in Melendez, supra. In Melendez, we simply stated:

“We therefore hold that when a complete statement of facts is timely requested by appellant or ordered by the trial court the court reporter shall include and display in the statement of facts copies of all admitted exhibits in the form and manner prescribed by the rules of this Court.” (Footnote omitted).

“We further hold on much the same basis that such exhibits are part and parcel of ‘notes,’ and also constitute ‘records,’ of the court reporter within intendment and for purposes of the TRAP 60(e).” Melendez, 936 S.W.2d at 292. (Emphasis added).

When set out in emphasis, it is easy to realize that what is part of the court reporter’s notes and records is the copies of the exhibits and not the exhibits themselves. The opinion in Melendez, taken as a whole, failed to make the distinction clear. In fact, the opinion in Melendez, tarnishes the result at the end of the majority opinion by stating, “[ajdmitted exhibits become part of the statement of facts, and as such are notes and records of a court reporter for purposes of TRAP 50(e).”

SUBSTITUTION AND REVIEW OF THE RECORD

When any portion of the record is lost or destroyed, Rule 50(e) allows for substitution with a duplicate even if the appellant does not consent to the substitution. Harris v. State, 790 S.W.2d 568, 576 (Tex.Cr.App.1990). If the missing portion of the record is the description of the physical exhibits at the end of the statement of facts the court reporter may, upon request, reconstruct the summaries for purposes of the appeal. If the descriptions are contained elsewhere in the record but are not in the proper form, the appellate court shall make a case-by-case determination of whether the failure to include the summaries of the exhibits hinders the court’s review of the case. If the missing descriptions in no way impede the review of the record, the alternate location of the descriptions will suffice. The principles of judicial economy frustrate the remand of a case to have the court reporter insert pages at the end of the statement of facts if there are sufficient descriptions located elsewhere.

APPLICATION

In the case at hand, the summary descriptions of the physical exhibits were not included in the statement of facts. However, there is an exhibit list located in the front of the statement of facts which gives a page reference for each exhibit admitted over the course of the proceedings. This exhibit list provides a sufficient description of each physical exhibit, even though it is not in the appropriate form. The exhibits themselves are not contested in this appeal. We hold that, although copies or descriptions of exhibits are part of the statement of facts, a reversal may be required only if the lost or destroyed exhibits cannot be reproduced and are not located elsewhere in the record but are necessary for the appellate court’s review of the case on appeal.⁵

We granted appellant’s ground for review to decide whether the Court of Appeals erred in holding that the appellant did not specifically request that the exhibits be included in the appellate record and therefore could not complain of their absence on appeal. Appellant argues that his request for the statement of facts includes a request for the inclusion of exhibits. We disagree. The language in the letter merely requests that the court reporter’s notes be transcribed in question-and-answer form including the parts of the proceedings which dealt with the admission of exhibits. Furthermore, original exhibits should not be placed in the statement of facts, but should be included in the transcript pursuant to Rule 51(d). As previously stated, appellant filed a designation of transcript but did not specifically request the inclusion of the exhibits as the rule requires. Therefore, he cannot now complain that the actual exhibits are missing from the record.

Although the descriptions of the physical exhibits are missing from the end of the statement of facts, sufficient descriptions are located in the exhibit list. Moreover, we find that these descriptions are not necessary for an adequate review of this case.

Finally, the record reflects that any error resulting from the lost original exhibits was harmless. The record reflects that officer Bruce Clawson collected State’s Exhibit Numbers Six through Twelve from the crime scene. The State then called fingerprint expert, officer Robert Leon Elliot, who testified that the fingerprints on exhibits 6 through 12 matched the fingerprints of the defendant. This testimony was uncontroverted. In fact, the record reveals that the defense attorney did not cross-examine officer Elliot. Thus, because the evidence is uncontroverted that the fingerprints found on the now missing exhibits were in fact the defendant’s, the lost exhibits are not necessary to the appeal’s resolution. Moreover, the latent fingerprints on the original food wrappers are of no assistance to us in resolving appellant’s grounds for review because we are not qualified to interpret and compare latent fingerprints. We conclude that the loss of the exhibits was harmless, in no way impedes our review of the record, and in no way hindered the defendant’s right to a meaningful appeal.

For the reasons stated above, appellant’s sole ground of review is overruled. The judgment of the Court of Appeals is affirmed.

BAIRD, J., filed a dissenting opinion. OVERSTREET and MEYERS, JJ., dissented without opinion.

1 . All references to rules are to those in the "old” Texas Rules of Appellate Procedure, unless otherwise indicated. Moreover, we apply the "old” rules in deciding in this case whether original exhibits are part of the "court reporter’s notes and records” under Tex.R.App.Proc. 50(e). See Paragraph 2 of Texas Court of Criminal Appeals August 15, 1997, order approving of revisions to the Texas Rules of Appellate Procedure. "Old” rule 50(e) has been merged into current Tex. R.App.Proc. 34 and in particular Tex. R.App..Proc. 34.6(f)(l)-(4) which, in cases like this, provides that an appellant is entitled to a new trial if (1) the appellant has timely requested a reporter's record, (2) without the appellant's fault, a significant exhibit has been lost or destroyed, (3) the lost or destroyed exhibit is necessary to the appeal’s resolution, and (4) the parties cannot agree on a complete reporter’s record.

2 . Over the course of the trial, the State offered twenty-nine exhibits, all of which were inadvertently destroyed. While the court reporter was able to reconstruct some of the exhibits, appellant focuses on State’s Exhibits Numbers Six through Twelve. These seven exhibits include: food wrappers, soft drink cans, and a cigarette butt which cannot be reproduced.

3 . In Judge Mansfield’s concurring and dissenting opinion in Melendez, he agrees that the appellant should be granted a new trial because a key piece of evidence was inadvertently lost but states that if it is proven that the missing exhibits "are of no value to the reviewing court and have no impact on the resolution of appellant’s points of error, then reversible error is not present.” Melendez, 936 S.W.2d at 299, (Mansfield, J., concurring and dissenting) (citing Tex.R.App.Proc. 81(b)(2) and Harris v. State, 790 S.W.2d 568 (Tex.Cr.App.1989)).

4 . The provisions in the appendix are a directive by the Court of Criminal Appeals pursuant to the provisions of Rules 51(c) and 53(h), T.R.A.P., and became effective simultaneously with the Texas Rules of Appellate Procedure on September 12, 1986.

5 . We note that the outcome in Melendez would be the same even if the Court would have conducted an harm analysis. In Melendez, the missing exhibits were necessary to the appellate court’s review of the case and the court of appeals had requested that the exhibits be forwarded to the court for inspection. Melendez, 936 S.W.2d at 295.