McGee v. State

711 S.W.2d 257, 1986 Tex. Crim. App. LEXIS 759
CourtCourt of Criminal Appeals of Texas
DecidedJune 11, 1986
Docket69324
StatusPublished
Cited by23 cases

This text of 711 S.W.2d 257 (McGee v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGee v. State, 711 S.W.2d 257, 1986 Tex. Crim. App. LEXIS 759 (Tex. 1986).

Opinions

OPINION

MILLER, Judge.

This is an appeal taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings thirteen grounds of error. We will abate the appeal.

In his last ground of error, appellant contends that the trial court erred by refusing to order the court reporter to transcribe the notes taken during the voir dire examination of several jurors. The record shows that appellant filed a notice of appeal on May 29, 1984. On June 1, 1984, appellant filed a designation of record on appeal and requested a transcription of all questions and answers of the prospective jurors given during voir dire examination. Appellant filed and the trial court granted a motion for permission to proceed on appeal in forma pauperis with appointed counsel.

On June 21, 1984, the trial court entered an order that the voir dire examination testimony of several prospective jurors not be transcribed and included in the record on appeal. These jurors were either struck peremptorily by the State, or excused on a challenge for cause agreed to by appellant [258]*258and the State.1 Appellant filed a timely objection to the record, and requested that the trial court order the court reporter to transcribe the voir dire examination of all prospective jurors and include the transcription in the record.

A hearing was held on appellant’s objections to the record on January 17, 1985. The trial court overruled appellant’s objections, and did not order transcription of the requested voir dire examination.

Appellant argues that the trial court erred by failing to direct the court reporter to include a transcription of the entire record for appeal. In support of his contention, appellant directs our attention to the following sections of Art. 40.09, V.A.C. C.P.:

4. At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court’s charge, and final arguments.... [T]he court shall have the power, after hearing, to enter and make part of the record any finding or adjudication which the court may deem essential to make any such transcription speak the truth in any particular in which the court finds it does not speak the truth and any such finding or adjudication having support in the evidence shall be final.
5. If a party desires to have all or any portion of a transcription of the court reporter’s notes included in the record, he shall so designate with the clerk in writing and within the time required by Section 2 of this Article. ... The court will order the reporter to make such transcription without charge to appellant if the court finds, after hearing in response to an affidavit filed by the appellant not more than 20 days after giving notice of appeal, that he is unable to pay or give security therefor.... The court reporter shall report any portion of the proceedings requested by either party or directed by the court.

Appellant contends that since section 4, as quoted above, has been interpreted by this Court to be a mandatory statute and must be followed regardless of whether the defendant has been harmed, citing Gamble v. State, 590 S.W.2d 507 (Tex.Cr.App.1979), Cartwright v. State, 527 S.W.2d 535 (Tex. Cr.App.1975), and Ex parte Jones, 562 S.W.2d 469 (Tex.Cr.App.1978), section 5, as quoted above, should also be held by this Court to be mandatory.

The State argues that since the prospective jurors were either excused on peremptory strike by the State or by agreed challenges for cause, appellant is precluded from raising grounds of error based upon their testimony; therefore, he is unable to demonstrate any harm caused by the trial court’s actions. Thus, in an effort to conserve taxpayers’ money in Hardin County, the trial court ordered that the unusable portion of the voir dire examination not be transcribed.

Section 5 of Art. 40.09, supra, provides that upon a finding of indigency, the trial court “will order the court reporter to make such transcription.” The transcription referred to in the statute concerns “all or any portion of the transcription of the court reporter’s notes” requested by appellant to be included in the record. The trial court is given no discretion under the statute: once the appellant requests the transcription, and after he is found indigent by the court, the transcription must be prepared as requested.

With all due respect to the trial court’s laudable motivation, we are forced to sustain appellant’s contention and abate the appeal for transcription of the entire voir dire examination. We do so not because we view taxpayer expense as irrelevant to the appeal process, but only because the statute is worded in the mandatory, and we have no power to uphold the trial court’s failure to follow the statute’s mandate. Until the Legislature sees fit to change the [259]*259wording of the statute, we, just as the trial court, must follow it.

As to the State’s contention that the indigent defendant must show harm before he or she is entitled to the entire transcription, we have had previous occasion to determine that no such harm is necessary. In Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972), the defendant was convicted of shoplifting one fishing lure valued at less than $50.00. The defendant filed a pauper’s oath requesting appointment of counsel on appeal and a free transcription of the court reporter’s notes. The trial court took no action on the defendant’s requests.

In considering the case on appeal, we discussed two United States Supreme Court decisions. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the defendant was convicted of a felony. The Supreme Court held that the due process and equal protection clauses of the Fourteenth Amendment were violated when a state provides for appeal in all criminal cases as a matter of right, but so administers the appeal process so as to deny full appellant review to an indigent appellant solely because of his inability to pay for a transcription of the record.

In Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971), the defendant was charged with a misdemean- or. The Supreme Court modified its earlier ruling in Griffin, supra, and held that although the State must afford an indigent defendant with a record sufficiently complete to permit proper consideration of his claims on appeal, it need not necessarily furnish a complete verbatim transcript. Rather, alternatives that provided effective appellant review were sufficient. The Supreme Court added that if the defendant’s grounds of appeal indicated a colorable need for a complete transcript, the burden was on the State to show that only a portion of the transcript or an alternative would be sufficient for an effective appeal on those grounds.

When we considered these two holdings in

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Bluebook (online)
711 S.W.2d 257, 1986 Tex. Crim. App. LEXIS 759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgee-v-state-texcrimapp-1986.