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Court Reporter

Jun 08
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Court Reporter Record

If a Tree Falls in the Forest… | The Importance of a Court Reporter

By Criminal Defense

Much like the existential question about the tree falling in the forest, if something occurs during a session of court and there’s no court reporter around to hear it (or transcribe it), did it really occur? More importantly, if the losing party wishes to appeal a ruling that took place during the time when the court reporter was not around, can that party prevail? The simple answer, according to the Texas Court of Criminal Appeals, is NO.

In Davis v. State, the appellant challenged a certain ruling (the granting of a continuance over defense objection), but there was no record of the session of court in which the ruling was made. Accordingly, the appellate court could not determine whether the trial court erred in granting the State’s motion. The appellant asserted that the trial court had a duty to make a record of the hearing and that any deficiency in the record must work against the State as the party that made the motion. Not so, held the CCA, overruling the 5th District Court of Appeals (Dallas).

The CCA explained:

Our case law…imposes an additional, independent burden on the appealing party to make a record demonstrating that [a certain] error occurred in the trial court. This includes a burden to object when the official court reporter is not present, as he is required to be under Rule 13.1, in order to preserve and error that may occur for appeal.

Even though the State had that burden at trial, the appellant, as the appealing party, had an obligation to present a record in the court of appeals that demonstrates he in entitled to appellate relief.

And with that, the CCA overturned the 5th District Court of Appeals, and affirmed appellant’s conviction.

Moral of the story for criminal defense lawyers: Always request (under section 52.046 of the Government Code) that a court reporter be present for open sessions of court. You never know what you might want to appeal later. And if for some reason the court reporter isn’t present and you get an adverse ruling, make a later record of it. Give the appellate court something to go on, or else you will certainly lose.  As the CCA put it, “it is the appellant who must bear the consequences of such a definicency in the record.”

Note: The CCA mentioned in footnote 19 that it has yet to weigh in on the question discussed in Polasek v. State, 16 S.W.3d 82 (Tex. App.—Houston [1st Dist.] 2000, pet. Ref’d) regarding whether Tex. R. App. P. 13.1 requires a court reporter at all sessions or whether section 52.046(a)(1) trumps. Section 52.046(a)(1) requires the court reporter only when one of the parties makes a request.

Judge Johnson concurred, but it is not clear (to me) why.

Jun 07
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Is a Defendant Entitled To Transcript of a Prior Mistrial?

By Jury Trial

Blackshear v. State (link not working for now) 14th District Court of Appeals (Houston) 2011.

In Blackshear, the jury convicted appellant of possession of a controlled substance, but could not agree on an appropriate sentence. The judge declared a mistrial for the sentencing portion of the case. The State, which did not put on any evidence during the initial sentencing phase, decided to recall some of the trial witnesses during the new sentencing hearing to give the new jurors a better taste of the evidence. Accordingly, the appellant requested a continuance so that he could obtain a transcript of the prior trial in order to prepare a proper defense during the new sentencing hearing. The trial court, however, was more interested in a speedy disposition and denied the request for a continuance, empaneled a new jury the very same day, and conducted the sentencing hearing the following day. On appeal, the 14th COA held that it was error for the trial court to deny the continuance. The appellant had a presumptive right to the transcript that the State did not rebut. Here’s how the court explained it:

The State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal when those tools are available for a price to other prisoners. Among these basic tools is a transcript of prior proceedings when needed for an effective defense or appeal. In determining whether a defendant needs a transcript, the Britt court took two factors into account: (1) the value of the transcript to an effective defense, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.

 In considering the first factor, the Britt court noted that “our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.” Ordinarily, the court concluded, a transcript of a prior mistrial is valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses. The Court of Criminal Appeals has expressly presumed a defendant’s need for a transcript and has imposed upon the State the burden to rebut the presumption.

An easy decision for the 14th COA in Blackshear. “Blackshear’s counsel should have been able to use the transcript from the first trial in his cross-examination in the second.” The trial court denied the request. No transcript = remand for new sentencing hearing.