Frank James SKINNER a/k/a Frank Gene Skinner, Appellant,
v.
The STATE of Texas, Appellee.
No. 206-91.
Court of Criminal Appeals of Texas, En Banc.
April 1, 1992. Rehearing Denied September 30, 1992. Concurring Opinion on Denial of Rehearing September 30, 1992.Bruce W. Weathers, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., Regina Arditti, Asst. Dist. Atty., El Paso, and Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
Concurring Opinion of Judge Clinton on Denial of Rehearing September 30, 1992.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
BAIRD, Judge.
Appellant was convicted by a jury of delivery of a controlled substance. The *634 trial judge assessed punishment at twenty years confinement. The Court of Appeals affirmed. Skinner v. State, 799 S.W.2d 402 (Tex.App.El Paso 1990). We granted appellant's petition for discretionary review. We will affirm the judgment of the Court of Appeals.
I.
A recitation of the pertinent facts is necessary to address appellant's questions for review. Appellant's two count indictment alleged the offense of delivery of a controlled substance by actual transfer and constructive transfer. Five witnesses testified at appellant's trial: Darius Neyland, Jose Castro, John Rudd, Rudolfo Martinez and appellant. The trial judge charged the jury only on the theory of constructive transfer alleged in Count II. After the jury retired to deliberate, appellant moved for an instructed verdict, contending the evidence was insufficient to establish the offense of delivery of a controlled substance by constructive transfer. The trial judge denied the motion and the jury convicted appellant.
Appellant, in his designation of record on appeal, requested a transcription of his own testimony and the testimony of Darius Neyland. See, Tex.R.App.P. 50(b). On direct appeal, appellant's sole point of error challenged the sufficiency of the evidence to support the conviction.[1] The Court of Appeals affirmed the conviction holding that by providing only a "partial" statement of facts appellant
failed to present this Court with a complete record of the evidentiary aspect of his trial, Appellant has failed to preserve any of his contentions concerning the adequacy of the evidence to sustain his conviction. Beck v. State, 583 S.W.2d 338 (Tex.Cr.App.1979).
Skinner, 799 S.W.2d at 403.
Appellant's petition for discretionary review was granted on May 8, 1991. On June 13, 1991 we granted appellant's motion for leave to file a supplemental statement of facts and on June 26, 1991 we received a transcription of the testimony of Jose Castro and John Rudd. However, the testimony of Rudolfo Martinez is still lacking from the record before us.
II.
Appellant's first question for review presents a question recently considered by this Court, namely may a defendant challenge the sufficiency of the evidence to support his conviction with only a partial statement of facts.[2] We answered the question in the negative, holding that an appellate court cannot determine the merits of a challenge to the sufficiency of the evidence without a review of the entire record of the trial before the fact finder. Greenwood v. State, 823 S.W.2d 660, 661 (Tex.Cr.App.1992). In O'Neal v. State, 826 S.W.2d 172 (Tex.Cr.App.1992) we held: "[a] defendant who wishes to raise a sufficiency issue on appeal has the burden of ensuring that the entire record of the trial before the fact finder is before the appellate court, and may not request a partial statement of facts and rely on the presumption of Rule 53(d)." O'Neal, 826 S.W.2d at 173.
As previously noted, although the appellate record has been supplemented, the statement of facts lacks the testimony of Rudolfo Martinez. Therefore, the record before us is not the entire record of the trial before the fact finder. Accordingly, appellant's question for review is overruled.
*635 III
Appellant's second question for review asks: "Does this Court's opinion in Beck v. State [583 S.W.2d 338 (Tex.Cr.App.1979) ], apply to an indigent defendant?" The record reflects that appellant filed a "Motion for Free Statement of Facts" and the court reporter was ordered to prepare the statement of facts "at no charge to the Defendant." Appellant originally requested the court "reporter transcribe the entire proceedings in this cause...." However, appellant subsequently filed an "Amended Request for Preparation of Statement of Facts" which "specifically requested that the [court] reporter transcribe the matters and proceedings set forth in the Designation of Record." As previously noted, appellant designated only his own testimony and the testimony of Darius Neyland.
It is apparent from the record that appellant's decision to bring forth only a partial statement of facts is unrelated to his indigent status. Therefore, our decision to grant appellant's second question for review was improvident. Accordingly, appellant's second question for review is dismissed.
IV.
Appellant's third question for review asks: "Does the application of Beck v. State to the instant situation conflict with Texas Rule of Appellate Procedure 53(c) and Robinson v. State, [661 S.W.2d 279 (Tex.App.Corpus Christi 1983, no pet.)]?"[3] We believe the more timely question to be: Does the application of Greenwood conflict with Rule 53(c)? We answer the question in the negative.
Tex.R.App.P. 53(c) provides:
All matters not essential to the decision of the questions presented on appeal shall be omitted. Formal parts of all exhibits and more than one copy of any document appearing in the statement of facts shall be excluded. All documents shall be abridged by omitting all irrelevant and formal portions thereof.
In Greenwood, we held that the entire statement of facts was essential for an appellate court to review a sufficiency of the evidence claim.
... In its sufficiency review, a reviewing court bears the responsibility of reviewing the entire record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781 [2788], 61 L. Ed. 2d 560 (1979) ] This constitutional mandate is predicated upon the ability of the reviewing court to consider all the relevant evidence in a given case. The presentation of only a partial record makes such a consideration impossible. Because the reviewing court must consider all relevant record evidence and Rule 50(d) requires that the complaining party present sufficient portions of the record to demonstrate error of a reversible nature, the entire record of the trial before the fact finder is necessary to show error when an appellant raises a sufficiency point of error. [O'Neal v. State, 811 S.W.2d 219, 221 (Tex.App.Dallas, 1991, pet. granted)]....
* * * * * *
... We hold that without an agreed or complete statement of facts, an appellate court cannot consider the "facts" of the case to determine whether or not sufficient evidence exists to support the conviction.
Greenwood, 823 S.W.2d at 661.
We find no conflict between Rule 53(c) and Greenwood. Simply stated, the appellate record must contain all matters essential to resolution of the points of error raised on appeal. In that regard, the entire record of the trial before the fact finder is essential for an appellate court to resolve a point of error challenging the sufficiency of the evidence to support the conviction.
*636 Appellant's third question for review is overruled.
The judgment of the Court of Appeals is affirmed.
BENAVIDES, J., concurs in result. CLINTON, J., dissents.
OPINION CONCURRING IN DENIAL OF APPELLANT'S MOTION FOR REHEARING
CLINTON, Judge, concurring.
The majority opinion on original submission verifies a paraphrastic rendition of a certain common law maxim: The hard Greenwood case made bad law. See Greenwood v. State, 823 S.W.2d 660 (Tex. Cr. App.1992), affirming Greenwood v. State, 802 S.W.2d 10 (Tex.AppHouston [14th] 1990). Accord: O'Neal v. State, 826 S.W.2d 172 (Tex.Cr.App. 1992).
The Greenwood court went beyond the narrow context of the question presented, first to lay down and then elaborate on a broader proposition, viz.: "The presumption of Rule 53(d) does not apply to sufficiency challenges." Id., at 661-662.[1] In the instant cause the Court adheres to Greenwood, although again the issue is not properly presented here.
The State asserts here, as it did in the court of appeals, that appellant "violated Rule 53(d)." Brief for the State, at 2; Brief for the State, at 2. As the record reflects, the fact of the matter is that appellant failed to comply with the mandatory requisite condition prescribed in Rule 53(d) for appealing on a partial statement of facts, viz.: "[Appellant] shall include in his request [for a partial statement of facts] a statement of the points to be relied on and shall thereafter be limited to such points."[2]
For that reason alone the motion for rehearing is without merit.[3] Accordingly, I *637 now concur only in the judgment of this Court affirming the judgment below.
NOTES
[1] Specifically, appellant contended in his point of error:
THE TRIAL JUDGE ERRED IN FAILING TO GRANT APPELLANTS MOTION FOR DRECTED VERDICT, FOR THE REASON THAT THERE WAS NO EVIDENCE OF A CONSTRUCTIVE TRANSFER.
[2] Specifically, appellant's first question asks:
Does this Court's opinion in Beck v. State bar review of a sufficiency of evidence point as to one element of the offense where the partial statement of facts presented to the Court of Appeals contains sufficient information for the Court to consider and dispose of the single issue raised on appeal?
[3] The decision in Robinson is not controlling because its holding was limited to the "policy of [the Corpus Christi Court of Appeals] on certain matters pertaining to criminal appeals." Robinson v. State, 661 S.W.2d 279, 281 (Tex.App. Corpus Christi 1983).
[1] In Greenwood, supra, defendant filed and obtained a rehearing on his motion for new trial. When it was denied he then gave notice of appeal and "pursuant to Rule 53(d)" requested the court reporter to prepare a statement of facts, designating "only the testimony of [a named juror] from the Motion for New Trial hearing." His designation enumerated ten points of error upon which he would rely on appeal, one of which claimed that "[t]he evidence was insufficient to sustain the conviction." On appeal all other points dealt with alleged jury misconduct. Greenwood (Clinton, J., concurring at 665); see also Greenwood, supra, 802 S.W.2d, at 11-12.
Notwithstanding that an issue of sufficiency of evidence adduced at trial to sustain a judgment of conviction may be tendered as an issue by motion for new trial. Rule 30(b)(9), the rule still is that "new" testimony extrinsic the record to establish insufficiency cannot be used to contradict, supersede or substitute for evidence introduced at trial. Greenwood (Clinton, J., concurring at 666). The rule is not to be confused with, for example, that which is "newly discovered evidence." See e.g., Jones v. State, 711 S.W.2d 35, at 36-37 (Tex.Cr.App.1986).
All emphasis supplied above and throughout is mine unless otherwise indicated.
2. Contemporaneously with his notice of appeal appellant filed the following papers:
Designation of Record on Appealin which he requested the record include, inter alia:
[2] The testimony of Darius Neyland.
3. The testimony of Frank Skinner.
11. The request by the Defendant for a Statement of Facts in this cause. Motion for Free Statement of Factswithout limitation
Request for Preparation of Statement of Factsin which he "specifically" requested the court reporter to "transcribe the entire proceedings in this cause[.]"
Defendant's Affidavit for Indigencyswearing that he was unable to pay for, inter alia, "the Statement of Facts," and requesting the court to order the reporter to furnish "a Statement of Facts of the entire trial proceedings[.]"
Some two weeks later appellant filed an "Amended Request for Preparation of Statement of Facts," in which he "specifically requested that the reporter transcribe the matters and proceedings set forth in the Designation of Record filed herein." See above. On the same day the judge of the trial court signed an "Order Granting Statement of Facts."
In none of these pleadings did appellant include "a statement of the points to be relied on," as required by Rule 53(d).
[3] The procedural default aside, the simple facts of this case reveal the utter errancy of rationale in Greenwood
Its linchpin is that to comply with its constitutional mandate a reviewing court must be enabled to "consider all relevant evidence in a given case," and its asserted belief is that "presentation of only a partial record makes such consideration impossible." Id., at 661. Not true in this cause.