NO. 12-08-00357-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RAY CHARLES HAWKINS, ' APPEAL FROM THE 114TH
APPELLANT
V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE ' SMITH COUNTY, TEXAS
MEMORANDUM OPINION ON REHEARING
The State has filed a motion for rehearing requesting reconsideration of our memorandum opinion issued on February 12, 2010. The State raises two issues. First, the State argues that we misapplied Texas Rule of Appellate Procedure 13.6. Second, the State argues that there is clear evidence of prejudice to the State in the record due to Appellant’s delay in seeking an appeal. We overrule the State’s motion for rehearing.
Texas Rule of Appellate Procedure 13.6
Rule 13.6 provides that a court reporter must file the untranscribed notes or original recordings of the proceeding with the trial court clerk when a defendant does not appeal. We referenced this rule when differentiating this case from Branch v. State, No. 03-07-0018-CR, 2008 Tex. App. LEXIS 3569 (Tex. App.–Austin May 16, 2008, pet. ref’d) (mem. op., not designated for publication). In Branch, the court found that a defendant was at fault because he had been a fugitive for many years and his being absent from the jurisdiction caused the notes of the trial to be destroyed. Id., at *15–16. We discussed Branch in tracing the extent of the relief granted to a defendant when the court of criminal appeals grants an out of time appeal.[1] This decision represented an instance where a court had, despite the grant of an out of time appeal, found that an appellant was not entitled to an appeal. The State did not cite Branch in its brief and has come forward with no cases where a court has held that a defendant who was granted an out of time appeal had, nevertheless, waited too long to assert his right to appeal. In two other cases cited in our opinion, courts held that appellants were entitled to new trials when the court of criminal appeals granted an out of time appeal and the record was unavailable. See White v. State, 916 S.W.2d 78, 81-82 (Tex. App.–Houston [1st Dist.] 1996, pet. ref'd); Duran v. State, 868 S.W.2d 879, 882 (Tex. App.–El Paso 1993, pet. ref’d).
As we noted, Texas Rule of Appellate Procedure 34.6(f) allows for a new trial when the record is timely requested and the loss is without the appellant’s fault. The relief granted by the court of criminal appeals in this case ordered that Appellant be “returned to that time at which he may give a written notice of appeal . . . .” Ex parte Hawkins, No. AP-75,957, 2008 Tex. Crim. App. Unpub. Lexis 504, at *1–2 (Tex. Crim. App. July 2, 2008) (per curiam) (unpublished). “That time” is the date the sentence was imposed. If the relief ordered by the court of criminal appeals returned Appellant to the date the sentence was imposed for all purposes, including considerations of fault for loss of the record other than affirmative acts that cause the record to be unavailable, the position taken in White and Duran, our inquiry on this point is ended. Under this construction of the relief granted by the court of criminal appeals, Appellant’s request for the record was timely and the loss of the record was without his fault.
If, on the other hand, the relief granted only works to allow for a timely request for the record, our holding that Appellant is without fault rests on two independent grounds. First, Appellant requested the record within the fifteen years that the record was required to be maintained pursuant to rule 13.6.[2] Second, the loss of the record cannot be traced to Appellant’s delay in bringing his appeal.
The State makes an interesting argument with respect to the application of rule 13.6. Appellant appealed his conviction in 1994. We dismissed that appeal as untimely filed. See Hawkins v. State, No. 12-94-00028-CR (Tex. App.–Tyler Feb. 17, 1994, no pet.) (per curiam) (not designated for publication). The State argues that rule 13.6 applies only in cases where there is not an appeal. Since Appellant did appeal this case, the State argues that rule 13.6 does not apply here.
The State asks, rhetorically, “[which] came first, the appeal or its dismissal.” The answer is that the twentieth day following the date to perfect Appellant’s appeal came first.[3] On that day, the reporter was obligated by rule 13.6 to give the notes to the clerk. As we stated in our opinion, Appellant’s notice of appeal was due October 27, 1993. Notice of appeal was not filed until December 27, 1993. The rules do not specifically anticipate what is to occur when a request for the record is filed, as here, after the date for perfecting an appeal. Presumably the court reporter would recover the notes from the clerk, although there is no specific mechanism that provides for this. Because the twentieth day following the date to perfect the appeal came first, it is plausible to assert that the notes should have remained with the clerk.
We have examined our file from the 1994 case. There was a motion filed to extend time for preparation of the reporter’s record.[4] As far as we can determine, no record was ever prepared. Ordinarily, the reporter will either file the notes with the clerk pursuant to rule 13.6 or prepare the record pursuant to a request. In this case, it does not appear that the reporter did either of those things, although a fair reading of the record suggests that preparations were underway to begin work on preparing the record when we dismissed the case.
The State argues that rule 13.6 does not apply and that the relevant government code section requires only that notes be preserved for three years and only if requested. See Tex. Gov’t Code Ann. § 52.046(a)(4) (Vernon 2005). Accordingly, the State appears to argue that because Appellant’s counsel filed a late notice of appeal and did not file a request to preserve the record, the court reporter was free to destroy any notes or records of the trial in this case as soon as this court dismissed Appellant’s first appeal. In fact, this did not happen, and there is a record of the jury selection and the punishment phase of the trial. For whatever reason, the record of the trial itself no longer exists.
The State argues that because “Appellant failed to timely request that the notes of this trial be preserved, it must be that he bears the fault for the fact that the notes are no longer available.”[5] There are two problems with this assertion. First, it is not generally understood that a defendant is at fault when he receives ineffective assistance of counsel. In fact, such a determination is a conclusion that counsel was so ineffective that the defendant’s constitutional right to counsel was violated. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984) (To obtain relief, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”). Second, as we pointed out in our opinion, there is no evidence as to why the notes or records are unavailable or when they became unavailable. In fact, the affidavits offered by the State conflicted as to who reported the trial. Accordingly, we cannot conclude that the unavailability of the record is due to Appellant’s delay in seeking an appeal.
Laches
The State’s second argument is that it has suffered prejudice and that relief should be denied on that basis. We note, as we did in the opinion, that the State has raised this argument twice before in the court of criminal appeals and that the court of criminal appeals has twice granted Appellant relief.
The State argues that it was prejudiced because it anticipates difficulties in retrying the case and because the record is unavailable. The State cites Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999), for the proposition that it must make a particularized showing of prejudice. The State must then show that the prejudice was caused by the petitioner having filed a late petition, and that the petitioner has not acted with reasonable diligence as a matter of law.
The State’s argument that it will suffer prejudice if it has to try the case again is not the kind of prejudice addressed in Carrio. The court explained that by prejudice it meant “the State must show [it] is prejudice[d] in its ability to respond to the allegations in the petition.” Id. Several sentences later, the court discusses whether the State has shown that it is “prejudiced in its ability to respond to the current claims.” Id.
The Carrio decision was based on Rule 9(a) of the Rules Governing U.S.C.A. § 2254 Cases. Rule 9(a) was deleted as unnecessary in light of 1996 amendments that altered federal habeas practice. See 28 U.S.C. § 2254, Rule 9, Advisory Committee note, 2004 Amendments. However, in construing Rule 9(a), the Supreme Court noted that Congress had not added a defense that the state would face additional difficulties upon retrial. See Vasquez v. Hillery, 474 U.S. 254, 265, 106 S. Ct. 617, 624, 88 L. Ed. 2d 598 (1986).[6]
Even if there were an independent basis in Texas law to conclude that difficulty in retrying the case is the kind of prejudice that will support a laches defense, the State has failed to demonstrate that it would suffer prejudice beyond that attendant to retrying any case after the passage of time. Instead, after proposing a new standard whereby relief should be denied because of prejudice to its ability to retry the case, the State argues that it is an “impossible burden” for it to be required to prove that it could not retry the case. We disagree.
The State could establish its inability to try a case by a variety of means. An investigator, for example, could testify that witnesses were unavailable or had died. A clerk could testify that the prosecution file has been destroyed. This is the kind of proof that is routine in cases where the state argues that it cannot respond to an ineffective assistance of counsel claim because the passage of time has impaired its ability to respond to the petition.[7] See, e.g., Ex parte Wolf, 296 S.W.3d 160, 168 (Tex. App.–Houston [14th Dist.] 2009, pet. ref’d).
The State also argues that it is prejudiced generally because the record is unavailable. However, as we have stated previously, there is no particularized showing that Appellant’s delay caused the loss or destruction of the record. It stands to reason that the passage of time has not helped matters. However, the record of the jury examination and sentencing hearing is available and there is no evidence as to when the missing portion of the record last existed or what happened to it. Accordingly, we cannot determine that the State has made a particularized showing that Appellant’s delay caused it to be unable to respond to his appeal.
Conclusion
The State has an interest in maintaining convictions. That interest is tested with every appeal and every collateral attack on a conviction. Appellant has offered no justification for his delay in seeking an appeal, although the court of criminal appeals has twice found that he was given ineffective assistance of counsel in preparing his appeal. The record in this case was lost before Appellant was able to bring his appeal. The evidence does not show that Appellant’s delay in seeking an appeal caused the loss of the record. We overrule the State’s motion for rehearing.
Sam Griffith
Justice
Opinion delivered May 12, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
[1] The decision in Branch does not rely on rules regarding preparation or preservation of the record because the conviction in that case became final only after the defendant was returned to the jurisdiction. See Branch, 2008 Tex. App. LEXIS 3569, at *15 n.8.
[2] Rule 13.6 provides as follows:
Filing of Notes in a Criminal Case. --When a defendant is convicted and sentenced, or is granted deferred adjudication for a felony other than a state jail felony, and does not appeal, the court reporter must--within 20 days after the time to perfect the appeal has expired--file the untranscribed notes or the original recording of the proceeding with the trial court clerk. The trial court clerk need not retain the notes beyond 15 years of their filing date.
[3] We agree with the State that Texas Rule of Appellate Procedure 11(d) controlled at the time of Appellant’s trial. That rule is the same as rule 13.6 for the purpose of our analysis.
[4] As an aside, we note that even in 1994 there was confusion as to who had reported the trial.
[5] It is undisputed that Appellant made an untimely request for preparation of the record filed along with his 1993 appeal.
[6] Congress struck a different and more mechanistic balance when it enacted the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d) (2002), which limited federal habeas petitions to one year after the exhaustion of state remedies.
[7] As the State points out, after remand in the Carrio case the trial court found that the State had been prejudiced in its ability to respond to the petition and the court of criminal appeals denied relief on that basis. See Ex parte Carrio, 9 S.W.3d 163 (Tex. Crim. App. 1999). Because of the nature of the subsequent written opinion—the court adopted the trial court’s findings––we cannot know what showing the State made in that case. See Carrio, 9 S.W.3d 163, 163 (Tex. Crim. App. 1999). The court did note in its original opinion that the State had, at that time, made only a “general argument.” See Carrio, 992 S.W.2d at 488. As the court points out, a general argument about prejudice suffered by the passage of time is merely an argument about delay, which the court has held to be inadequate as the sole measure of whether a laches defense is made. Id. We acknowledge that there is not a tight fit between the laches doctrine as outlined in Carrio and this case. The lack of a record, which the State was not actually aware of at the earlier habeas hearings, did not prejudice their ability to respond to Appellant’s claim that counsel waited too long to file his appeals. Nor does it directly prejudice the State’s ability to respond to Appellant’s current claim other than that the lack of the record means that Appellant cannot have an appeal.