Silva v. State

OPINION ON MOTION FOR REHEARING

Appellant contends on motion for rehearing that this Court erred in overruling his first point of error, in which he had argued that the trial court reversibly erred by not granting his motion for mistrial. We overruled his point on the grounds that no statement of facts from the hearing on his motion was contained in the appellate record.

On rehearing, appellant contends that we erred in so holding because it had been made clear to this Court that the court reporter who took notes at the hearing died soon after trial and that no record is available. Because of this allegation, we have reviewed the appellate record and motions which appellant has filed in this Court. We ultimately determine that appellant has not shown that he timely requested the statement of facts or that the statement of facts is actually available.

Appellant was sentenced in open court on September 28, 1990. Under Tex.R.App.P. 53(a), appellant had until December 27, 1990, to designate those portions of the record he desired to have prepared for appeal. We can find no “designation of record” in the appellate record or a request under Rule 53 for a statement of facts.1

In January 1991, when no statement of facts had been filed by the due date, appellant filed his first motion for extension of time to file the record. Appellant gave as a reason that three court reporters, A1 Flores, Pam Perez, and Jim Brooks, had worked at the proceedings. Affidavits of the three court reporters were attached. All three stated that they had not been requested to prepare a statement of facts until late January. Nonetheless, this Court granted appellant’s motion to extend the time for filing the statement of facts. Four volumes of the statement of facts *825were filed in March 1991. These four volumes contained most of the trial testimony, but they did not include the hearing on appellant’s motion for mistrial.

In April 1991, appellant filed a second motion for extension of time to file the statement of facts. In this motion, appellant stated that despite his diligent effort, he had been unable to locate one of the court reporters. This Court granted appellant’s motion to extend the time for filing the statement of facts.

On July 8, 1991, appellant filed his appellate brief. He raised as a point of error the trial court’s overruling his motion for mistrial, but he did not complain about a lack of statement of facts. Thereafter, on July 29, 1991, appellant filed another motion for extension of time to file the statement of facts. He did not request any particular extension limit. He stated that the extension was required because “it has been learned that the reporter’s record will be needed for proper consideration of this appeal.” Attached to the motion were two “memos” to appellant’s attorney. One of the memos reported that court reporter Jim Brooks had died. This Court granted appellant’s motion for extension of time to September 15, 1991.

That date passed, and appellant did not thereafter request any further extensions or request any relief from this Court. We then set the cause for submission, submitted the appeal, and considered the appeal on the record before us.

We are now confronted with the question of whether appellant has been de•nied a complete statement of facts through no fault of his own. See Emery v. State, 800 S.W.2d 530, 531-36 (Tex.Crim.App.1990). We conclude that he has not.

Under Rule 50(e), an appellant must demonstrate that he has made a “timely request” for a statement of facts. Emery, 800 S.W.2d at 533. A request for the statement of facts on appeal must be a “written request to the official reporter designating the portion of the evidence and other proceedings to be included therein.” Emery, 800 S.W.2d at 533; Tex.R.App.P. 53(a).

No request appears in the record, and it is apparent from the affidavits of the court reporters, which were filed along with appellant’s first motion for extension of time to file the statement of facts, that no such written request was timely made. While it appears from the State’s brief that some request was made at some time, that document is not shown in the appellate record.

Furthermore, even though this Court extended appellant’s time for filing the statement of facts, appellant never complained about the missing portions until after we had affirmed the conviction. While it was evident to us that the court reporter had died, there was no showing by appellant that his death prevented another court reporter from preparing a statement of facts from the deceased’s notes. Appellant simply allowed his extension of time for filing this record to expire without any explanation. Thus, appellant has filed nothing to show this Court that the missing record could not have been prepared. See also Tex.R.App.P. 50(e).

In short and in summary, appellant has not shown that he timely requested a statement of facts, and he had not shown that the missing testimony could not have been prepared despite the death of Jim Brooks. If appellant can show that he timely requested a statement of facts as required by Rule 53(a) and Rule 50(e) and if he can show that the statement of facts cannot be prepared, we will reconsider our holding.

Appellant’s motion for rehearing is overruled.

. It appears from the State’s brief (p. 21) that appellant did request a statement of facts at some point. It is apparent from the affidavits of the court reporters, which were attached to appellant’s first motion to extend the deadline for filing the statement of facts, that the requests were not made timely in compliance with Rule 53(a).