dissenting.
I respectfully file this dissenting opinion.
This Court itself has formulated a rule that dictates when an appellate court must reverse after finding error occurred during the defendant’s trial. “If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review.” (My emphasis.) Rule 81(b)(2), Rules of Appellate Procedure. The only exception to this rather harshly written rule of appellate procedure provides that if the beneficiary of the error, the State, can convince the appellate court beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment that was assessed, then the cause should not be reversed because of the error that was committed. Simply because the State cannot use the testimony of the only individuals, the members of the jury, who can furnish the answer to the question, whether beyond a reasonable doubt the error made no contribution to their verdict of guilt or punishment, logically at least the State is destined to lose every single case in which non-federal “Chapman v. California” type constitutional law error or state error in the charge is found to exist by an appellate court of this State. This is a very harsh rule, but it is the rule that this Court itself has approved. Until the rule is modified or changed, it is the rule that should be invoked and applied to all non-federal “Chapman v. California” type constitutional law trial errors, and state errors in the court’s charge. This rule governs any type of error that occurs “in the proceedings below.” One court made exception to this rule concerns state error in the court’s charge, which kind of error is controlled by this Court’s decision of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985).
Rule 50(e), Rules of Appellate Procedure, governs the effect of a failure to comply with a timely request from the defendant for a statement of facts. Where a timely request has been made, and the court reporter has lost his or her notes without fault on the part of the defendant, the “appellant is entitled to a new trial unless the parties agree on a statement of facts.” Given the wording of the rule, which is also another harshly written rule of appellate procedure, I am confident that there is not a criminal defense attorney in this State who would ever agree to a proposed state*598ment of facts, no matter how accurate same might be. See also post.
In this instance, I especially dissent to the majority opinion’s holding that, notwithstanding that the record on appeal in this cause is incomplete, appellant is not entitled to a new trial under this Court’s decision of Dunn v. State, 738 S.W.2d 212 (Tex.Cr.App.1987), which held that once an appellant shows that he had timely and properly requested the court reporter to take notes of the trial, or any part thereof, no matter how insignificant the notes might be to resolving issues on appeal, if, through no fault of his, the court reporter fails to transcribe the notes, he is entitled to a new trial. I also especially dissent to the majority opinion’s holding that although the trial judge at the guilt stage of the trial erred in admitting into evidence over objection testimony that related to two extraneous offenses, under Rule 81(b)(2), such error was harmless to appellant.
As to the missing transcript, the majority opinion attempts to distinguish Dunn on the following basis: “In the cases cited in Dunn, id., the missing portions of the record were either the entire statement of facts, the final argument, or an essential portion of the trial. In the case at bar, the missing portion of the record is a transcription of the notes of a pretrial hearing that are not essential or even applicable to a resolution of this appeal.” (Page 575 of majority opinion.) The majority opinion also attempts to distinguish Dunn on the basis that because the trial judge “transcribed” what he remembered occurring at the hearing, his supplemental transcript cured any error of omission.
With one exception, Fine v. State, 68 S.W.2d 192 (Tex.Cr.App.1934), every single case that the majority opinion cites and discusses to support its second conclusion should easily make it clear to almost anyone that those cases involved the situation where this Court approved the substitution of an original court document, such as an information or an indictment, with an exact copy of that document. Authority for doing this was former Art. 44.11, V.A.C. C.P. Now see Rule 50(e), Rules of Appellate Procedure. Thus, given this Court’s past interpretation of former Art. 40.09(7), Y.A.C.C.P., the majority opinion’s reliance on that statute, to hold that the act of the trial judge in this cause, in creating, not an exact copy of the transcription, but a transcription of what he remembered from the hearing, amounted to nothing less than substituting his transcription for the transcription of the original notes that do not now exist.
It is true that this Court held in Fine that it was permissible for the trial court to hold a hearing on just exactly what the jury was instructed, i.e., what the trial court’s charge to the jury actually stated, and that the trial judge could resolve any conflicts in the testimony. A newly “created” copy of the charge that the trial judge had given was then included in the record on appeal. This Court rejected the defendant’s contention that it was necessary for the substituted charge to be in the exact language of the lost charge, and held: “We think the law requires no more than that the charge be substantially the same as the instruction shown to be lost.” (My emphasis.) However, my research to date has not revealed a single case of this Court that has reaffirmed its holding in Fine. Thus, Fine, if not strictly limited, appears to be an aberration in our law.
Assuming, however, that Fine is “good” law, as to reconstruction of a jury charge, it will not support the majority opinion’s holding that a trial judge is permitted to transcribe what he remembers occurring, and then substitute same as a copy of a court reporter’s lost notes. In this instance, appellant did not agree to the trial judge’s transcription. If the majority opinion’s holding was logical, which it is not, then we could dispense with court reporters transcribing statements of facts and just turn that task over to our trial judges and let them put in statement of facts form whatever they remembered occurring in the proceedings below. This Court, however, has never approved such a holding.
In fact, implicit in what this Court held in Bradley v. State, 564 S.W.2d 727, 732-734 *599(Tex.Cr.App.1978), is the holding that if the appellant who has timely requested a statement of facts will not agree to an agreed statement of facts, and the court reporter’s notes have been forever lost, the appellant must be granted a new trial. And that is the principle of law that I thought this Court reaffirmed in Bunn, which has been such solid authority that this Court within the last year reversed a death penalty case in a per curiam unpublished opinion because a complete transcription of the court reporter’s notes could not be had because the court reporter lost his notes in that cause. See Richardson v. State, 752 S.W.2d 579 (Tex.Cr.App.1988).
I say to the majority: There is only one way to get around Dunn, and that is to expressly overrule it. Attempting to explain it away or to haphazardly distinguish it, or to even engraft exceptions on it, will simply not get the job done.
Today, an exception is created for an obviously negligent court reporter who was not the regular court reporter assigned to the trial court. What will be the next exception that this Court will create for another negligent court reporter who cannot keep track of his or her notes? However, just because there might be a few court reporters out there who are negligent by not keeping track of their notes should not cause or justify this Court in this cause to create an exception to the rule laid down in Dunn.
Although Dunn provides a rather harsh remedy for the negligent act of a court reporter, by losing his or her notes, I believe that by creating an exception to Dunn, as the majority opinion does, we reward rather than punish the negligent act of the court reporter that occurred in this cause. I will, of course, continue to have faith that, with few exceptions, court reporters of this State who report criminal cases will continue to perform in accordance with the high standards of that very necessary and noble profession. I believe that this Court does a disservice to those hardworking and conscientious court reporters who do not lose their notes by excusing the negligent acts of those few court reporters who exist within that group. We should not create an exception to a good rule just so a few negligent court reporters will be excused for their negligence, which is what I find that the majority opinion actually does in this cause.
I further dissent to the majority opinion’s holding that although the trial judge erred in admitting into evidence over objection at the guilt stage of the trial two extraneous offenses, such error was harmless under Rule 81(b)(2), Rules of Appellate Procedure.
If one carefully reads what the majority opinion states about how it interprets and applies Rule 81(b)(2), he should easily conclude as I have that the majority opinion’s “bottom line holding” is simply that the errors that occurred would not have affected its author and those who join his opinion — had they served on this jury. But they cannot conclusively say, beyond a reasonable doubt, that the errors did not have any impact on all of the jurors who served on this jury. As previously pointed out, strange as it may sound, the only individuals who can furnish us with the answer are not permitted to inform us whether the errors made no contribution to their decision finding appellant guilty or in answering the special issues submitted to them at the punishment stage of the trial. Those individuals are the members of the jury. Because I am unable to agree that either the State or this Court’s majority opinion has established beyond a reasonable doubt that the errors made no contribution to the jury’s verdict of guilt in this cause, or that same did not contribute to the jury’s answering the submitted special issues in the affirmative, my vote is to reverse this conviction on this point as well as the above point. Also see the cases collated in Vol. 18, Texas Criminal Digest, under Criminal Law Key No. 1169.11, and the dissenting opinions that I filed in Black v. State, 723 S.W.2d 674 (Tex.Cr.App.1986), and Beathard v. State, 767 S.W.2d 423 (Tex.Cr.App.1989).
To the majority opinion’s contrary holdings, I am compelled to dissent.