(dissenting).
Appellant contends that the court erred in refusing his request that the court reporter take shorthand notes of the voir dire examination.
The record reflects that appellant, prior to trial, requested the court in writing to order the court reporter to record the questions and answers propounded to the jury during voir dire examination.
Appellant relies on Article 40.09, Sec. 4, V.A.C.C.P., the pertinent portion of which provides: “At the request of either party the court reporter shall take shorthand notes of all trial proceedings including voir dire examination. . . .” (Emphasis added.)
While the statute makes it mandatory for the court reporter to take shorthand notes of the voir dire examination, upon the request of either party, this Court has held the failure to comply with such request is not reversible error absent a showing of harm or prejudice, Miller v. State, Tex.Cr.App., 472 S.W.2d 269, or where action occurring during the voir dire examination is alleged to be error. Vines v. State, Tex.Cr.App., 479 S.W.2d 322; Young v. State, Tex.Cr.App., 488 S.W.2d 92, 94.
This Court has urged trial judges to have the court reporter take all the proceedings of trial. In Miller v. State, supra, this Court said, “We do not mean to imply that we approve the action of the trial court in refusing to comply with Art. 40.09, Sec. 4, V.A.C.C.P. The rule should be followed.” In the recent cases of Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.1973) and Jackson v. State, 491 S.W.2d 155 (Tex.Cr.App.1973), this Court urged trial judges, even in the absence of a request to do so, to have the court reporter record all the proceedings unless the same is waived.
The rule set forth in Vines v. State, supra, that a refusal of a request to have the court reporter to record the voir dire is not error unless action occurring during voir *570dire examination is claimed as error in effect places no additional burden on appellant. It does not require resourceful counsel to allege that error occurred during voir dire examination. The appellate court is placed in the positoin of holding that reversible error occurred merely because an appellant makes such an allegation. In Vines v. State, supra, the problem which arises when the voir dire examination is not taken or where only a portion of same is recorded is brought into focus. In the Vines case, the questions which were objected to on voir dire had been recorded, but the court noted that this did not render the court’s error harmless since the propriety of refusing to permit a defendant to ask a particular question on voir dire examination of prospective jurors must often be based upon the relation of the question to the entire voir dire examination. The rule announced in Vines enables a defendant to make a “tongue in cheek” request that the voir dire examination be recorded, hoping that the trial court will deny such request and, thus, open the door for reversal on appeal by merely claiming that error occurred during voir dire examination.
The statute makes it mandatory for the court reporter to record the voir dire examination upon request. The voir dire examination of the veniremen is a vital part of the trial.
A denial of a request to take same is not only a violation of the mandatory provision of Article 40.09, Sec. 4, V.A.C.C.P., which may very well result in a denial of the defendant’s right of review of his case by an appellate court, but is also an invitation for the defendant to “sand-bag” the trial court under the holding in Vines v. State, supra.1
The recording of all the proceedings in a trial affords the appellate court an opportunity to fairly review the case for the defendant and the State. Further, in the course of voir dire examination of the veniremen, the trial court is in a position to have the court reporter’s notes available to speak the truth when a dispute arises over a question asked by an attorney or an answer given by a venireman.
We should hold that the failure of the trial court to grant appellant’s request to have voir dire examination taken in violation of Article 40.09, Sec. 4, V.A.C.C.P., is reversible error, and overrule our past decisions to the contrary.
I respectfully dissent.
ODOM, J., joins in this dissent.. This same writer was spokesman for the Court in Vines v. State, supra. I recognize the error in that decision and would now have this Court adopt the more rational rule, as urged in this dissent.