(dissenting).
The writer of the majority opinion overruling appellant’s motion for rehearing tells us, simply stated: “If I have ever said it, right or wrong, I’ll never change my mind.” And, since “the old saying: ‘The cure is worse than the disease,’ ” is now a part of the jurisprudence of this state, it is interesting to note, as the majority opinion points out, that only five cases (eight less the three reversed) would have been involved in the issue here discussed (a small price to pay for so vital a right of an accused). Further, as Judge Roberts recognized “the error” in Vines v. State, Tex.Cr.App., 479 S.W.2d 322, I too recognize the error in Taylor v. State, Tex.Cr.App., 489 S.W.2d 890, wherein I stated, by dictum, that “Said Article [Article 40.09, Section 4, V.A.C.C.P.] is not mandatory.”
Now, to the case at bar. In addition to Judge Roberts’ dissenting opinion on original submission, in which this writer joined, I will address myself further on the refusal of the trial court to order the court reporter to record questions and answers propounded to the jury during voir dire examination.
The majority, on original submission, relying on Miller v. State, Tex.Cr.App., 472 S.W.2d 269, held that the failure to comply with the mandatory requirements of Article 40.09, Sec. 4, V.A.C.C.P., is not reversible error absent a showing of harm or prejudice. In the case at bar such requirement places an undue burden on appellant’s counsel because he was not the same counsel at trial.
I submit that this court got off track in Morris v. State, Tex.Cr.App., 411 S.W.2d 730, when the mandatory provisions of Article 40.09, Sec. 4, supra, were not required. Even then, the court showed concern for noncompliance by stating: “This is by far the most serious contention made by the appellant.” Then, the court went on to permit noncompliance with the statute by stating:
“The appellant having specified no error to which the statement of facts of the voir dire examination would be relevant, and given the particular circumstances of the case, we cannot conclude that the error of the trial judge in failing to order the court reporter to record the entire voir dire examination is reversible error. An entirely different question would have been presented if the appellant had specified prejudicial error in the conduct of the voir dire examination which was not recorded by virtue of the court’s order and which he was unable to bring forward on review. In such a situation, we would be unable to appraise the alleged error, and would be called upon to reverse.”
*575Of course, in Morris there was no showing that the counsel on appeal was different than trial counsel, as is the situation in the instant case. Nevertheless, the court went on to say:
“We do not mean to imply by this opinion any approval of the trial court’s refusal to completely comply with the requirements of Article 40.09, Section 4, V.A.C.C.P., . . .”411 S.W.2d at page 735.
And now, six years later, there are trial judges that refuse to comply with the requirements of such article in spite of this court’s continuous warning. E.g., Jackson v. State, Tex.Cr.App., 491 S.W.2d 155; Taylor v. State, Tex.Cr.App., 489 S.W.2d 890; Young v. State, Tex.Cr.App., 488 S.W.2d 92; Vines v. State, Tex.Cr.App., 479 S.W.2d 322; Miller v. State, supra; McClain v. State, Tex.Cr.App., 432 S.W.2d 73; Evans v. State, Tex.Cr.App., 430 S.W.2d 502; Williams v. State, Tex.Cr.App., 418 S.W.2d 837.
It is difficult for this writer to understand why the majority refuse to enforce this mandatory statute or, at least, if they do not agree with the application thereof, call it to the attention of the legislature. Such procedure has been utilized when other troublesome statutes have concerned the court. See, e.g., Beaty v. State, Tex.Cr.App., 466 S.W.2d 284; Rangel v. State, Tex.Cr.App., 464 S.W.2d 858; Elder v. State, Tex.Cr.App., 462 S.W.2d 6.
In Elder v. State, supra, this court, speaking through Presiding Judge Onion, stated:
“The statute in question expresses its purpose in plain and unambiguous language and its meaning is clear and obvious. If its application brings about an unseeming result in cases such as the one at bar, this, then, is a matter addressed to the sound discretion of the legislature. It is not the function of this court to set aside the clear intent of the legislature and by our opinions redraft this statute to suit members of this court.”
Also, it is difficult for this writer to understand why this court requires strict compliance with the other parts of this mandatory statute but refuses to do so on the isolated part of the first sentence thereunder, to-wit: “ . . . including voir dire examinations . . . . ” The first sentence of the Article (40.09, Sec. 4, V.A.C.C.P.) reads:
“At the request of either party the court reporter shall take shorthand notes of the trial proceedings, including voir dire examination, objections to the court’s charge, and final arguments.”
If the same is mandatory as to trial proceedings,1 objections to the court’s charge,2 and final arguments,3 then why not voir dire examination?
In Moore v. State, Tex.Cr.App., 363 S. W.2d 477,4 the defendant requested the court to require the court reporter to take the final arguments and this court wrote:
“It is undisputed that appellant’s requests were timely and properly made, that the official court reporter refused to observe the mandatory provisions of the statute, and that the judge refused to require her to comply with it.
*576It is concluded that the appellant complied with the statute and has been deprived of a right expressly given him by the statute and under the record here presented it calls for a reversal.” (Emphasis supplied.)
Compliance with the statute is not difficult. The transcription is of crucial importance to an appellant and to this court for meaningful review.
The clear intent of the legislature should not be set aside to suit members of this court.
I vigorously dissent.
. Cf. Parker v. State, Tex.Cr.App., 397 S.W.2d 853; Hartgraves v. State, Tex.Cr.App., 374 S.W.2d 888; Pierson v. State, 147 Tex.Cr.R. 15, 177 S.W.2d 975; Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081.
. Cf. Article 36.14, V.A.C.C.P.; Taylor v. State, Tex.Cr.App., 489 S.W.2d 890; Jones v. State, Tex.Cr.App., 481 S.W.2d 833; Woods v. State, Tex.Cr.App., 479 S.W.2d 952.
. Moore v. State, Tex.Cr.App., 363 S.W.2d 477.
. The majority’s assertion that Moore was “clearly distinguished” in Morris is a distinction without a difference. Aren’t we just allowing an accused a vital right at one end of the trial and denying it at the other end?