Tawater, Royce William, PD-0253-15

Royce William Tawater was tried twice after mistrials: first trial (Feb 2014) produced a conviction on unlawful possession of a firearm by a felon and mistrials on three other charges; a subsequent trial (Apr 2014) resulted in convictions for aggravated assault with a deadly weapon and deadly conduct.
Trial counsel sought access to the court reporter’s record (transcript) from the prior mistrial to prepare and for potential impeachment at the second trial; the trial court denied a continuance/request for the transcript.
Appellant (Tawater) appealed, arguing the trial court erred in denying access to the prior reporter’s record and that trial counsel was ineffective for failing to properly secure it; appellate counsel pressed those issues in consolidated appeals.
The Sixth Court of Appeals reviewed preservation and prejudice: it concluded Tawater’s oral/unverified request did not satisfy statutory requirements to preserve the complaint for appeal and compared the two trials’ transcripts to assess prejudice under Strickland.
The court held that (1) the issue was not preserved because Tawater did not file a sworn/written motion for continuance as required by statute, and (2) even assuming deficient performance, Tawater failed to show a reasonable probability the outcome would have differed if the prior transcript had been obtained.

Issue	Plaintiff's Argument (Tawater)	Defendant's Argument (State)	Held
Whether trial court erred by denying access to reporter's record from prior mistrial	Denial deprived defense of a valuable transcript for preparation and impeachment; the record was needed for effective defense	Request was not properly preserved (no sworn/written motion for continuance); alternatives (court reporter read-backs, same counsel) were available	Court: Issue not preserved under Tex. Code Crim. Proc. arts.; denial not reversible because preservation failed
Whether trial counsel was ineffective for failing to properly request the prior reporter's record	Failure to obtain transcript was deficient and prejudiced outcome because it foreclosed impeachment opportunities	Even if deficient, appellant cannot show a reasonable probability of a different result; existing cross-examination and evidence did not leave a reasonable probability of prejudice	Court: On Strickland prejudice prong, appellant failed to show reasonable probability of a different outcome; ineffective-assistance claim rejected

Britt v. North Carolina, 404 U.S. 226 (1971) (transcript of prior proceeding is required when needed for an effective defense; weigh value of transcript and availability of alternatives)
White v. State, 823 S.W.2d 296 (Tex. Crim. App. 1992) (denial of continuance to obtain transcript may be reversible where transcript is needed and State fails to rebut need; read-back by reporter can be an inadequate substitute)
Blackshear v. State, 385 S.W.3d 589 (Tex. Crim. App. 2012) (oral, unsworn motion for continuance to obtain transcript failed to preserve complaint for appeal)
Billie v. State, 605 S.W.2d 558 (Tex. Crim. App. 1980) (without a transcript, defense may be unable to identify inconsistencies for impeachment; denial can be reversible error)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance test: deficient performance and a reasonable probability of a different outcome)