*1 in the Penal Code deal- ically the article evidence, as far as
ing with violation, concerned, you are in direct
I’m but order this statute will take ten whole matter. We
in this up. we will start
minutes and then
Whereupon, this concludes all of the re-
quested excerpts cause.) DAVID, Appellant, Texas, Appellee.
The STATE of
No. 796-84. Criminal
En Banc.
Dec. James, Houston,
Jimmy Holmes, Jr., Atty., John B. Dist. and J. Harvey Bratton, Hudson and Elaine Asst. Attys., Houston, Huttash, Dist. Robert Austin, Atty., for the State. OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW DAVIS, Judge. TOM G. 11, 1979, appellant
On June pled nolo contendere before the court to the offense *2 767 the and abuse child. Pursuant to cess under the Fourteenth Amendment of sexual Sec.3d(a), 42.12, appeal V.A.C. on provisions of Art. effective assistance of counsel C.P., pro- (sic). the trial court deferred further the Amendment under Sixth ceedings entering adjudication without appeals did not reach The court of placed probation guilt, of Instead, that court reasoned as this issue. years. for five February pro- any al- [appellant] “We waived find adjudication guilt, ceeded of revoked original adjudication in leged defects the years. probation, and assessed ten proceedings by failing to for an move (Hous The of Fourteenth Court thirty adjudication guilt days. of ton) published opinion. affirmed in a otherwise, others To hold would enable similarly accept the benefits situated to dist.]). 1984 - Houston The [14th up periods adjudication of of deferred that, by failing held to move then, violating ten after adjudication guilt of within 30 launching an based on probation, appeal plea entering his and the trial court’s defer alleged proceedings at the defects in adjudication, ment of waived the feel, This, hearing. original we would right appeal any depriva constitutional purpose the of the deferred serve origi tions that have occurred justice adjudication law the criminal nor granted appel proceedings. We system.” petition discretionary lant’s review to 42.12, 3d(b) specifically pro- Sec. holding. examine this guilt, adjudication that: “After of vides After adjudicated the court including proceedings, of all assessment guilt ap- punishment, and assessed sentence, pronouncement punishment, of appeal pellant gave of and filed a notice probation, ap- granting defendant’s pauper’s oath. the continue as the peal appointed prosecute court counsel to had not been deferred.” The appeal and ordered court provision holding abrogates peals’ prepare a statement We the statute. disavow See Art. Sec. his holding waived peals’ V.A.C.C.P. right appeal It later discovered that court proceedings. destroyed appellant’s claim We turn now to original plea proceeding of June deprive operated to former Art. 2324 was therefore unable original plea him of those use his *3 taken during appellate record in this cause.” voir dire prospective examination of the Appellant's objection “adopts and relies on jurors, the testimony and the final purposes” for all objection State’s to argument of counsel at both the granted the record. The trial court a hear- penalty phase of the trial.” ing appellant’s objection. Nothing more Counsel filed of one, hearing, of the appears there was February 25, the record. 11, 1983, April
On the District Bearing Clerk noti- the district clerk’s file mark dat- parties fied the that the record had been 27, 1983, ed October in the completed. following signed statement: NOW, “COMES Patricia L. McCormick April On filed in the above entitled and objection numbered to the ground record on the cause, and states as follows: did not contain a “Statement of facts of the June hearing wherein the “I was the official court in the pellant pled nolo contendere.” The State 209th District Harris County, requested “that the Court withhold its Texas, on June when the de- proval complete of the record until a tran- cause, David, fendant in this scription notes is entered a [sic]. therein; contained Court di- by [appellant’s “I have been contacted Attorney Appellant rect the of record for counsel], me who has asked request an extension of time for the pertaining guilty plea. *4 added]. by proceeding failing defects Nowhere does record reflect that to move for an within pellant designated transcript State, thirty days,” v. 681 S.W.2d proceeding 1984). [14th] - Houston in the record on Not until appeal. inclusion misapprehends the lesson of That rationale the objected April, State, (Tex. McDougal any lack of a 1983 is there reference to the deferring adjudica Cr.App.1981): an order transcript plea proceeding. If 3d(a), V.A. pursuant tion § adoption C.C.P., not simply appealable is until there designa- the record can be construed as a McDou- guilt. has been transcript tion of the However, gal, supra, at 509-510. 3d(c) § designation untimely. See was appeal after an expressly authorizes an 2, supra file (appellant McDougal, et cetera. J., (Clinton, concurring). at 510 giving appeal). of notice of waiver, Finding a case, objection put the State’s posed by question reach the second did not notice that lacked a the record appellant for that court to decide. Accord From transcript of it ingly, I would remand the cause statement, the court it and decide the issue. See Lam- reach still time to obtain a (Tex. 614, 616 brecht v. S.W.2d destroy April, she did not Court does not Cr.App.1984). Because the Tyler May. Yet notes until her move to respectfully dissent.1 nothing in the record reflects obtaining a tran- any step took toward
script. lack of a reflects that de- attributable
fault, 2324, supra. Ap- to Article and not
pellant’s claim that statute “prepare porter re- statement do the statutes confine Not of facts authority appellant," the trial court view of this Court to a "decision" rendered appeals, process but also she de- months before 1983—three perceived are lighten Tyler. relevant to an issue distilled Mani- the load to them give If the to which we some deference. effects comply that order. It is festly, did not she benefit of to decline the Court is determined appellant her own deci- specious attribute to "go process it alone” in this instance very she been notes sion to there is look the reason into a reporter, of ought taken vio deprivation proceeding, and that argued peal. Appellant appeal, guaranties. constitutional lates federal Court, permitting de- that the statute accordingly, question, The threshold appeal ferred defendants is attribut the lack whether upon final their conviction statute, or to operation able (Art. 42.12, 3d(b), supra), and the stat- Sec. other cause. some permitting court ute brief, asserts (former appellate his counsel Art. their notes after three Record, V.A.C.S.1) Designation he “filed in the instant case combine a tran- among things, requesting, other deprive him of the federal Constitution’s notes.” script court equal pro- protection and due guarantees of Code, years_” Government p. See now Repealed ch. 4087. For- Acts 52.046(a)(4) sec. ch. provided part: [Acts "Each mer Art. 2324 (Vernon) See also request: ]. Serv. Reporter upon ... Tex.Sess.Law Official Court V.A.C.C.P., Filing Requirement for notes taken said Preserve all shorthand Reporter’s full Notes. for three use or reference future only reference to court notes in to the Record until a Statement of record is the following: of Facts or a prepared sworn affidavit “6. The transcript of proper specifically set- pretrial notes taken at the ting hear- out the reasons for the unavailabili- ing of matters of law raised motions ty of such notes for transcription pur- of the Defendant as well as the notes of poses can part be made a of the official
Notes
filing of such notes.” The trial court or- pertaining “I longer no have the notes dered that the record would not be guilty plea. Tyler, Tex- moved proved complete until it tran- contained as, in May, and since these notes scription notes, old, were more I de- than three attorney request them, pursuant to Article extension of time to file the notes. The V.A.C.S. requests order is dated 4-14-83. No Tyler, day “Dated at this 18th appear extension of time in the record. October, 1983.” September On the State filed a the district clerk October its to the motion withdraw parties comple- notified the the “further record. The motion states that the court tion” of the record. longer no has the notes to the 14, 1983, the On November trial court proceeding. The trial states: court’s order record, noting: approved [par- “neither Objection “The State’s to the Record will ty] having presented filed and to the court be allowed to be withdrawn and the clerk writing any objection the record with- completing continue the record.” The mailing in 15 after the order is dated 9/14/83. clerk’s] [the notice.” September filed “Objection Appellant to the Motion to the statute contends Withdraw its to the Record.” In which allows court that document their notes three has origi- him of a statement facts from the “requests hold a The record does not approval heron its and thereafter rescind support of the State’s Motion to Withdraw its that contention. 5, V.A.C.C.P., pro- protec- him of certain federal constitutional vides, pertinent part, as is without merit. tions party “If desires to or have all judgment the court of portion transcription affirmed. reporter’s notes included designate he clerk in shall so McCORMICK, J., concurs. writing required and within the time party Article. Such Section JJ., MILLER, dissent. TEAGUE have the responsibility such obtaining CLINTON, Judge, dissenting. furnishing the same correctly rejects the The Court rationale duplicate the clerk in time leading ap finding [emphasis record....” peals any alleged “waived
of facts. statement re- with an order that the to start