Ex Parte Henderson

¶1OPINION

¶2This is an appeal from an order in a habeas corpus proceeding where a reduction of bail pending appeal was sought.

¶3The dissent would hold that Article 44.34, V.A.C.C.P., requires that a transcription of the court reporter’s notes must be made a part of the record even though it is not requested by an appellant.1

¶4Article 44.34 provides:

“When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals. This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge.”

¶5Apparently the dissent would require the trial court to have such a transcription prepared even though a wealthy petitioner did not want or request it.2

¶6The cases under Article 44.34 and its predecessors have uniformly held that absent a transcription of the court reporter’s notes or a statement of facts a cause will be affirmed. See e. g. Ex parte Naill, 127 S.W. 1031 (Tex.Cr.App.1910); Ex parte Palmer, 136 Tex.Cr.R. 245, 124 S.W.2d 860 (1939); Ex parte Moore, 318 S.W.2d 667 (Tex.Cr.App.1958); and Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App.1967). There is no reason to change the rule.

¶7The implicit rationale of those cases was that the burden was on an appellant or petitioner to request such notes to be placed in the record or the right to such transcription was waived.

¶8Whether Article 44.34 is mandatory or directory, petitioner may waive compliance with the provision. Article 1.14, V.A. C.C.P., provides as follows:

“The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.”

¶9*52Even if we be wrong in the construction of Article 44.34, the rule that we follow today has been the procedure for many years. There is little chance, if any, for one to be injured or an injustice be done by the well-established rule. All one has to do to secure the transcription of the court reporter’s notes in his case is to ask for it and, if he is able to do so, pay the costs.

¶10Many court reporters are having trouble preparing records in the time prescribed by law. We will not add to that burden when there is no good reason for it.

¶11For the above reasons, the judgment is affirmed.

¶14concurring.

¶15This appeal is from an order entered in a habeas corpus proceeding refusing to lower the bail pending appeal from four felony convictions.

¶16Bail pending appeal was set at $10,000 in each case. On November 22,1977 appellant filed his application for writ of habeas corpus seeking a reduction of bail. On the same date the district court conducted a hearing on said application, and having heard the evidence presented, entered an order denying the reduction of bail. Notice of appeal was given. Subsequently the record, sans a transcription of the court reporter’s notes (statement of facts), was approved by the trial court noting that no objection was made to said record. Thus, the appellate record before us consists of a clerk’s transcript without a statement of facts and without briefs by either the appellant or the State. No contention on appeal has been advanced.

¶17It has long been held by this court in appeals from habeas corpus proceedings (including the refusal to reduce bail)1 that in the absence of a statement of facts nothing is presented for review. In accordance with such cases, this judgment in this appeal should be affirmed.

¶18It was not until the majority opinion on original submission in Ex parte Sims, 565 S.W.2d 45 (Tex.Cr.App. # 55,139,11/23/77) (now on rehearing), that there was any indication that any other result would be reached. There the majority, although the contention was not raised by either party, interpreted Article 44.34, V.A.C.C.P., as amended as requiring the clerk to prepare a complete record including the statement of facts, whether requested by the appellant or not, and without regard to whether the appellant was indigent or not. The majority held that an appellate record in a habeas corpus proceeding will call for the abatement of the appeal rather than an affirmance.

¶19It is interesting to trace the history of Article 44.34, supra, and its predecessors back to at least 1879.

¶20Article 881, V.A.C.C.P. (1879), provided:

“When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a transcript of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the court of appeals for revision. This transcript, when the proceeding takes place before a court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation the transcript may be prepared by any person under the direction of the judge and certified by such judge.”

¶21Said Article 881 became Article 916, V.A. C.C.P., in 1895 and later said Article 916 became Article 950, V.A.C.C.P., in 1911 and said Article 950 became Article 857, V.A.C. C.P., in 1925, all without change.

¶22In 1965 said Article 857 became Article 44.34, V.A.C.C.P., with minor changes. The word “review” was substituted for the last word “revision” in the first sentence, and the word “record” was substituted for" the word “transcript” elsewhere in the statute.

¶23*53In Ex parte Watson, 455 S.W.2d 300 (Tex. Cr.App.1970), it was held that Article 44.34, supra, controls the appellate procedure in habeas corpus cases rather than Article 40.-09, V.A.C.C.P., relating to appeals from convictions in criminal cases.2 It became clear from Watson that there were no time limits for sending up the appellate record in such cases. Then in 1973 Article 44.34, supra, was amended to provide for such time limitation and an additional sentence was added. Such statute now reads:

“When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen da vs after the date of the judgment. except that if good cause is shown, the time may be extended by the Court of Criminal Appeals. This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge.” Acts 1973, 63rd Leg., p. 1270, eh. 465, § 1 (1973 amendment is underlined above.)

¶24It is observed that this statute has undergone little change in almost one hundred years and has never prescribed with much detail the appellate procedure to be- followed in appeals from habeas corpus proceedings.

¶25As early as 1885 it was held that the rules governing the transmission of transcripts in. other criminal cases do not govern in habe-as corpus appeals. See Ex parte Barrier, 17 Tex.App. 585 (1885); Ex parte Kramer, 19 Tex.App. 123 (1885).3

¶26Habeas corpus appeals determined when the various statutes described above were in effect clearly established on the years that in the absence of statement of facts in appeal in habeas corpus proceedings nothing is presented for review, and it is presumed that the judgment entered in the trial court is correct. See, e. g., Ex parte Carrington, 129 Tex.Cr.R. 613, 91 S.W.2d 345 (1936); Ex parte Horn, 97 S.W.2d 698 (Tex.Cr.App.1936); Ex parte Brady, 137 Tex.Cr.R. 609, 132 S.W.2d 592 (1939); Ex parte Ambrose, 145 Tex.Cr.R. 582, 170 S.W.2d 731 (1943); Ex parte Grubman, 146 Tex.Cr.R. 500, 176 S.W.2d 335 (1943); Ex parte Canavan, 147 Tex.Cr.R. 493, 182 S.W.2d 818 (1944); Ex parte Stone, 152 Tex.Cr.R. 351, 214 S.W.2d 127 (1948); Ex parte Toalson, 252 S.W.2d 161 (Tex.Cr.App.1952); Ex parte Freed, 254 S.W.2d 792 (Tex.Cr.App.1953); Ex parte Taylor, 259 S.W.2d 222 (Tex.Cr.App.1953), cert. den., Taylor v. Moore, 350 U.S. 997, 76 S.Ct. 548, 100 L.Ed. 861; Ex parte Lewis, 263 S.W.2d 557 (Tex.Cr.App.1954); Ex parte Chapa, 287 S.W.2d 178 (Tex.Cr.App.1956); Ex parte Lawhon, 295 S.W.2d 660 (Tex.Cr.App.1956). See also Ex parte Adams, 13 S.W.2d 842 (Tex.Cr.App.1929); Ex parte Palmer, 136 Tex.Cr.R. 245, 124 S.W.2d 860 (1939); Ex parte Combs, 132 Tex.Cr.R. 500, 105 S.W.2d 1096 (1937); Ex parte Slayden, 238 S.W.2d 706 (Tex.Cr.App.1951); Ex parte Hopkins, 368 S.W.2d 223 (Tex.Cr.App.1963); Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App.1967). And see cases cited in footnote # 1.

¶27Implicit in these holdings is the requirement that it is the appellant’s duty and responsibility to secure the statement of *54facts for inclusion in the appellate record, and his failure to uphold his responsibility will be held against him. It is true that many of these decisions do not always mention the applicable statute and do not expressly spell out the responsibility of the appellant. However, each of the cases cited involved habeas corpus appeals,4 while the various statutes described above were in effect governing appeals in habeas corpus proceedings.

¶28In 58 Tex.Jur.2d, Statutes, § 192, pp. 294-298, it is written:

“Where a statute that has been construed, either by a court of last resort or by executive officers, is reenacted without any substantial change of verbiage, it will continue to receive the same construction. This settled rule applies whether the old act is merely amended or is incorporated in a revision; and it applies with particular force in the construction of a statute that has been repeatedly reenacted without change. On the other hand, the rule does not apply where substantial changes are made in the new law; and it may be doubted whether it applies where the existence and meaning of the reenacted statute are dependent on another written law.

“When a statute is reenacted without material change, it is generally presumed that the legislature knew and adopted or approved the interpretation placed on the original act, and intended that the new enactment should receive the same construction as the old one. Accordingly, the construction of the old act is regarded as a part of the new, and a different interpretation will be given only for impelling and cogent reasons.”

¶29Using this rule of statutory construction, I would interpret said Article 44.34 as it has been consistently interpreted in the past. I cannot conclude that the Legislature intended a different construction.

¶30Further, and most importantly, attention is called to Article 2324, V.A.C.S., relating to the duties of a court reporter, which provides in part:

“. . When any party to any suit reported by such reporter shall desire a transcript of the evidence in said suit, said party may apply for same by written demand, and the reporter shall make up such transcript and shall receive as compensation therefor a reasonable amount . . . .” (Acts 1975, 64th Leg., p. 826, ch. 319, § 1.) (Emphasis added.)

¶31There were the same or similar provisions in the forerunners of this statute. See Acts 1955, 54th Leg., p. 1033, ch. 390; Acts 1925, 39th Leg., p. 670, ch. 202 (Article 2238, V.A.C.S.); Acts 1911, 32nd Leg., p. 264, ch. 119 (Articles 1923, 1924, V.A.C.S.). One of these statutes was in effect when most of the cases cited above were decided and should be considered in interpreting the meaning of those decisions.

¶32I am fully aware, of course, of the current provisions of Article 11.07, V.A.C.C.P., as amended 1977 (Acts 1977, 65th Leg., p. 1974, ch. 789), dealing with the specialized procedure dealing with post-conviction ha-beas corpus proceedings in felony cases. It is provided in § 2(d) that if the convicting court decides that there are controverted, previously unresolved facts which are material to the legality of the applicant’s confinement the court may order a hearing. Said- subsection (d) then provides in part:

“. . .It shall be the duty of the reporter who is designated to transcribe a hearing held pursuant to this article to prepare a transcript within 15 days of its conclusion. After the convicting court makes findings of fact or approves the findings of the person designated to make them, the clerk of the convicting court shall immediately transmit to the Court of Criminal Appeals, under one cover, the petition, any answers filed, any motions filed, transcripts of all deposi*55tions and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues of fact.”

¶33This statute’s immediate forerunner (Acts 1973, 63rd Leg., p. 1271, ch. 465) had a similar provision as to the duty of the court reporter. However, anyone who has followed the history of former Article 119, V.A.C.C.P. 1925, until it became Article 11.-07, V.A.C.C.P. (Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722) and most importantly, the amendments that have been made to said Article 11.07 (Acts 1967, 60th Leg., p. 1734, ch. 659; Acts 1973, 63rd Leg., p. 1271, ch. 465; Acts 1977, 65th Leg., p. 1974, ch. 789), knows that the procedure set forth is an exclusive procedure (§ 3 of the Article) that is limited to post-conviction habeas corpus proceedings in felony cases where unlike other habeas corpus proceedings the writ is expressibly made returnable to the Court of Criminal Appeals.5

¶34Nothing in Article 11.07, supra, should be construed as calling for a different interpretation that has long been given Article 44.34, supra.

¶35The construction urged by the majority in Ex parte Sims would place an almost impossible duty upon the clerk of the.court to include in the appellate record of a habeas corpus matter the statement of facts regardless of whether the same has been requested or not, or whether the appellant is indigent or not, particularly when the clerk had no control, statutorily or otherwise, over the court reporter, who is an appointee of the trial court.

¶36Further many, many general habeas corpus appeals are taken for delay only and there is no interest in a statement of facts.

¶37I would affirm the judgment entered in this case.