Stewart v. State

¶1dissenting.

¶2I respectfully dissent to the majority’s disposition of points of error five and six. It is uncontradicted the trial judge made some comments to the jury panel while the defendant and his attorney were out of the courtroom. It is also uncontradicted those remarks were not taken down by the court reporter and consequently could not be included in the record. The majority acknowledges both of these facts.

¶3Under point of error five the majority recognizes both our holding in Weber v. State, 829 S.W.2d 394 (Tex.App.—Beaumont 1992, no pet.), and that of Miller v. State, 692 S.W.2d 88, 91 (Tex.Crim.App.1985), which tells us that “Under Article 33.03 ... an accused’s right to be present at his trial is unwaivable until such a time as the jury ‘has been selected’.” Here there is no record from which to conduct such an analysis. Therefore, I would hold that when the trial judge decided to address the jury panel instead of recessing, that address was a portion of the trial and appellant had a right to be present. To take any other position opens “Pandora’s Box”. It may be overly simplistic, but trial judges should adopt and follow this rule: Do not address the jury panel unless the defendant is present and, if you do, have the court reporter take it down.

¶4Point of error six complains that appellant has been denied a complete record on appeal. Appellant specially requested all testimony, voir dire and argument be recorded and taken down.1 I would hold the judge’s remarks were a part of the voir dire and thus were required to be taken *575down by the court reporter.2 The failure to provide a complete statement of facts for purposes of appeal is not subject to a harmless error analysis. Perez v. State, 824 S.W.2d 565 (Tex.Crim.App.1992), accord: Dunn v. State, 733 S.W.2d 212 (Tex.Crim.App.1987) and Bond v. State, 694 S.W.2d 622 (Tex.App.—Beaumont 1985, pet. ref’d). Consequently, a reversal is mandated. Remarkably, the majority finds support in Culton v. State, 852 S.W.2d 512 (Tex.Crim.App.1993). Under this authority they require appellant to furnish an affidavit from the court reporter in spite of the fact the trial judge stated, in open court and on the record, that his “history lesson” had not been taken down by the reporter. It has often been stated that the law does not require the doing of a useless act, yet the majority does. I would not. I would sustain both points of error and reverse and remand for a new trial. Because I am in the minority, I respectfully dissent.