I was wondering if others are seeing a flood of partial records. I'd guess that 35 percent of my records now have something missing. Most often it's voir dire. The one I'm working on now is missing voir dire, jury argument, and the punishment phase (and maybe more).

It seems like Rowell, 66 S.W.3d 279 (tca 2001) invites this type of record. We need to start a movement to change the Traps. I say bring back our much loved Rule 50(d). We shouldn't be expected to spend any time trying to figure out what a defense attorney has left out of the appellate record !

One of the things that annoys me about the demise of 50(d) is I have less to throw at claims that are simply unfounded in the record. Use to be, we could argue that 50(d) said they lose. I say the same thing now, but my authority is "because I say so." Plus, by the time we get assigned to cases, after the defense brief is filed, our deadlines are looming and we have little time to supplement the record with the really bad stuff the defense left out.

[This message was edited by John Rolater on 06-04-02 at .]

I agree. The change in the rules has made defense attorneys lazy.

But fear not. The rules say that we can ask for a supplement and that the defendant has to pay for it. Frankly, if it is an indigent defendant, I don't care whose line item they charge it to.

Once again, prosecutors must remain diligent in asking for the entire record. You never know where the nugget will appear. Sometimes, the answer to a point of error is resolved in the strangest places.

I also agree that we should ask the Court of Criminal Appeals to return the burden of providing a complete record to the defendant.

John Bradley
District Attorney
Williamson County, Texas

Luckily, this forum lets me fix my mistakes that John Bradley catches if I try within something like 24 hours!

As the division budget wonk, line items are a cross I have to bear, but a little artful drafting and paper shuffling on our part will spare us this one. Plus, we can probably even save the county a little money now that I think about it.

Thanks, JB, for pointing out that the rule requires the defendant to pay for supplements under this rule.

[This message was edited by John Rolater on 06-04-02 at .]

First, it seems to only be defendants who have to pay for the record who don't want it all. Also, we can't always stick them with the bill for a supplemental record. Under 34.6(c)(3), if the trial court finds that the additional material was not necessary, the party that asked for it has to pay.
I haven't a clue whether some part of a trial I had nothing to do is necessary. And, by the time this becomes an issue, our trial attorneys have little memory of it.
In the case I'm currently working on, I'd guess that about 200 pages of record are missing -- it wounldn't be cheap to order on the tiny chance that something helpful can be found.

Good points, David. While you can make educated guesses that another portion of the record is necessary based upon the defendant's claims in the brief, can the trial court find it uneccesary when the record's transcribed contents don't actually help? Plus, once you see the points in his brief, you are really short on time to get more record.

Still, if faced with this situation I will state in my designation letter that the record is necessary in determining the merits of claim X in the brief and give the court reporter notice to bill the defendant under this rule. This is important to us, even in cases where the defendant is indigent, because our court reporters (last time I checked) are not treating the State as indigent. The difference between $4.50 and $2.50 a page is pretty big if you're talking about a couple hundred pages. The way our main court submits cases, I'll probably send a separate notice to the coa clerk that the record in incomplete and attach a copy of my designation letter to the notice. That way, I might actually get the time to receive the record and use it in the brief. The courts are in such a time crunch nowadays, though, that will not be generous. I think at least one court is encouraging or requiring counsel to investigate the completeness of the record in its orders on extension motions.

The entire record should be necessary in every case to conduct a review for harmless error (which always includes a review of the entire case). It also may show procedural default.

I realize the appellate courts are pushing us, but we should be refusing to prepare and file a reply brief without first looking at the entire record.

John Bradley
District Attorney
Williamson County, Texas

I'd agree that you need all testimony and arguments, but voir dire is usually useful to me for harmless error only when I have a jury charge claim or ineffective assistance claim, e.g. to show that the law was explained to the jury, that a defense was not discussed in voir dire, or to show that defense counsel was representing his client.

Still, I'd certain prefer a complete record from all jury trials and a rule that said the defense has to support their claims with the record.

We get alot of records without voir dire because a few court reports just won't transcribe it unless ordered to do so by their judge or the coa--"but John, there weren't any objections during voir dire." I hate it when they say that. Still, I've successfully briefed quite a few trials without a record of voir dire.

Rowell includes the following statement: "the appellant once bore the burden of presenting a record that demonstrated error, but the rule that so burdened him was revised in 1997". In my opinion this is misleading. While the rule no longer explicitly says this, no one is going to demonstrate erroneous procedure or evidence without a supporting record. I think that is the reason that part of the rule was removed. It was just deemed superfluous. Still, the 1997 amendment clearly did allow at least the occurrence of error to be shown by a partial record. And Rowell again seems to imply that a complete record is no longer necessary for the court to determine harm. Clearly there are no longer any presumptions arising from missing portions of the proceedings. My question is, if a defense attorney has purposely omitted those parts of the record which would show the error was cured or harmless has he not violated some disciplinary rules (e.g. 3.01, 3.02, 3.03 and 3.04)? I suppose the new rule may cost the State an occasional loss where we could have convinced the court the error was harmless, but in general I would think Rowell and Rule 34 make more sense than the old rules and avoid a lot of waste. I doubt we would ever be able to convince the court to change back anyway. Now, I realize that I have the luxury of being more familiar with my appeals earlier than the true "appellate only" folks and have to deal with only one court reporter, but I would say most Rule 44 arguments can be found in proximity to where the error arose. I would say that the final arguments are essential in every case (I almost always start my reading there), and it shouldn't cost much to add them out of anybody's pocketbook (line item).

As far as the time crunch is concerned, aren't you getting the statements of issues required by Rule 34.6(c)(1)? Doesn't that help in getting any supplements? Plus can't you file a supplemental brief after the supplemental record is filed? If the courts are interpreting Rule 38.7 too restrictively, then it may need to be changed. I note some Local Rules (e.g. Rule 8.4 in San Antonio) may make this more difficult. Compare Rule 38.2(c) in El Paso and Rule 13(e) in Waco. In my experience the courts are happy to accept supplemental records (so long as they do not contain material not properly considered part of the record in the trial court) and the "anything relevant" standard of Rule 34.6(d) is not hard to meet especially since there are no set deadlines for supplementation.

[This message was edited by Martin Peterson on 06-07-02 at .]