
NO. 07-08-0295-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 29, 2009
______________________________

LUDWING D. CANALES, 

                                                                                                 Appellant

v.

THE STATE OF TEXAS, 

                                                                                                 Appellee
_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2006-414,494; HON. CECIL G. PURYEAR, PRESIDING
_______________________________

Opinion
_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
          Ludwing D. Canales appeals his two convictions for aggravated assault with a
deadly weapon.  He contends, via three issues, that the trial court committed reversible
error in failing to order that a transcription be prepared of testimony admitted prior to the
granting of a mistrial and in failing to grant a continuance so that such a transcript could
be prepared.  We reverse the judgments. 
 
          Background
          On August 20, 2006, a number of persons attended a party at a townhouse in
Lubbock.  Laura Cox and Jessica Vinson lived in the area.  At some point, Kevin Baker and
Austin Starns, who were attending the party, saw Cox in her driveway apparently arguing
with appellant.  Baker observed appellant swing a golf club at Cox and strike her.  After
that, both Baker and Starns approached appellant and attempted to take the golf club from
him.  Other persons from the party also appeared and attempted to stop appellant.  This
resulted in at least one more person being struck with the golf club.  At some point,
appellant returned to his nearby residence, retrieved two large knives, began swinging
them at those present, and stabbed at least one person.    
          The State eventually indicted appellant on four counts of aggravated assault with
a deadly weapon, and two of those four counts were set for trial.  The two counts set for
trial involved appellant’s use of the golf club, as opposed to the knives, to strike others. 
During the first day of testimony, the State called five witnesses.  After the culmination of
the first day, one of the jurors suffered an injury and was unable to continue.  Because 
appellant opted not to proceed solely with the remaining eleven jurors, the trial court
declared a mistrial.  By then, appellant had already moved for a continuance and a
transcription of the first day’s testimony.  He argued that the transcription was needed for
impeachment purposes during the new trial.  The State said nothing in response, that is,
it did not attempt to show that the transcription was unnecessary or otherwise of little
import to the defense.  Nor did it attempt to show that avenues other than the provision of
a transcript were available to appellant to reach the same end. 
          The trial court summarily denied both motions, because it could not see how the
testimony that had been received could be used for impeachment purposes and because
it thought counsel should be able to recall what was said the previous day.  A new jury then
was empaneled, and it proceeded to hear testimony from the witnesses.
          Motions for Transcript and Continuance
          As previously mentioned, appellant attacks the trial court’s decision to deny him both
a continuance and a transcription of the prior testimony.  We find this troublesome because
an indigent defendant, such as appellant, has a constitutional right to a transcription of
testimony received during a prior trial if there exists a need for it and no alternatives exist
that fulfill the same function as if a transcript was available.  Britt v. North Carolina, 404
U.S. 226, 227-28, 92 S.Ct. 431, 433-34, 30 L.Ed.2d 400, 403-04 (1971) (noting that the
right arises from the Equal Protection Clause of the U.S. Constitution).  Furthermore, our
Court of Criminal Appeals acknowledged the existence of such a constitutional right in
White v. State, 823 S.W.2d 296 (Tex. Crim. App. 1992), Armour v. State, 606 S.W.2d 891
(Tex. Crim. App. 1980), and Billie v. State, 605 S.W.2d 558 (Tex. Crim. App. 1980).  More
importantly, it held in White that the defendant’s need for the transcript was and is
presumed. White v. State, 823 S.W.2d at 298.  Of course, the State may rebut the
presumption, id. at 299 (imposing upon the State the burden to show lack of need); Armour
v. State, 606 S.W.2d at 893 (holding the same), or show that acceptable alternatives exist
in lieu of providing a transcript.  Britt v. North Carolina, 404 U.S. at 230, 92 S.Ct. at 435
(noting that the defendant is not responsible for negating the existence of sufficient
alternatives).
 
          From the record before us, we see that upon the declaration of a mistrial, appellant
immediately sought a continuance and the transcript.  Furthermore, the State offered
neither proof nor argument to the trial court in effort to satisfy its burden under Britt and
Armour or to sway that court into denying the motions.
  Nor was effort made to show that
adequate alternatives to the transcript existed.  And, that the trial court believed appellant
should have been able to simply recall the testimony from the previous day does not fill the
void created by the missing transcript.  See Britt v. North Carolina, 404 U.S. at 229, 92
S.Ct. at 434 (stating that counsel is not required to have a perfect memory).  Nor does the
fact that the amount of testimony involved encompassed only one day’s worth of testimony
alone relieve the trial court from complying with the constitutional mandate.  See White v.
State, 823 S.W.2d at 299-300 (finding reversible error in failing to grant a continuance for
preparation of a transcript even though only two hours of testimony presented four days
earlier was involved).  Rather, it would seem that the quantum involved would have made
it easier to comply with the constitutional mandate.  Simply put, the less information
needing transcription means the less time and potential disruption involved.  Given these
circumstances, we cannot but hold that the trial court erred in denying appellant the
requested transcript and the time to secure it. 
          Harm 
          Our having found error normally does not automatically entitle an appellant to a
reversal.  Instead, we must also assess whether the error caused harm.  Tex. R. App. P. 
44.2(a); Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).  Yet, that is not
always true.  For instance, if the error is structural in nature, whether it resulted in harm is
immaterial.  Jordan v. State, 256 S.W.3d 286, 290 (Tex. Crim. App. 2008); Cain v. State,
947 S.W.2d at 264.  Similarly, the Texas Court of Criminal Appeals held, prior to Cain, that
harm is presumed in situations like that before us.  White v. State, 823 S.W.2d at 300.  To
date, the high court has yet to overrule White.  But see Cornish v. State, No. 04-95-0631-CR, 1996 Tex. App. Lexis 1836 at *7-9 (Tex. App.–San Antonio May 8,1996, no pet.) (not
designated for publication) (applying a harm analysis in a similar situation).  So, because
White has not been overruled, we too presume that appellant was harmed by the trial
court’s decision to withhold from him a transcript of the prior trial.  Indeed, it seems rather
unreasonable to hold otherwise.  This is so because the test used in assessing whether
the trial court erred already has within it an element of harm.  The particular element
relates to the requirement that the defendant show a need for the transcript.  If such a
need exists, then logic suggests that denying access to it or its reasonable equivalent is
harmful.  So, since need was and is presumed here given that the State failed to establish
otherwise at trial, some measure of harm must also be presumed.    
          Alternatively, if Cain does require a harm analysis, despite the holding of White, we
again conclude that reversal is justified.  As previously mentioned, the need for the
information was presumed.  Indeed, the State acknowledged in its appellate brief that there
were inconsistencies in the testimony of those who had testified before mistrial was
granted.  Thus, a transcript of that prior testimony arguably could have been used to
highlight the inconsistencies or affect the credibility of the witnesses who testified at the
later trial.  Moreover, we find disingenuous the State’s argument that because the six
witnesses involved did not see the actual assault for which appellant was convicted, the
information they imparted was of minimal worth.  If their testimony was so unimportant, one
is left to wonder why the State proffered it in the first place.  The record provides that
answer for the testimony included not only a description of the circumstances before and
after the assaults for which appellant was convicted but also multiple assaults he
committed with the golf club (including that upon victim Cox).  It also described appellant
entering his house after the golf club was taken from him, returning with large knives in
hand, “running at anybody he saw” with those knives, and eventually cutting an individual
named Mickey.  That is hardly irrelevant evidence.      
          We also note that the number of witnesses involved was not one or two, but rather
six.  Those six were slightly less than half of the fourteen the State ultimately called during
the guilt/innocence phase of the trial.  This too indicates that the testimony withheld from
appellant was more than incidental.  
          That the quantum of evidence warranting conviction was not small is also an indicia
to consider.  Yet, it alone is not determinative.  Scott v. State, 227 S.W.3d 670, 690 (Tex.
Crim. App. 2007).  Nor should it be.  Constitutional rights exist to protect not simply the
innocent.  Those guilty are entitled to partake of them as well.  Indeed, it may be those
eventually found guilty who are to benefit the most from them since their observance goes
far in assuring a lawful verdict.  So, while it may well be that a plethora of evidence
indicative of guilt appears of record, we nonetheless must take caution to avoid placing
more importance on the ends to be gained by conviction than the means by which
conviction is secured.  This is especially so here since the violation could have been easily
avoided.
          Whether the error affected the integrity of the process is what we have to ask and
answer.  Scott v. State, 227 S.W.3d at 690.  It is difficult for us to conclude here that it did
not.  Consequently, we reverse the judgments and remand the cause to the trial court.
 
                                                                           Brian Quinn 
                                                                          Chief Justice
 
Publish.
