CHARLES RAY RUNNELS,FROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE. GRAYSO

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00894-CR
CHARLES RAY RUNNELS,FROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS,
 
        APPELLEE. GRAYSON COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, THOMAS AND OVARD
OPINION BY JUSTICE McCLUNG
JUNE 20, 1989
        Charles Ray Runnels was convicted by a jury of the offense of capital murder. The jury answered the second special issue, whether there was a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society, in the negative; accordingly, appellant's punishment was assessed at life. TEX. CODE CRIM. PROC. ANN. art. 37.071(e) (Vernon Supp. 1989). Appellant claims on appeal that he was denied effective assistance of counsel. We overrule appellant's point of error and affirm the judgment of the trial court.
        Our review of appellant's claim of ineffective assistance of counsel is controlled by the standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by this State in Hernandez v. State, 727 S.W.2d 53, 57 (Tex. Crim. App. 1986). Appellant must first demonstrate that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Appellant must then show that but for counsel's errors, the result of the proceeding would likely have been different. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55.
        Appellant's trial took place in 1980. After he was convicted, appellate counsel was appointed. Appellant's conviction was affirmed in an unpublished opinion. Subsequently, appellant filed an application for writ of habeas corpus claiming that he was denied effective assistance of counsel on appeal because counsel failed to file a brief. The allegations in appellant's petition were not contested by counsel. On February 24, 1988, the court of criminal appeals ordered that appellant be granted an out-of-time appeal, and directed that appellant be returned "to the point at which he can give written notice of appeal." Appellant now claims that the statement of facts does not contain a transcription of voir dire and that original counsel was ineffective for failing to ensure that voir dire was included in the appellate record.
        Courts are generally reluctant to find that an appellant is entitled to relief based on ineffectiveness of counsel solely because of counsel's failure to obtain a statement of facts of a portion of trial. See, e.g., McClendon v. State, 643 S.W.2d 936, 939 (Tex. Crim. App. [Panel Op.] 1982); Smith v. State, 751 S.W.2d 902, 908 (Tex. App.-- Houston [14th Dist.] 1988, no pet.); Gonzalez v. State, 732 S.W.2d 67, 68 (Tex. App.-- Houston [1st Dist.] 1987, no pet.). In order to be entitled to relief, an appellant must also show harm. McClendon, 643 S.W.2d at 939.
        In the present cause, appellant claims that he had a right to have the voir dire contained in the statement of facts. He says that if voir dire had been transcribed, he may have been able to raise error on appeal as to the State's exercise of peremptory challenges. See Batson v. Kentucky, 476 U.S. 79 (1986). However, we note that the statement of facts recites that no objections were voiced to the formation and selection of the jury. As a result, we question whether any challenge such as that hypothesized by appellant was preserved. See Henry v. State, 729 S.W.2d 732, 736 (Tex. Crim. App. 1987). Furthermore, we cannot speculate as to what may have occurred during voir dire. See Gonzales, 732 S.W.2d at 68. As a result, we cannot conclude that appellant was harmed by the failure to include voir dire in the statement of facts.
        More to the point, we see no evidence in the record that appellant has ever requested, since his application for writ of habeas corpus was granted, that a statement of facts from voir dire be provided; further, appellant makes no such assertion in his brief. We are aware that a court reporter has a duty to retain his or her notes for only three years from the date on which they were taken. TEX. GOV'T CODE ANN. § 52.046(a)(4)(Vernon Supp. 1989). However, this does not mean that the court reporter no longer has his notes. It is axiomatic that when a portion of the statement of facts is missing, an appellant must show due diligence in obtaining the statement of facts in order to be entitled to relief. Timmons v. State, 586 S.W.2d 509, 512 (Tex. Crim. App. 1979). Without some showing of due diligence in attempting to obtain a statement of facts at this time, we decline to say that but for the omissions of original appellate counsel, the outcome of this appeal would likely have been different.
        To summarize, the record does not reflect that appellant is entitled to relief on the basis that his original appellate counsel was ineffective. Appellant's point of error is overruled.
        The judgment of the trial court is affirmed.
 
                                                  
                                                  PAT McCLUNG
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00894.F
 
 
File Date[01-02-89]
File Name[880894F]