KIRKWOOD v. STATE (2025)

OPINION

In one issue, appellant D'Avion Henry Kirkwood appeals his capital murder conviction. His sole complaint—a procedural issue raised when the trial court refused his request that a certified court reporter transcribe his trial proceedings rather than a court recorder—represents the third appeal concerning this particular trial court's use of a court recorder in lieu of a certified court reporter. The Galveston Judge's ruling in this case follows her own standing local rules adopting procedures for the use of court recorders in lieu of court reporters.

Although today we ultimately rest our holding on the absence of harm from the trial court's ruling, we acknowledge the unsettled status of the law on the merits and the need for resolution of the issue to aid the bench and bar. We affirm.

I. Factual and Procedural Background

On December 16, 2021, Abraham Zapata was found dead on the side of his home in the early hours of the morning. He died of a single gunshot wound to his upper left back. Investigators discovered evidence leading them to conclude appellant was responsible for Zapata's murder and he was charged with capital murder.

Prior to the pretrial hearing in his case, Kirkwood filed a motion requesting a court reporter. Considering the motion at the pretrial hearing, the trial judge stated:

Well, I mean, the whole reason we have a certified court recorder here is because of the court reporter shortage. And this court went three months without any hearings or trials whatsoever because I could not find a court reporter. So I have Mr. Gavon Cromika here who is a certified digital recorder, and I also have a local rule that allows for digital recording.1

So as far as having a certified court reporter in the courtroom, that's going to be denied because we're a rural county, I have a local rule. I've been nothing but pleased with the recording, the digital recording. We haven't had any issues whatsoever. We've already had at least one capital murder with over 800 exhibits, and that was done fine.

So as far as having a court reporter in the courtroom, I'm relying on my local rule that provides for a digital record.

Shortly after, the judge and Kirkwood's counsel had the following exchange:

THE COURT: Are you asking for a certified court reporter to type up the record, Mr. Russell?

MR. RUSSELL: Yeah, a certified court reporter for the whole trial.

THE COURT: To type up the record or to transcribe the record?

MR. RUSSELL: No, not just to transcribe the record, Judge. I mean, to actually stenographically –

THE COURT: Okay.

MR. RUSSELL: – to transcribe the trial.

THE COURT: All right. Well, I've already ruled on that.

MR. RUSSELL: Right. I understand.

THE COURT: So my next question is, are you asking for a certified court reporter to type up the transcript if your Defendant is found guilty?

MR. RUSSELL: I don't – I think my motion just deals with – it doesn't deal with transcribing it by a certified court reporter. I think it's – my motion is tailored to have one during the trial. But if – I mean –

THE COURT: I can't find one. I was unable to hire one.

MR. RUSSELL: No, I understand that.

THE COURT: There's a shortage, we're a rural county.

MR. RUSSELL: But as far as having a court reporter transcribe it at – in the event that there is a guilty verdict, I don't know. I wasn't asking for that. I would have to think about that, I guess for a little while.

․

THE COURT: And then if you want to urge that to the Court, we can certainly go that way.

Consistent with the trial court's ruling, the trial proceeded without a stenographer but was recorded in its entirety with a court recorder.

After deliberating, the jury found appellant guilty as charged. The trial court entered judgment on the verdict and sentenced appellant to confinement for life.

II. Issues and Analysis

Appellant contends the trial court's denial of his request for a court reporter was an error for which no showing of harm is required. We first consider the landscape of our state law that makes the issue a knotty one. Then, we briefly address the contention that such error, presuming it is error, would be “structural.” Rejecting that contention, we conclude our discussion, still presuming error, by addressing the question of harm.

The right to have one's trial transcribed by a court reporter (instead of a court recorder)?

For those those not familiar with court recorders or when they came to be used in Texas, the Criminal Court of Appeals in Ex Parte Hollowell provided some background in a discussion about Texas Rule of Appellate Procedure 13:

Under an older version of Rule of Appellate Procedure 11, stenographic court reporters were required when memorializing court proceedings. On January 21, 1986, this Court, in an effort “to determine if significant reductions can be made in the time required for appellate procedures and in the cost thereof,” began “a pilot project to study the use of an electronic recording system, to commence as soon as practicable after January 2, 1986 and to continue until further orders of this Court.” In that order, the Court allowed the district courts of Dallas County to proceed without a stenographic record in criminal matters, provided that the parties stipulated, in writing, to an electronic record in both the trial court and on appeal. Similar orders were entered for Brazos County on October 9, 1989, and for Montgomery County on December 10, 1990.

The pilot project was apparently a success; the two high courts added “and Court Recorders” to the rule that sets out the duties of court reporters, now Rule 13, effective September 1, 1997. In the years since the new Rule 13 went into effect, this Court has been asked by a number of counties to grant authority for electronic recording of court proceedings, and we have done so. However, we recognize that such a request is not necessary, as whatever authority we may grant for electronic recording is already granted to all counties pursuant to the Rules of Appellate Procedure. All district courts may use court reporters or court recorders, at the discretion of the district judge, to memorialize court proceedings, and such recordings may be used by an appellate court during its review as long as the recording conforms to the dictates of Rule 13.

Ex Parte Hollowell, 392 S.W.3d 661 –662 (Tex. Crim. App. 2013). The trial court's local rules as well as its denial of appellant's request appear to be supported by Ex Parte Hollowell and Rule 13.1. But the status of the law concerning the use of court recorders as an equal alternative to court reporters remains unclear. Even this court has been reluctant to regard the two as equal options for the presiding trial judge.² The laws and court rules of the state do not provide a uniform meaning of “court recorder” and no rule explicitly addresses the question at hand—Can a trial court opt to use a court reporter over a party's objection?

On the one hand, through its rulemaking authority, the Supreme Court has created rules that implicitly authorize the use of court recorders as a trial-record-memorializing alternative to court reporters. Tex. R. App. P. 13.1, 13.2, 34.6, & 38.5. The Texas Rules of Appellate Procedure define the duties of court recorders,³ and describe the manner the electronic record is prepared and included in the appellate record.⁴ These rules could appear to grant trial judges an equal, unfettered, option to use either method.⁵

However, the Government Code does not give favorable or equal mention of court reporters. The Government Code requires that each judge of a court of record appoint an official court reporter—certified in some method of shorthand reporting, who “on request” is required to appear and record hearings; it does not similarly require the appointment of a court recorder, official or otherwise. The Government Code also defines the certification requirements and duties for court reporters; but not for court recorders.

If you want to find some mention of court recorders in the Government Code, prepare to be underwhelmed and perplexed. Sub-section (e) of section 154.101 of the Government Code, which pertains to Certification of Reporters, states:

(e) A person may not assume or use the title or designation “court recorder,” “court reporter,” or “shorthand reporter,” or any abbreviation, title, designation, words, letters, sign, card, or device tending to indicate that the person is a court reporter or shorthand reporter, unless the person is certified as a shorthand reporter or provisional court reporter by the supreme court. Nothing in this subsection shall be construed to either sanction or prohibit the use of electronic court recording equipment operated according to rules adopted or approved by the supreme court.

The first sentence of the subsection provides rare mention of “court recorder” in the Government Code but at best conflates that title with “court reporter.” The last sentence appears to acknowledge “electronic court recording equipment”—used by court recorders and mentioned in the Texas Rules of Appellate Procedure, but is nothing short of standoffish with respect to that practice.

While the Galveston Court's practice and local rules are our problem today, the issue raised is not merely local—it is a statewide concern that would be best resolved by the high courts of the state and our legislature. Because we have another outlet for resolving this case, we presume the court erred when it denied appellant's request.

Any error was not “structural” and did not affect appellant's substantial rights

Appellant does not complain of any harm or refer to any deficiency in the record produced and does not complain that the court recorder lacked certification, but rather argues that the error of refusing a court reporter defies a harm analysis. He relies on the Criminal Court of Appeals’ 1984 case, Soto v. State, for its proposition that “any refusal to furnish a court reporter is per se prejudicial,” and that “the defendant need not show harm.” 671 S.W. 2d 43, 45-46 (Tex. Crim. App. 1984) quoting Cartwright v. State, 527 S.W.2d 535 (Tex. Crim. App. 1975). However, as our sister court recently observed when addressing the same argument (concerning an appeal from the same Galveston judge's practice), the legal landscape for finding such structural error has changed and the facts at hand are materially distinguishable. Alvarado v. State, No. 01-23-00339-CR, 2025 WL 1436579, at *3 (Tex. App.—Houston [1st Dist.] May 20, 2025, pet. filed). Soto occurred before the supreme court's rules (or any pilot program was implemented) pertaining to the use of court recorders. Thus, in Soto, when the trial court ordered the county clerk to tape record the trial proceedings when the court reporter was unavailable, it did so without any supporting authority. Soto v. State, 671 S.W. 2d at 44-46. Since then, the Texas Rules of Appellate Procedure were created, which provide trial judges a legal basis for using court recorders. See, e.g., Tex. R. App. P. 13.1.

More importantly, since Soto and Cartwright, the scope of what constitutes structural error has diminished. Lake v. State, 532 S.W.3d 408, 411 (Tex. Crim. App. 2017) (affirming its holding in Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), that all errors are subject to a harm analysis, with the limited exception of certain federal constitutional errors labeled by the United States Supreme Court as “structural”); see also Alvarado v. State, 2025 WL 1436579, at *3-4 (explaining the history of cases, including Cain, that followed and limited the holdings in Soto and Cartwright). Appellant's complained-of error is not constitutional, and not one labeled as a “structural” error by the United States Supreme Court; the complaint relates to a purported violation of a state statute. Alvarado v. State, 2025 WL 1436579, at *3; see also Segovia v. State, 543 S.W.3d 497, 502 (Tex. App.—Houston [14th Dist.] 2018, no pet.). For the reasons provided herein and as set out by our sister court in Alvarado, we conclude the error not to be structural error, and therefore subject to a Rule 44.2(b) harm analysis. Alvarado v. State, 2025 WL 1436579, at *3

The court recorder's record has been presented to our court in the manner prescribed by the Texas Rules of Appellate Procedure, and appellant points to no deficiencies. Having found no deficiencies upon our own review, we decline to find that the court's denial of a court reporter affected appellant's substantial rights. Id.; Tex. R. App. P. 44.2(b).

Appellant's sole issue is overruled.

III. Conclusion

Having overruled appellant's sole issue, we affirm the judgment and conviction.

FOOTNOTES

1.   The local rule in fact sets out the result here, and states: “No stenographic record shall be required of any proceedings that are electronically recorded.” Local Court Rule 2, “Rules Governing the Procedure for Making a Record of Civil and Criminal Court Proceedings in the 212th Judicial District of Galveston County Texas by Electronic Recording”, available at https://www.galvestoncountytx.gov/home/showpublisheddocument/15328/638053113335130000.

2.   Last year, in the dicta of a footnote appearing in an unpublished opinion, we construed the applicable rules (and Ex Parte Hollowell) to implicitly limit the discretion of the trial judge by a party's “specific request or objection.” Moran-Hidalgo v. State, No. 14-23-00322-CR, 2024 WL 5053192, at *1, fn. 1 (Tex. App.—Houston [14th Dist.] Dec. 10, 2024, no pet.) (“Absent a specific request or objection by a party, the Texas Rules of Appellate Procedure allow for the use of a court recorder and provide duties and guidelines for court recorders. See Tex. R. App. P. 13.1, .2; see also Ex Parte Hollowell, 392 S.W.3d 661, 662 (Tex. Crim. App. 2013) (“All district courts may use court reporters or court recorders, at the discretion of the district judge, to memorialize court proceedings, and such recordings may be used by an appellate court during its review as long as the recording conforms to the dictates of Rule 13.”). The rules further provide for the inclusion of a court recorder's record into the appellate record. See Tex. R. App. P. 34.6(a)(2), 38.5.”).

3.   Tex. R. App. P. 13.2.

4.   Tex. R. App. P. 34.6, 38.5.

5.   See Tex. R. App. P. 13.1.

Randy Wilson, Justice