Date: 08-13-2019

Case Style:

Case Number: 01-18-01035

Judge: Russell Lloyd

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Kyle Jones
Jeri Yenne

Defendant's Attorney:

Call Kent Morlan at 888-354-4529 if you need a criminal defense lawyer in Corpus Christi, Texas.

Description:
On September 25, 2017, David Griffith, a canine officer with the Pearland
Police Department, was conducting a traffic stop on Highway 35 when a Jeep drove
by his patrol car at a high rate of speed. After he completed his traffic stop, Officer
Griffith pulled over the Jeep for failing to reduce its speed2 and having a broken tail
light. Appellant was the driver and there was a passenger in the rear passenger seat.3
Officer Griffith asked appellant for her driver’s license and proof of insurance
and learned that she was driving with a suspended license. During the exchange,
Officer Griffith noticed that appellant’s hands were shaking, and that she appeared
very nervous and was “overly apologetic” for not slowing down. He also noticed
that the backseat passenger was fumbling around with several grocery bags. Based
on these observations, Officer Griffith asked appellant to step out of the vehicle.

2 See TEX. TRANSP. CODE § 545.157(b)(1)-(2) (requiring vehicles to vacate lane closest to stationary authorized emergency vehicle or slow down to twenty miles below posted speed limit when speed limit is more than twenty-five miles per hour). 3 The Jeep did not have a front passenger seat.
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When Officer Griffith asked appellant whether there was anything illegal in
the vehicle, appellant initially replied that there was not. Appellant then stated that
there might be “a little marijuana” in the vehicle and consented to a search of the
Jeep. Officer Griffith’s canine conducted a sniff search of the vehicle and alerted on
the open passenger door. Officer Griffith searched the Jeep and discovered a small
gray pouch near the front center console that contained hearing aids and a crystalline
substance in a plastic baggie. Appellant admitted that the pouch and hearing aids
belonged to her but denied ownership of the substance. After a field test came back
positive for methamphetamine, Officer Griffith took appellant into custody. Later
testing revealed the substance to be approximately .0476 grams of
methamphetamine.
Appellant was charged with possession of a controlled substance listed in
Penalty Group 1, namely, methamphetamine, in an amount less than one gram. See
TEX. HEALTH & SAFETY CODE § 481.115(a). Appellant pleaded not guilty. Jury trial
in the case began on September 25, 2018.
Following voir dire, the trial court held a bench conference to review the
challenges for cause. The following exchange took place:
The Court: Before we bring the people in I just want to put on the record the challenges that were made for cause that I granted. If there are any that I missed let me know.

The numbers that were granted are 3, 7, 17, 18, 19, 21, 26, 32, 35, 42, 47, 49, 50, 53, 54, 56, 59, 60, 62.
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Mr. Golden, did I miss any the State had requested?

Prosecutor: No, Your Honor.

The Court: Mr. Morin, did I miss any the defense had requested?

Trial Counsel: No, Your Honor.

After both sides exercised their peremptory challenges, the trial court seated twelve
jurors. Neither side objected to the jury prior to or after the jurors were sworn.
At the conclusion of trial, the jury found appellant guilty of the charged
offense and assessed her punishment at two years’ confinement in a state jail facility.
The trial court suspended appellant’s sentence and placed her on community
supervision for a period of five years. This appeal followed.
Failure to Record Bench Conference
Appellant contends that the court reporter failed to record the entire
proceeding of her trial. She complains that although the reporter’s record includes
the trial court’s rulings on the challenges for cause, it does not include the challenges
themselves and any related requests or objections. In particular, appellant argues
that the challenges to Jurors No. 7 and No. 35 “have no recorded issues which would
support a challenge for cause within the recorded voir dire proceedings.”
Texas Rule of Appellate Procedure 13.1 provides that the official court
reporter must, “unless excused by agreement of the parties, attend court sessions and
make a full record of the proceedings.” TEX. R. APP. P. 13.1(a). Texas Government
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Code section 52.046 requires an official court reporter, on request, to attend all
sessions of court and furnish a transcript of the reported evidence or other
proceedings. TEX. GOV’T CODE § 52.046(a). The Court of Criminal Appeals has
held that a defendant must object to the court reporter’s failure to record a portion of
the trial proceedings to preserve error. Valle v. State, 109 S.W.3d 500, 508–09 (Tex.
Crim. App. 2003); see also Rodriguez v. State, 491 S.W.3d 18, 33–34 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d) (holding that defendant’s argument regarding
reporter’s failure to record bench conferences was waived on appeal where
defendant did not object at trial); Velazquez v. State, 222 S.W.3d 551, 556–57 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (concluding that defendant’s complaint
that court reporter failed to record bench conferences was not preserved for appellate
review because defendant did not object to lack of court reporter’s presence at
conferences).
Citing Tanguma v. State, 47 S.W.3d 663, 673–74 (Tex. App.—Corpus Christi
2001, pet. ref’d), appellant nevertheless contends that Rule 13.1 controls and the
court reporter was therefore required to make a full record of the proceedings absent
the parties’ waiver by agreement. However, the Court of Criminal Appeals in Valle
expressly disapproved of Tanguma. Valle, 109 S.W.3d at 508–09 (“[W]e disapprove
of Tanguma’s holding that the current rule dispenses with the requirement of an
objection to preserve error. An objection is still required.”); see also Rodriguez v.
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State, No. AP–74,399, 2006 WL 827833, at *6 (Tex. Crim. App. Mar. 29, 2006) (not
designated for publication) (“Rule 13.1 . . . does not relieve a party of its obligation
to object to preserve error.”).
Appellant did not request that the court reporter record the bench conference
or object to the reporter’s alleged failure to record it. Further, appellant did not
object when the trial court listed the challenges for cause or when the jury was
impaneled. See Ladd v. State, 3 S.W.3d 547, 562 (Tex. Crim. App. 1999) (“It is
well-settled that if [a defendant] fails to object when a venireperson is excused for
cause, he or she may not subsequently challenge that ruling on appeal.”); TEX. R.
APP. P. 33.1. Having failed to do so, she has not preserved any complaints for our
review related to seating of the jury. See Moore v. State, 999 S.W.2d 385, 398 (Tex.
Crim. App. 1999); Velazquez, 222 S.W.3d at 556–57. Accordingly, we overrule
appellant’s sole point of error.
Modification of Judgment
The record reflects that appellant pleaded not guilty to the charged offense,
the jury found appellant guilty, and the trial court suspended her two-year state jail
sentence and placed her on community supervision. However, the judgment of
conviction shows that appellant pleaded guilty and does not check the box next to
“Sentence OF CONFINEMENT Suspended, Defendant placed on community
supervision for 5 Years.”
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This Court has the power to modify the judgment of the court below to make
the record speak the truth when we have the necessary information to do so. See
TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993). Accordingly, we modify the judgment to reflect that appellant pleaded not
guilty and to indicate that the trial court suspended appellant’s sentence of
confinement and placed appellant on community supervision for a period of five
years.

Outcome: We affirm the trial court’s judgment as modified.

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