Opinion
No. 05-07-00581-CR
Opinion issued August 14, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No. 296-80547-06.
Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
OPINION
In this appeal from a jury conviction for one count of aggravated kidnaping and multiple counts of aggravated sexual assault of a child and indecency with a child, we must determine whether the record, which does not specify which of twenty-five jurors jointly stricken by the parties were actually stricken by the State and does not contain the juror information sheets, is inadequate. We conclude it is not and affirm the trial court's judgments. Eusebio Casas aka Lenin Aguilar/Eusebio Gonzalez-Casas was charged with three counts of aggravated sexual assault of a child, three counts of indecency with a child, and one count of aggravated kidnaping after he abducted, threatened, bound with duct tape, and sexually assaulted his housemate's fourteen year old daughter. At the conclusion of jury selection, the prosecutor and Casas's trial counsel announced they were jointly peremptorily striking twenty-five of fifty-seven prospective jurors and identified each of those jurors. Each party then peremptorily struck one additional prospective juror and the jury was seated without objection by either party. The jury found Casas guilty as charged on six of the seven counts and assessed punishment ranging from five years for the aggravated kidnaping to seventy-five years for one of the aggravated sexual assaults. After this appeal was filed, Casas filed a motion requesting the clerk's record be supplemented with the "information sheets of the jurors who were voir dired." Casas, who is Hispanic, explained the jury information sheets were necessary so that he could determine if any " Batson" error occurred. The trial court granted the motion, but the clerk filed an affidavit stating she was unable to supplement the record because the sheets could not be located. Because the record does not contain the information sheets nor specify which jurors the State peremptorily struck, Casas asserts in his sole issue that he has been denied an adequate record on appeal. Casas argues, as he did in his motion to supplement the record, that the sheets would disclose the race of each stricken juror. That information, in turn, combined with the information of the specific jurors stricken by the prosecutor, would allow him to determine whether the prosecutor struck jurors based on their race and whether trial counsel's failure to object to any stricken jurors was ineffective assistance-that is, whether counsel's representation fell below an objective standard of reasonableness and a reasonable probability exists the result of the proceeding would have been different but for counsel's representation. In support of his contention that he has been deprived an adequate record on appeal, Casas cites Walker v. State, 642 S.W.2d 189 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd). In Walker, the court noted that a trial court has the duty to provide an indigent appellant with an adequate record for his appeal. Id. at 191. But the issue there was whether a judicially created statement of proceedings is an adequate substitute for transcription of the court reporter's notes, not whether the record is inadequate because additional requested items were not included and the record fails to show which jurors out of a group jointly stricken by the parties the prosecutor himself struck. Id. Casas's reliance on Walker is misplaced. That is not to say, however, that Casas is not entitled to an adequate record. He is. However, to the extent he complains of the juror information sheets, we note juror information sheets are not among the documents that must be included in the record. See Tex. R. App. P. 34.5(a). Although a party may request that additional items be included in the record or seek to have the record supplemented, it may only seek items that existed as part of the trial record but were omitted from the record on appeal. See id. 34.5(c); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Berry v. State, 995 S.W.2d 699, 702 n. 5 (Tex.Crim.App. 1999). The requested juror information sheets are not such items. Nothing in the record shows the sheets were offered into evidence or filed with the clerk. As such, we cannot conclude the record is inadequate because it does not contain them. To the extent Casas complains that the record does not specify which jurors the prosecutor struck, we see no error where the prosecutor jointly with Casas struck the twenty-five jurors. We resolve Casas's sole issue against him. We affirm the trial court judgments.
The jury did not reach a verdict on the first of the three counts of indecency, which was a lesser-included offense of one of the aggravated sexual assaults. Each of the other six counts has its own judgment.
See Batson v. Kentucky, 476 U.S. 79, 89 (1986) ("Equal Protection Clause of Fourteenth Amendment forbids peremptorily challenging prospective juror solely on account of their race").
See Strickland v. Washington, 466 U.S. 668 (1984); Mallet v. State, 65 S.W.3d 59, 62-63 (2001).