Opinion
No. 04-06-00656-CR
Delivered and Filed: April 2, 2008. DO NOT PUBLISH.
Appealed from the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-3113, Honorable Bert Richardson, Judge Presiding. AFFIRMED.
Sitting: ALMA L. LOacute;PEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Joseph Esquivel was convicted by a jury of possession of a controlled substance with intent to deliver. The sole issue presented on appeal is whether Esquivel is entitled to a new trial because the reporter's record of an alleged hearing on a motion to suppress is lost. We affirm the trial court's judgment. An appellant is entitled to a new trial if a significant portion of the court reporter's record has been lost or destroyed and certain other conditions are met. Tex. R. App. P. 34.6. Esquivel contends that the "record in his appeal is incomplete because it lacks the reporter's record of a pre-trial hearing on [his] motion to suppress." Esquivel argues that the trial court ruled on the validity of a search warrant during that alleged pre-trial hearing, and a record of the hearing is necessary "to evaluate whether the trial court erred in failing to suppress the evidence stemming from the warrant." The record that has been filed, however, fails to establish that any such hearing was held. Although a motion to suppress was filed, the clerk's record contains no order indicating that the trial court held a hearing and ruled on the motion. In addition, the docket sheet also contains no indication that such a hearing was held. Finally, a discussion between the trial court and the attorneys at a bench conference during trial further indicates that no such hearing was held. During that discussion, the State argued that defense counsel opened the door to evidence that the officers stopped Esquivel based on a search warrant because defense counsel asked if the officer was acting on instinct in stopping Esquivel in his vehicle. The State argued that the officer was unable to fully respond to the question regarding whether he was just acting on instinct because the officer had been admonished "that the Court required us to — to approach before we got into that line of questioning as the Court had already ruled that we would not be allowed to get into the search warrant initially." The trial judge responded:
THE COURT: All right. As I see it right now, the only problem with the search warrant is that there is information regarding a confidential informant that we have not heard .
And the only reason we would have to hear that is if the State was proceeding on the state jail felony resulting in [sic] contraband that was found in the residence.
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And so the only issue that we would have to resolve on the search warrant, if we were even going to get into that evidence , is whether or not the confidential informant was present and whether you would have to reveal him because it would have some impact on the guilt or innocence of the defendant.
We are not dealing with that case. We are not going to discuss anything that was found in the house.
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THE COURT: . . . I think that the whole — the whole purpose behind staying away from the search warrant was that there is some question about the validity of that case that you have raised —
[DEFENSE COUNSEL]: Right.
THE COURT: — that we have not addressed in court —
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THE COURT: — and it goes to the drugs that were found in that house.(emphasis added). By stating that the validity of the search warrant had not been "addressed in court" and the evidence had not been heard, the record reflects that the trial court had not ruled on the validity of the search warrant at a hearing on a motion to suppress or otherwise. Although it does appear that the trial court made a preliminary ruling requiring the parties to approach the bench before discussing the search warrant, it appears that such a ruling was made during a preliminary discussion perhaps with regard to a motion in limine. The record does not reflect that Esquivel objected to the court reporter's failure to record any such discussion. See Valle v. State, 109 S.W.3d 500, 508-09 (Tex.Crim.App. 2003) (error waived if no objection is made to court reporter's failure to record). Because the record fails to establish that a hearing was held on the motion to suppress, Esquivel's complaint based on the absence of a reporter's record from such a hearing is overruled. The trial court's judgment is affirmed.