Opinion
NO. 01-18-01035-CR
08-01-2019
CATHERINE HUNNICUTT-MCDONALD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court Brazoria County, Texas
Trial Court Case No. 82784-CR
MEMORANDUM OPINION
A jury found appellant Catherine Hunnicutt-McDonald guilty of possession of a controlled substance in an amount less than one gram 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. In her sole point of error, appellant contends that the court reporter failed to record the entire trial proceeding. We affirm as modified.
See TEX. HEALTH & SAFETY CODE § 481.115(a).
Background
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 speed and having a broken tail light. Appellant was the driver and there was a passenger in the rear passenger seat.
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).
The Jeep did not have a front passenger seat.
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.
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.
Mr. Golden, did I miss any the State had requested?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.
Prosecutor: No, Your Honor.
The Court: Mr. Morin, did I miss any the defense had requested?
Trial Counsel: No, Your Honor.
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 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. 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."
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.
Conclusion
We affirm the trial court's judgment as modified.
Russell Lloyd
Justice Panel consists of Justices Lloyd, Landau, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).