Opinion
No. 05-05-01534-CR
Opinion Filed November 1, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416 th District Court, Collin County, Texas, Trial Court Cause No. 416-80437-05. Affirm.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
OPINION
Ricardo Montoya was convicted of driving while intoxicated. Punishment, enhanced by three prior convictions for the same offense, was assessed by the jury at twenty years confinement in the penitentiary and a $5,000 fine. In his sole issue on appeal, appellant asserts that his conviction should be reversed and his case remanded for a new trial because an inadequate clerk's record deprives him of the ability to assert an ineffective assistance claim based on waiver of a Batson challenge. Finding no reversible error, we affirm. Factual and Procedural Background. Appellant was indicted for felony DWI, and the case was set for a jury trial. At the conclusion of voir dire, the State exercised nine of its ten peremptory challenges. Two of the strikes exercised by the defense struck jurors that the State had also struck. Neither side asserted a Batson challenge, and a jury was impaneled. Following the jury's return of a guilty verdict, the trial court entered a judgment of conviction for DWI. After this appeal was filed, Appellant requested a supplemental clerk's record to include the jury questionnaires for those members of the panel stricken by the State. The deputy clerk certified that the questionnaires were not in the custody of the District Clerk. The crux of Appellant's argument is that he has been denied an adequate record on appeal because had the questionnaires been available, he might have been able to show that any waiver of the Batson challenge constituted ineffective assistance of counsel. We find this argument unpersuasive. The Record on Appeal. Appellant cites Walker v. State, 642 S.W.2d 189 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd) in support of his contention that he has been deprived of an adequate record on appeal. Walker, however, does not stand for the proposition that the record is inadequate if additional requested items are not included. Instead, the Walker court examined whether a judicially created statement of proceedings is an adequate substitute for transcription of the court reporter's notes. Walker, 642 S.W.2d at 191 . There is no similar or analogous issue here. Moreover, appellant provides no authority for the proposition that juror questionnaires must be among the contents of the clerk's record. The questionnaires are not among those items enumerated by the Rules of Appellate Procedure for inclusion in the record. See Tex.R.App.P. 34.5 (a). A party is only required to return the juror lists to the clerk; he is not required to return the juror information sheets. See Tex. Code Crim. Proc. Ann. Art. 35.26 (Vernon 2005); Saur v. State, 918 S.W.2d 64, 67 (Tex.App.-San Antonio 1996, no pet.). Although a party may request that additional items be included in the record or seek to have the record supplemented, the record is not necessarily inadequate if these items are not included. See Tex.R.App.P. 34.5 (b),(c). The supplementation rules cannot be used to create a new record. Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). Here, the questionnaires were never filed or introduced into evidence. Thus, the questionnaires were not simply omitted from the record, they were never part of it. Therefore, even if the questionnaires had been available to supplement the record, they would have been outside the parameters of our review. For these reasons, we decline appellant's invitation to categorize the record as deficient. Our review is confined to the record as presented in this appeal. Appellant's point of error is overruled, and the trial court's judgment is affirmed.