*1 jurisdiction so, even have to do we see no
point in remanding this case to the court of
appeals “with “fully orders” to articulate” opinion reasoning another “its regarding sufficiency factual of the evidence.” judgment Appeals of the Court of is affirmed.
MEYERS, PRICE, JOHNSON HOLCOMB, JJ., dissented. AMADOR, Appellant
Justin The STATE of Texas.
No. PD-0786-06. Court of Appeals Criminal of Texas.
April trary original). example, appellant’s (Emphasis evidence. For The court nation." "proof guilt factual-sufficiency Appellant’s appeals’ brief asserts that decision not robbery greatly outweighed reweigh the evidence to reverse contrary proof, Court. See and is so weak as to conviction is conclusive on this Watson, jury’s confidence in the determi- at 412. undermine *2 Houston, Appel- Troy McKinney,
W. lant. McConnell, Asst.
Gail Kikawa District Paul, Conroe, Attorney, Matthew State’s *3 Austin, Attorney, for State.
OPINION J.,
COCHRAN, opinion delivered PRICE, WOMACK, Court, in which JJ., HOLCOMB, joined. JOHNSON and DWI. He Appellant charged with evidence. filed motion to hearing on a live judge conducted he during which appellant’s motion arresting officer’s portions viewed point, At patrol-car videotape. some the motion apparently denied for recon- motion appellant’s later denied guilty, pled then sideration. ruling on but court’s appealed the trial pretrial his motion. The court held, It ruling.1 affirmed the trial court’s present in part, appellant failed appeal because complete record on supplementa- successfully objected to videotape tion of the record with into evi- had not admitted been Therefore, court of dence. stop “assume[d] court’s the trial supports shown in court suspicion suffi- inference of reasonable arrest.”2 [appellant’s] support cient to for dis- appellant’s petition granted We consider whether cretionary review to “assuming” that erred missing videotape supported agree ruling.3 We 1) resolving there was not (Tex.App.- 1. Amador v. the claim that 2006). arrest, ap- Beaumont cause to peals considering the erred in Id. at 549. in the admitted into evidence that was not part of the and that was not grounds granted 3. We both of appellate record. review: appel- saw 2003. She 2:30 a.m. on June speculate court cannot reviewing that a freeway and followed onto the speed lant of exhibits that are not about the contents exit, turned off. next where he Be- him to the contained in the record. lights, and emergency on her position the best She' turned lot. Be- concerning parking over parties’ dispute appellant pulled to resolve the no other trooper saw speeding, what sides making ruling, we “bad driv- saw and used or indications of traffic violation ap- judgment of the court vacate ing.” to that court
peals and remand the case time, not, at that Fountain did proceedings. for further per- stopped an intoxicated think she approached But when she son. *4 I. in- license and for his driver’s and asked DWI, appellant charged After was with surance, extremely slow to re- was “[h]e evi- he filed several motions to wallet, through his He fumbled spond.” motions claimed that dence. One of those license, and was slow passing by his any sus- he was seized “without reasonable license and insurance. provide both his in criminal picion engaged that he was get out of his When she asked activity” acquisition “[t]he so, car, doing than normal in he was slower offer evidence which the Government will mumbled, real under speech and “his was pursuant in this cause was not to search up a and mumbled.” She wrote his breath warrant, exigent absent circum- was ready speeding ticket for and was warning stances, probable and made without it to him when she smelled to deliver engaged to believe the Defendant was point, she on his breath. At alcohol evidence, if activity criminal or that such intoxicat- suspicion might that he be destroyed.” any, danger being was in ques- response prosecutor’s ed. on this The trial held that, tions, based Trooper Fountain stated suppress. Appellant motion to called DPS information, I “I felt needed on Fountain, Trooper arresting Alicia offi- stan- investigate performing further cer, played portions patrol-car of her sobriety tests.” dardized field videotape challenge “prolonged” de- those tests? Q: you perform And did tention. did not have the video- ma’am, Yes, I A: did. marked, tape and he told the trial him do? Q: you tests did have What necessary report- it to have a that was not gaze nystagmus, A: Did the horizontal spoken of the words on the er’s record turn, one-leg and the the walk tape will suffice “[t]he stand. itself, Although portions of Your Honor.” tape played, was were of all of those tests Q: And on the basis never offered into evidence. performed, and how the defendant you to do? what did decide testimony during the Trooper Fountain’s for driv- placed A: I him under arrest “working that she was ra- hearing showed County ing while intoxicated. Montgomery dar” on 1-45 2) agree appellant on his first holding we Because The court of erred ground and remand this case to for review was sufficient to establish the trial record proceedings on appeals for further when the evidence probable cause to arrest appellant’s second conclusory ground, we dismiss only statement consisted ground sobriety tests.” for review. appellant “failed field appellant’s questioning press generally, The focus of on the issue of articulable ques- detain, direct examination and of the State’s suspicion to or both articulable sus- tioning was cross-examination probable picion to detain and cause to appel- Fountain’s continued detention of arrest.4 warning lant after ticket for she wrote later, appellant filed a mo- Some months speeding. and, reconsider, in presenting that tion to closing argument hearing, In his at the judge, noted that “the motion to the mentioned, time, for the first trooper on was the main issue focuses issue of cause to arrest. He investigation af- justified continuing that, arguendo stated assuming there citation.” warning He ter she had issued a suspicion appel-
was articulable to detain showed that stated that investigation, lant for further the State speech tape. “there is no mumbled you conclusory failed to show other and noSo matter There is no slow reaction. sobriety terms that he failed field tests. observed or the officer said she what They sobriety are field undescribed Thus, heard, accord- just wasn’t there.” How tests. he did on those tests was defense, citation was ing to the “Once the you. my It wasn’t bur- described given, she given, warning citation *5 All you den. It’s their burden. heard him.” detain legal right no to further HGN, that was he did-she did an a walk trooper that argued then State one-leg and turn test and a stand test. seemed respond, I You never even heard he failed them. said he was slow I think you why know didn’t hear he failed license and fumbling be for his them.... I the El Paso perceived believe Court she coupled with what they Now, Appeals decided this exact case and evening speech. with slurred sobriety tests are found when field I can’t it the video? did we hear they referenced but are not described not, quality recall we did or but if in their burden to and the State fails right ears good not as as her video is probable show cause. she per- when she said night there license, slurred with the fumbling ceived The trial took the matter under judge handing when she speech. She said appel- denied apparently consideration and him, Those smelled alcohol. them to she lant’s motion at some later time. It her detention things justify do exactly three unclear when the court ruled the cir- under upon-the sup- motion to him and are reasonable and what he ruled v. Cul- in State extremely One benefit of decision It is difficult to determine len, judge (Tex.Crim.App. was actual- this record whether 698-99 ly question 2006), asked to resolve losing party motion-to- on a is that the cause and whether he made a on that may re- in the trial Appellant in Brief to the issue. stated his findings make of fact quire the trial court to “expects that there support rul- of its and of law conclusions supplemental will Clerk’s record filed be party may also ing. prevailing Of course the denying the trial court's order contains although request findings, such supplemental suppress.” Such a the motion party’s required them at that is not to make filed, may prepared and but have been made, appel- findings are behest. such When it in our records. For the reasons set is not wondering whether a late courts are not left opinion, we cannot out in the text of this particular considered issue was simply and contents. "assume” its existence upon. and ruled remand, But, may supple- the record be mented. cumstances that night, existed that the which appellant performing showed totality of the circumstances. sobriety objected, field tests. arguing had never been Appellant responded that only “there are marked as an exhibit or intro- two prior items to her continuing the in- vestigation. duced That would into evidence the trial court. The be mumbled speech, which the Court is not bound to appel- stated that because accept because the Court heard the audio agree lant “did not request, the State’s portion. brought you I it wanted to re- [it] could not determine it, just listen to portion talking we’re [appellant’s] attorney whether showed the about, like a three-minute section. Slow- court,” entire it denied the react, ness to I don’t see there either.” State’s request.5 The trial court “I concluded: under- Trooper On issue of Fountain’s artic- stand I don’t think strong, it’s but I suspicion, ulable held think there was enough justify there to the facts that Fountain had your it.... I think arguments will be or “justified before investigation” her further will be well jury received you when appellant’s sobriety.6 into in- Those facts it, look at all of but I still think there was (1) cluded: appellant’s “difficulty in com- enough get her point.” to that plying promptly ordinary to her requests Immediately thereafter, appellant pled (2) information”; for license and insurance guilty, and the trial court sentenced him to unusually “his getting slow movement” out days jail probated year for a and a (3) car; speech”; his “mumbled fíne of $600. (4) the smell of alcohol on his breath be- Appellant raised two issues on appeal. signed fore he warning ticket.7 *6 He claimed that the trial court erred in cause, Concerning the issue of probable denying (1) his motion to suppress because the court appeals of noted that the State Trooper Fountain suspi- lacked articulable initially responded by in its brief cion to detain him after she decided give to asserting appellant challenge that “did not (2) ticket, him warning a and the State had the probable State’s evidence of cause dur- failed to show that probable she had ing suppress the motion to hearing.”8 to arrest appellant for Appellant DWI. did designate appeals rejected not The court of the the State’s videotape to be included in the contention that appellant record. forfeited his The State there- requested fore permitted right complain that it be to about the of sup- proba- to issue plement the appellate record a ble copy cause on because he had failed of Trooper Fountain’s scene litigate to the trial court.9 The State Amador, 5. 187 S.W.3d. at petition 546. The 7. Id. at 546-47. did not only record contains the record of this Court for review of that decision. testimony. Officer Fountain's In several 8. Id. at 547-48. places playing that record refers to the witness, parties and the trial stated, appeals 9. Id. at 548. The court of judge. It is unknown how much of the video- tape judge. viewed authority proposi- the trial The State cites no for the But, noted, as the court of Appellate at least tion that the Rules of Procedure portion videotape showing some require argu- both a written motion and sobriety specifically one-leg- field hearing perfect ment at an to error. oral tests— played judge. reviewing stand —was for the argument Id. defense counsel’s to during hearing [appel- the trial court on 6. Id. at suppress, 547. motion to we also find lant’s] [his] argued that videotape provided ported implicit finding the trial court’s cause to Trooper probable sufficient evidence of Fountain had probable cause to appellant arrest for DWI.13 support appellant’s arrest for DWI.10 The stated “[b]ecause in the appellate is not a II. complete ruling review of trial court’s pro The in a criminal defendant impossible.”11 However, it also conclud- alleges Fourth Amendment ceeding who that, ed had “introduced producing violation bears burden the videotape, ruling suffered the adverse presumption some evidence rebuts suppress, presented on motion to “A defendant proper police conduct.14 an incomplete appeal,” record on proof by initial estab meets his burden “ failed to ensure ‘the record on ap- occurred that a or seizure lishing search peal sufficient resolve the issue he [was] burden then without a warrant.”15 ”12 present[ed].’ Therefore, that the search shifts prove State to un- reasonable videotape sup- assumed or seizure was nonetheless stated, holding attorney proving apparent” judge, "The burden to the trial probable objection cause lies on federal constitu- with the Government.” an to evidence Thus, no- accepted argu- grounds put we did on even if the State’s tional not ment, not, barred we do tice a claim that the evidence was which the record does not Constitution); support Sedani position. Texas its Dist.] (Tex.App.-Houston [1st appellant's Id. At the trial-court ref’d) (“When reconsideration, pet. party is allowed motion for no one mentioned requested until hide relief the reasons for its "probable the term cause to arrest.” No one requiring a appeal,” purposes two asked prob- for a there was whether specific objection and "state to make able cause to arrest. The judgment de- any ruling reasons for question solely upon court were focused However, defeated). are State sires” suspicion of articulable to detain issue, and petition for review on this field-sobriety Although appel- conduct tests. we will address it. therefore lant’s written motion to and his mo- tion for reconsideration mentioned arrest, specifi- cause to never issue was attention, cally brought Fountain’s *7 11. Id. at 549. barely by during was mentioned defense the hearing, the initial and was referenced 12. Id. all at the the motion for reconsider- might reasonably question ation. wheth- One ("Because 13. the trial court reviewed Id. during argument closing fairly er a statement description [appel- videotape, a detailed puts party the opposing and the trial on stop during performance is unnec- lant's] party litigating is notice that a existence of cumulative.”). essarily State, v. cause. See 91 Martinez 331, (Tex.Crim.App.2002) 335-36 State, 7, (Tex.Crim. 14. v. 717 S.W.2d Russell (noting that both P. 33.1 Tex.R.App. TexR. “ ("When sup- App.1986) a defendant seeks to ‘judge-protecting’ Evid. 103 are rules of press evidence on the basis a Fourth preservation,” error and the forfeiture of violation, placed Court has Amendment this depends appeal claims on "whether the on proof initially upon defen- burden complaining party brought on to the produce [who] dant ... must evidence very complaint trial court’s attention the proper presumption police con- defeats the making party appeal”); Heidelberg is now State, proof (Tex.Crim. the burden of 535, and therefore shifts duct
v. 144 S.W.3d 538-43 omitted). State.”) (citations to the App.2004) (collecting noting cases and "one of each must look context case ground objection to order see if Id. totality der the in light circumstances.16 courts “review the evidence most ruling favorable court’s In reviewing ruling a trial court’s implicit assume that the court made on a motion to suppress evidence and its findings of fact supported the rec- determination of the reasonableness of ei reviewing ord.” But courts can assess temporary ther a investigative detention or only that is evidence arrest, an appellate courts ause bifurcated If appellate appellate record.23 record standard of They give review.17 must “al incomplete anything is relevant is omit- most total deference to a trial court’s de it, ted any party may “direct termination of the historical facts that the official reporter prepare, certify, supports especially when the trial and file in the supple- court a findings court’s fact are based on an evalu mental record containing the credibility ation of and demeanor.”18 This omitted items.”24 “deferential standard of review in Guzman applies ato trial court’s determination parties may Sometimes the treat an ex- of historical facts when that determination hibit, document, or other material as if is based on a recording admitted those items had been admitted into evi- into evidence at a suppression hearing.”19 dence, though they even were never for- Appellate courts also afford the same level mally offered or admitted of deference to a trial State,25 court. example, For Harden “application of law to fact questions,” or this Court noted that a photograph of a “mixed questions fact,” of law and if the burned trailer jury shown to the in an resolution of questions those turns on an only arson trial was the evidence that evaluation of credibility and demeanor.20 support finding would the trailer courts review de novo noted, was a “house.”26 We questions “mixed of law and fact” that do timely objection, absence of a [the] depend upon credibility and demean- display photograph before the or.21 jury testimony and the elicitation of con-
When the trial cerning court does not its features was tantamount explicit make findings of fact in ruling on a photograph introduction of the and it evidence, motion to properly could be considered as 16. Id. "any ment that omission in the record the appellant presents presumed support (Tex. 17. Ford v. ruling”; concluding trial court’s that Tex. Crim.App.2005). "permits requires P. 34.6 R.App. each reporter's see that record con- (Tex. Guzman *8 tains all that the court needs. It is Crim.App.1997). sufficient, longer necessary, no or for a State, 101, 19. v. 195 S.W.3d 109 Montanez argue by that the should be decided (Tex.Crim.App.2006). hypotheses missing portions about of the rec- ord.”). 20. Id. at 107. 21. Id. 24. Tex.R.App. 34.6(d). P. Ford,
22.
the evidence.27 whether and to what extent trial court, an or or used jury the saw item that though photograph Even the was never into formally evidence, was not introduced “formally offered and introduced into evi- notice “the trial must-after court and brought dence nor forward in the rec- hearing-settle dispute.”31 the ord[,]”28 requested that the photograph we be forwarded to this Court. We then used legal propositions in general With those photograph, which had never been mind, present case. we turn to the into offered or admitted evidence had and not original been included in the record on III. appeal, assessing the sufficiency of the Here, argues that the prove evidence burned trailer “assuming” by erred was, fact, a house.29 Dix Professor (1) recorded Fountain’s Harden, that, *9 "in the absence of instead but are based photograph jury display documentary before the cou evidence or inferences cal or facts.”) City pled testimony concerning Anderson (quoting contents from v. other 564, 573-74, 105 photograph City, 470 U.S. is tantamount to introduc Bessemer 1504, (1985)). evidence”); photograph into S.Ct. L.Ed.2d 518 tion of the State 84
675
suspicion to
inferences from the facts.”33
articulable
detain
reasonable
or
reviewing
But
courts cannot “assume”
once
Fountain wrote him a warn-
about the
exhibits or
speculate
contents of
to establish
ing
probable
ticket and
in
other materials that are not contained
disput-
to arrest
that issue was
however,
was,
It
record.34
ed.
burden
present
ap-
In the
á record on
sufficient
bring
appeal
the court
forward
case,35
State,36
upon Guajardo
relied
peals
v.
the trial
in his
to show that
court erred
proposition
appealing
it is “the
Appel-
on motion to
suppress.39
party’s burden to ensure that the record
rely upon
lant claims that he does not
appeal
is sufficient to
the issue
resolve
or content of the
in his
existence
Appellant argues
viewpoint,
From his
the record
presents.”37
appeal.40
does not
Guajardo
apply here because he
appeal
sufficient to resolve the issue
have the
in
proof
did not
burden of
without
He
presents
videotape.
establish
cause. He
it,
does not need
and he does not want it.
“It
argues:
was the
to offer
State’s burden
contents,
not rely upon
Because he does
its
record to
court to
sufficient
the trial
required to
vid-
designate
he was not
proof.
sustain its burden of
failure to
Its
in
eotape
for inclusion
rec-
do
cannot result in a
presumption
so
ord.41
the evidence
did not make
of the
in
supported
Conversely, the State did want
vid-
eotape
decision.”38
in the
It quite
record.
supplement
properly
it was the
tried
the record
Indeed
State’s burden to es-
tablish,
court,
in the trial
Appellant, again
the existence of with the videotape.42
State,
722,
(Tex.
Kelly
33.
163
726
(Tex.Crim.App.2003).
S.W.3d
36.
solved. Whitehead in As we stated State,45 may be supplemented record “the
The
faced
court of
was
with a
has
something
if
rules
appellate
under the
judge obviously
dilemma:
trial
the
viewed
supplementation
appellant
omitted,
the
portions
videotape
[but]
and
been
reporter to
Appellant
by
claims
he used
the official court
also
that
the vid-
letter direct
appellate
eotape solely
impeach
certify,
and file
the
prepare,
Fountain's
testimony
any
reporter’s
con-
supplemental
in-court
and not to establish
record
court
argues
supplemen-
the
Any
substantive fact. He
that
taining
omitted items.
the
stating
appellant
incorrect in
that
appellate
reporter’s
is
tal
record
videotape.
appellant
"introduced” the
While
record.
formally
technically
is
correct that he did not
(e)
reporter’srecord.
in the
Inaccuracies
videotape,
record
"introduce” the
shows
(1)
agreement.
inaccuracies
Correction of
videotape
“used” the
for sub-
may agree
an inaccu-
parties
to correct
purposes
upon
stantive
and relied
its contents
record, including an
reporter’s
racy in the
stumble,
did
arguing
that he
was not
exhibit,
reporter's recerti-
court
without the
car,
getting
slow in
out
fication.
expressly
mumble.
relied
(2)
court.
trial
Correction
inaccuracies
of
cannot
upon
arguing
contents of
or
agree
whether
If the
at the
motion for reconsideration
Officer
so that
reporter’s
record
how correct the
suspicion
Fountain lacked articulable
in de-
occurred
what
accurately discloses
the text
taining
writing
warning
appellant after
accu-
are
exhibits
in the trial court
portion
replay
ticket.
He offered
rate,
must—after notice
the trial court
tape
judge’s
to refresh the
recollection.
court
dispute.
If
—settle
circumstances,
Under
it cannot be de-
these
inaccuracy,
order
any
it must
finds
upon
nied that
relied
reporter
to conform
court
proof
physical
in the trial court for
of his
exhibits) to
any
(including text and
agree
ap-
condition. We
with the court of
court, and to file
what occurred in the
peals
those
court.
appellate
corrections in
certified
played
were
the trial
were treated as
(3)
court.
filing
Correction after
they
into evi-
were
introduced
reporter's
after the
dispute
arises
If
Cornish,
145;
He-
dence. See
court,
in the
record has been filed
356; Harden,
berling,
834 S.W.2d at
may
dispute
submit
S.W.2d at The trial
resolution.
subparagraph
proceed
under
then
must
44. Those
read as follows:
sections
(e)(2).
(d)
anything
Supplementation.
34.6(d)
If
relevant
&
P.
Tex.R.App.
(e).
reporter's
omitted from the
court,
court,
any
may
(Tex.Crim.App.2004).
45.
677
rules cannot
case,
be used to create
evi-
In
present
requested
new
the State
course,
Thus,
dence.”46 Of
an appellate
supplementation
of the record.
dispute
pre-
review of the record is
when a
arose over what and
generally limited to
cisely how much the record
sup-
the evidence that
should be
was before the trial court
plemented,
was mis-
at the time of the trial court’s ruling.47
deny
request
taken to
without also
And that
precisely
purpose
of Rule
ordering the trial court to resolve the dis-
It
34.6.
ensures that the record on appeal
pute.
It was further mistaken in “assum-
accurately reflects all of the evidence that
ing”
portions
that the
of
by,
was seen
by,
used
or considered
the trial court viewed and used in
at the time he
a ruling.48
made
appellant’s motion to suppress were neces-
If
originally
the record as
designated by
sarily unfavorable to his position.
parties
fully
does not
reflect
the evi-
factfinder,
dence considered
then
Because the court of
based its
the trial judge, the court of appeals,
any
or
decision, at
in part, upon
least
the contents
parties may
direct the court report-
anof
exhibit that was not in
er
supplement
the appellate record with
record,
Therefore,
it erred.
we sustain
the missing items.49 If
have a
appellant’s
ground
first
for review. But
dispute over what items are missing from
properly
because the State had
requested
they dispute
or
supplementation of the record with that
accuracy
completeness
items,
or
of
exhibit,
those
missing
judgment
we vacate the
the trial court will resolve that dispute.50 the court of appeals and remand this ease
872;
State,
46. Id.
370,
see
gher
also Routier v.
Exchange,
112
v. Fire Ins.
950 S.W.2d
554,
(stat
(Tex.Crim.App.2003)
557
(Tex.1997)
curiam)
(per
(quoting
371
Crown
ing,
capital
appeal,
murder
that this Court
Gonzalez,
Ins. Co. v. Estate
820 S.W.2d
Life
reporter
ordered the
prepare,
"to
121,
(Tex.1991)
curiam));
(per
121
see also
certify,
supplemental
and file a
reporter’s rec
State,
469,
(Tex.
Blondett v.
containing any
ord
omitted items. We also
1996,
ref'd)
App.-Houston
pet.
[14th Dist.]
ordered
any dispute
the trial court to resolve
("The purpose
[predecessor
to Rule
raised in the
motion and to ensure
34.6(e)
is to create an
]
accurate record on
reporter’s
that the
record conformed to what
appeal.”).
trial.”).
Routier,
occurred at
this Court
upon
cited and relied
State Farm Fire & Cas.
49.
P.
Tex.R.App.
34.6(d).
Vandiver,
(Tex.
Ins. Co. v.
to that court for further con- appeal. opinion. sistent with this *12 probable the issue of
Appellant raised HERYEY, J., opinion, a dissenting filed in the appeal for his arrest on direct cause KELLER, P.J., KEASLER, in which appeals. court of See Amador J., joined. (Tex.Cr.App.2006).2 that, denying appel- The in record reflects
MEYERS, J.,
participating.
not
to
motion
lant’s motion
and his
reconsideration,
in
for
the trial court relied
HERVEY, J.,
in which
dissenting
patrol-car
part
portions
of Fountain’s
KELLER,
KEASLER,
P.J.,
J., join.
apparently showing, among oth-
videotape
respectfully
I
dissent.
I would decide
things, appellant performing
er
field sobri-
the
under Rule
appellant
that
burden
ety
not
an
produce
tests.
34.6(d)
Appellate
of the Texas Rules of
appellate
portions
the
of the
record with
attempt
supplement
to
to
the
Procedure
that
videotape
the
considered
the
portions
record with the
of
ruling,3
its
and he took affirmative
making
videotape
court considered
steps
efforts
to frustrate
the State’s
suppress.1
denying appellant’s motion to
part
appel-
a
making
videotape
the
Having
sustain this burden and
failed to
late
As
the Court’s
record.
I understand
having
steps
pre-
also taken affirmative
to
ef-
opinion, appellant opposed the State’s
taking
the
on this
vent
other
record
supplement
the
forts to
burden, appellant should not now be heard
never
it had
videotape
with the
because
evidence,
complain
appeals
the court of
as-
into
to
that
been
introduced
may
supported
have consid-
videotape
that
because the trial court
sumed
it.4
appel-
only portions
on an
that
ered
of
trial court’s
issue
34.6(d)
it in
supplementation
though the
raised
allows for
of
State
Rule
reporter’s
anything
"preser
rele-
record
it omits
this
has held that
appeals and
Court
appellant designates to be
vant that an
includ-
systemic requirement.”
error
vation of
reporter’s
under
ed in the
Rule
Amador,
(noting
op.
the State
at 671
that
See
case,
34.6(b)(1).
appellant
this
did not
appel
appeals "that
of
claimed in
court
videotape
designate any portions
to be
of
complain
right
about
his
lant forfeited
record,
reporter’s
argu-
so
included in the
probable
issue of
cause
ably
supplemented
could not have
it
court”), and
litigate
in the trial
had failed to
portions
these
of
under Rule
appellant
op.
(suggesting
n.
at 671-72
34.6(d).
probable cause for
preserve
failed to
issue
issue);
arrest,
declining
to address
his
but
record, however,
appellant
2. The
reflects
(Tex.Cr.
510, 515
Haley
suppression
did not
this issue at the
raise
system
is a
App.2005) ("preservation of error
hearing
arguments.
closing
See
until
requirement”).
ic
Amador,
op.
suppression
at 670. The
validity
of Fountain’s
had focused on
appellant
"continued detention of
after she
under Rule
appellant’s burden
3.This
warning
speeding.”
ticket for
See id.
wrote
34.6(b)(1),
provides:
which
Appellant’s
for
motion
reconsideration
perfecting
time
At or before the
Amador,
See
this discrete issue.
focused on
writ-
request in
appellant must
appeal, the
record,
op. at
this
I would decide
670. On
reporter prepare
ing that the official
probable
any
forfeited
issue
desig-
request must
record.
arrest,
parly
because the other
request
A
be included.
nate the exhibits to
reasonably have be
and the trial court could
reporter
not the
the court
contesting
was not
lieved
—but
portions
designate the
recorder —must also
opinion declines to ad
issue. The Court's
issue,
proceedings to be included.
preservation
error
even
dress this
circumstances,
of the trial court
ting
portions
these
relevant
Under
from the
proceedings
appellate record.
videotape sup-
assumed that the
any
court that
ported
ruling by the trial
By
make the relevant
failing
cause existed for
ar-
Amador,
rest. See
This
op.
671-72.
bur
appellant could
sustain his
decides that
Court
the court
den
the court
overcome
videotape sup-
erred
assume that the
presumption
supported
any such
ported
ruling by the
*13
ruling denying appellant’s
the trial court’s
suggests
of
the court
suppress.
appeals,
motion to
The court of
sup-
could on remand
abate the
therefore,
vid
properly presumed that the
plementation
portions
of the
of
record with
this
eotape supported
ruling.
parte
ExCf.
videotape
under the
set out
procedures
(Tex.Cr.
Guzman,
461,
S.W.2d
464
589
34.6(e).
Amador,
668,
op.
in Rule
at
See
(since no
of
App.1979)
statement of facts
672, 677-78.
filed,
juvenile’s examining trial
re
were
viewing
presume
pro
court could
that all
a
It is well-settled
there is a
rule that
cedural
within the
steps
proceeding were
presumption
regularity
of
in the trial court
with).
complied
proceedings, absent a
to the con
showing
trary by the appealing party.
Light
See
v.
decision in
This Court’s
Rowell v. State6
State,
104,
15
(Tex.Cr.App.
S.W.3d
107
contrary.
is not to the
This Court
2000) (presumption
judi
a
regularity
is
Rowell decided
the current rules of
cial construct
a
requires
reviewing
appellate procedure permit
appealing
court, absent
impropriety,
evidence of
to party
partial
a
present
to
record and
indulge every presumption in favor of the
these
“allow the
to
rules
determine
regularity of the
and docu
proceedings
necessary
a
what is
record to be so
court);
ments
parte
lower
Ex
Wil
to
complete
appellate
enable the
court
son,
953,
716
(Tex.Cr.App.
S.W.2d
956
Rowell,
point of
to decide the
error.” See
1986) (there is a
presumption
regu
But,
partial
66
at 282.
S.W.3d
record
larity of
judgment
of conviction and presented by the
Ro
appealing party in
proceedings,
showing
absent a
error,
well
reversible
and it was
showed
contrary).5
requires
appealing
This
enough so
complete
appel
as to enable the
party
present
to
showing
a record
revers
decide
point
late court to
the substantive
State,
error.
ible
See Word v.
206 S.W.3d
Rowell,
presented
appeal.
error
See
646, 651-52 (Tex.Cr.App.2006) (appealing
280-82;
Word, 206
66 S.W.3d at
see also
party has burden
a
present
to
record
(appealing party
S.W.3d at 651-52
has bur
error).
showing reversible
appealing
a
present
showing
den to
reversible
error).
party
ap
does not fulfill
omit-
presented by
this burden
The record
Maj. Op.
(stating
videotape
4.See
at 671
were
viewed
objected
judge and
request
to
not considered when
supplement
State’s
to
rec-
ruling”).
made his
ord
because it "had never
marked
been
as an exhibit or
intro-
557,
Vega
5. See
707
559
S.W.2d
court”);
into evidence
duced
in the trial
but
1986); Stacy
(Tex.Cr.App.
Maj. Op.
(stating
at
see
675-76
860,
J.,
(Baird,
(Tex.Cr.App.1991)
dissent
objected
request
to
supplement
State’s
to
rec-
ing) ("presumption
regularity
is a sound
ord with the
"the
construct”).
judicial
entirety
did not
view its
thus the
appellate
might
(Tex.Cr.App.2001).
portions
6. 66
consider
any
“enable the
pealing party
merely
in Rowell
not omit
and did not
incomplete
thing
point
relevant to this substantive
point
of er
appellate court to decide
Rowell,
error. See
ble existed respectfully I dissent. When, here, party affirmatively keeps party supplementing the other from
appellate complete record “to be so as to
enable the decide the appellate error,”8 party be es- point should topped from complaining presumed missing part that this ruling. the record supports Prystash 530- See GUTIERREZ, Appellant, M. Ernest (a (Tex.Cr.App.1999) party generally estopped complaining from an action about induced).
that he of Texas. STATE Finally, opinion suggests the Court’s on remand could PD-1633-05. No. supplementation abate Texas. Appeals of of Criminal Court the record procedures set in Rule under out 25, 2007. April 34.6(e). Amador, See at 550. 34.6(e)
But, procedures Rule out sets correcting reporter’s inaccuracies nothing inaccurate record. There desig 34.6(b)(1) filed in nated under Rule to be appeals. This record was warrant affidavit appealing 7. The in Rowell claimed omit search support of a warrant that he an affidavit in search then claim Rowell, at 280- was invalid. See id. appeal. win See should appealing party the search 81. The made warrant affidavit a rec- Rowell, at 282. 8. See appealing party ord. See id. The notes after field of the sobri appellant’s performance courts have held Texas that documents (2) tests, judge all of ety trial viewed the way made part items some (3) videotape, and portion trial are by record which treated supported tests depiction video of those parties court and as if intro- opinion Trooper Fountain’s properly duced into evidence are consid- time at the she arrested was intoxicated by judge jury and ered the merits him. is correct. Thus, they properly the case. are included record and con- must defer Reviewing courts sidered court.30 findings that only to factual implicit all of a But in favor trial support if the court record is un- will drawing clear cannot also to parties agree ruling,32 and the as to court’s “but Brown, 588, (Tex.App. 27. 591 Id. 929 S.W.2d 1996, (concluding Corpus pet.) no Christi 28. Id. parties and the when it is that both clear evidence, the judge exhibit as treated an 29. Id. appeal as if may exhibit admitted); considered on be 463, State, S.W.2d 859 Smith v. George 30. E. Dix & 43A Robert O. Dawson, 1993, ref’d). pet. (Tex.App.-Fort 465 Worth Criminal Texas Practice: Practice and Proce (2d ed.2001); § 43.349 at 606 also see dure Tex.R.App. Dawson, 34.6(e)(2); Dix & see P. State, 144, (Tex. Cornish v. 145 (discussing § and 43.472 abatement at 696 (in Crim.App.1993) hearing, review of Batson record). reporter's remand for modification juror would consider information cards prosecutor 85, that were used both State, (Tex. Guzman-v. during hearing they had been defense Crim.App.1997); see Manzi into evidence and introduced (hold (Tex.Crim.App.2002) themselves”; speak will "[t]he stated cards given ing be to trial that deference must exchange apparent it is "From this findings do findings court's even when those judge regarded juror and the trial credibility turn upon the assessment significant part demeanor; cards as a information stating, there “Where are two evidence, upon appel which a evidence resolution of permissible factfin- views depend.”); lant's Batson claim would Heber clearly be der’s them cannot choice between (Tex.Crim. ling v. even when district erroneous. This is so App.1992) (collecting holding cases credibility de findings do not rest timely terminations, objection, on physi