Dodd v. State, No. 06-03-00060-CR (Tex. App. 1/8/2004), 06-03-00060-CR

• Decision Date: 08 January 2004
• Docket Number: No. 06-03-00060-CR,06-03-00060-CR
• Parties: ROBERT DODD, Appellant v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

ROBERT DODD, Appellant v. THE STATE OF TEXAS, Appellee.

No. 06-03-00060-CR

Court of Appeals of Texas, Sixth District, Texarkana.

Date Submitted: January 7, 2004.

Date Decided: January 8, 2004.

DO NOT PUBLISH.

On Appeal from the 208th Judicial District Court, Harris County, Texas, Trial Court No. 797033.

Before MORRISS, C.J., ROSS and CARTER, JJ.

MEMORANDUM OPINION

JACK CARTER, Justice.

Robert Dodd appeals from the revocation of his community supervision. The trial court sentenced him to eight years' imprisonment. In the underlying case, Dodd was originally placed on ten years' community supervision June 12, 2000, on a charge of indecency with a child. Dodd contends on appeal the trial court committed reversible error during the revocation proceeding by admitting computer documents that are hearsay, by admitting testimony by a polygraph examiner about Dodd's deceptiveness, and abused its discretion by revoking community supervision because the evidence was insufficient to support revocation.

Dodd was wearing an electronic ankle monitor. The court revoked his community supervision based on a single violation of his curfew.¹

Dodd first contends the trial court erred by admitting documents generated by the General Security Services Corporation (GSSC), the company that oversees electronic monitoring of those on community supervision. Those documents were transmitted to the community supervision office by GSSC and were evidently part of Dodd's community supervision file. The documents show he was outside his residence at 3:34 a.m.²

The problem is those documents were not marked, introduced, or admitted into evidence. It is apparent, however, from two statements made during closing arguments, that both counsel erroneously thought the documents had been admitted.

[Defense Counsel]: . . . . The documents that you allowed into evidence attached to that probation file were documents that are hearsay.

THE COURT: What documents I allowed into evidence?

[Defense Counsel]: The probation file.

THE COURT: Oh, the probation file.

. . . .

[Prosecutor]: Your Honor, the evidence you have in this case before you is basically the probation file. And the probation file includes documents from the corporation in this case that does the monitoring for this department . . . . Those documents specifically state when the Defendant enters and leaves his residence and in those documents it states that the Defendant left his residence on October 22nd of 2002, at 3:30 in the morning.

Regardless of what counsel may have thought, the record shows beyond any doubt the documents were not introduced or admitted as evidence. Thus, they were not retained by the court reporter as exhibits, and they also do not appear in any portion of the appellate record.

It is the appealing party's burden to ensure that the record on appeal is sufficient to resolve the issue he or she presents. Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim. App. 2003); see Rowell v. State, 66 S.W.3d 279, 282 (Tex. Crim. App. 2001) (under TEX R. APP. P. 34.6, "[i]t is no longer necessary, or sufficient, for a party to argue that the appeal should be decided by hypotheses about missing portions of the record"; each party must "determine what is necessary for a record to be so complete as to enable the appellate court to decide the point of error (including its preservation and its effect)").

Each party is required to see that the reporter's record contains all the appellate court needs. Rowell, 66 S.W.3d at 282. The appellant once bore the burden of presenting a record that demonstrated error, but the rule that so burdened the appellant was revised in 1997. The current rules do not assign a burden to either party, so the appellant could not have failed to satisfy them by presenting a partial record—and in this case, the appellant requested and obtained a complete record.

We presume the State would also take the position that any omission in the record Dodd presents is presumed to support the trial court's ruling. However, as the Texas Court of Criminal Appeals pointed out explicitly in Rowell, such a presumption does not support that argument. "That the omitted portion of the record might support the trial court's ruling does not affect a holding that the record as presented shows conclusively that the trial court committed error. But, be that as it may, such a presumption can no longer exist after the recent amendments to the Rules of Appellate Procedure . . . ." Id. at 281.

We recognize that there is authority stating that, in several contexts, but most often in the context of a guilty plea, when the clerk's record contains a document clearly considered as evidence by the trial court, if the parties treated the evidence as having been admitted, the appellate courts will treat it as such despite the lack of formal admission into evidence. Killion v. State, 503 S.W.2d 765 (Tex. Crim. App. 1973), approved, Pitts v. State , 916 S.W.2d 507 (Tex. Crim. App. 1996); see also Voelkel v. State, 629 S.W.2d 243, 247 (Tex. App.—Fort Worth 1982), aff'd, 717 S.W.2d 314 (Tex. Crim. App. 1986) (in which a cigarette case (that had contained amphetamine) was treated as admitted into evidence and retained by the trial court, coupled with a chemist's testimony as to the identification of its contents, provided evidence sufficient to support the conviction).

Similarly, in Reagan, referring to the Killion decision, the court concluded that, although a Texas governor's warrant was neither formally introduced nor admitted into evidence, it was treated by the court and the parties as if it had been admitted. The court recognized, however, the warrant was in the record before it and appeared proper, and thus declined to reverse the judgment of the trial court. Ex parte Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977); see Kissinger v. State, 501 S.W.2d 78, 79 (Tex. Crim. App. 1973) (where the record indicated the trial court considered defendant's written judicial confessions, they were part of the record and supported the judgment although the court never formally stated confessions had been admitted—the documents were part of the clerk's record); Richardson v. State, 475 S.W.2d 932, 932-33 (Tex. Crim. App. 1972) (although exhibits were not formally introduced into evidence, the record indicated they were accepted by the trial court and were, thus, sufficient to support conviction); Fuller v. State, 30 S.W.3d 441, 446 (Tex. App.—Texarkana 2000, pet. ref'd) (op. on reh'g) (court did not formally admit a letter into evidence, but took judicial notice of it); Lara v. State, 962 S.W.2d 148, 151 (Tex. App.—San Antonio 1998, no pet.) (treating stipulations as admitted into evidence because the court considered them); Rexford v. State, 818 S.W.2d 494, 495-96 (Tex. App.—Houston [1st Dist.]), pet. ref'd, 823 S.W.2d 296 (Tex. Crim. App. 1991) (document, which included appellant's confession to all elements of sexual assault, was on file with and approved by the trial court; thus, it was accepted and considered by the court).³

The problem here exists on several levels. The documents are not part of the appellate record. They were not retained by the court reporter because they were not introduced into evidence. Texas Rule of Appellate Procedure 34.6 governs the presentation of the reporter's record on appeal, and it provides that the record "consists of the court reporter's transcription of so much of the proceedings, and any of the exhibits, that the parties to the appeal designate." TEX. R. APP. P. 34.6. Unlike the cases cited above that provide "waffle room" when an accidental omission occurs, in our case, the documents also do not appear in any other portion of the record. We simply do not have them. Under the current rules, as set out above, it is the duty of each party to see that the record is sufficient to support the party's position.

We now turn to our review of the sufficiency of the evidence to support revocation. The State's burden of proof on a motion to revoke community supervision is lower than the burden of proof necessary for criminal conviction. The State need only prove by a preponderance of the evidence that the terms of community supervision were violated. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984). "Preponderance of the...