Tanguma v. State

• Decision Date: 12 April 2001
• Docket Number: No. 13-99-490-CR,13-99-490-CR
• Parties: (Tex.App.-Corpus Christi 2001) CHARLES TANGUMA, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 663

47 S.W.3d 663 (Tex.App.-Corpus Christi 2001)

CHARLES TANGUMA, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-99-490-CR

Court of Appeals of Texasa, Corpus Christi.

April 12, 2001.

Rehearing Overruled May 17, 2001.

On appeal from the 24th District Court of Victoria County, Texas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

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Before Justices Hinojosa, Yanez, and Chavez¹

OPINION

Opinion by Justice Hinojosa

A jury found appellant, Charles Tanguma, guilty of the offense of burglary of a habitation.² Appellant pleaded true to an enhancement paragraph alleging a prior felony conviction, and the trial court assessed his punishment at sixty years imprisonment and a $5,000 fine. By three points of error, appellant contends the court reporter's failure to transcribe a complete record is reversible error, the trial court erred in denying his motion for continuance, and his trial counsel was ineffective for failing to challenge any venirepersons for cause. We affirm.

I. Court Reporter's Failure to Transcribe a Complete Record

By his first point of error, appellant contends reversible error occurred because the court reporter failed to record six bench conferences held during his trial.

A. Rule 13.1 and the Burden It Imposes

The rules of appellate procedure provide that:

[t]he official court reporter or court recorder must:

(a) attend court sessions and make a full record of the proceedings unless excused by agreement of the parties.

Tex. R. App. P. 13.1(a)(emphasis added). The comments following Rule 13.1 state:

Paragraph 13.1(a) merges paragraphs (a)(1) and (2) of former Rule 11 and now requires the reporter to make a record of voir dire and closing arguments unless excused by agreement of the parties.

Tex. R. App. P. 13.1, note & cmts. When construing a procedural rule adopted by the court of criminal appeals, we employ the ordinary tools of statutory construction. Hill v. State, 3 S.W.3d 249, 251 (Tex. App.--Waco 1999, pet. ref'd) (citing Merriam-Webster's Collegiate Dictionary 929 (10th ed.)). We construe "proceedings" to mean those events or happenings which occur during the course of a trial or other hearing. Id. The duties imposed on the court reporter by Rule 13.1 are not met by simply filing the reporter's record with the appropriate appellate court. State v. Creel, 895 S.W.2d 899, 900 (Tex. App.--Waco 1995, orig. proceeding). The record filed must also be complete and accurate. Id.

Prior to the 1997 amendment of the appellate rules, a record was required only when it was requested by the trial court or a party. Texas Rule of Appellate Procedure 11 then stated:

Rule 11. Duties of Court Reporters

(a) The duties of official court reporters shall . . . include but not be limited to:

(1) attending all sessions of court and making a full record of the evidence when requested by the judge or any party to a case, together with all objections to the admissibility of the evidence, the rulings and remarks thereon;

(2) making a full record of jury arguments and voir dire examination when requested to do so by the attorney for any party to a case, together with all objections to such arguments, the rulings and remarks of the court thereon; . . .

Tex. R. App. P. 11(a), 49 Tex. B. J. 561 (Tex. Sup. Ct. and Tex. Crim. App. 1986, amended 1997)(emphasis added); see also, Gibbs v. State, 819 S.W.2d 821, 828 (Tex. Crim. App. 1991).

Before the 1997 amendment, the burden was on the defendant to request that the court reporter make a full recordation of the proceedings. Since 1997, the burden has been on the court reporter to record all of the proceedings, unless excused by agreement of the parties.

We acknowledge that one of our sister courts has declared Rule 13.1 void. Polasek v. State, 16 S.W.3d 82, 88-89 (Tex. App.--Houston [1st Dist.] 2000, no pet. h.). The Polasek court found that the new rule constituted "an enlargement of a defendant's substantive rights, in violation of the mandate that rules not modify the substantive rights of litigants," and impermissibly conflicts with an existing statute, section 52.046 of the government code.³ Polasek, 16 S.W.3d at 88-89. We decline to follow Polasek.

It is true that the court of criminal appeals is granted rulemaking power to promulgate rules of posttrial, appellate and review procedure in criminal cases, but that its rules may not abridge, enlarge, or modify the substantive rights of a litigant. Tex. Gov't Code Ann. § 22.108(a) (Vernon Supp. 2001); Lyon v. State, 872 S.W.2d 732, 735 (Tex. Crim. App. 1994). However, we agree with the dissent in Polasek that new Rule 13.1 does not create a substantive change from the prior rule, but instead merely alters the procedural requisites for ensuring that legal proceedings are officially recorded. Polasek, 16 S.W.3d at 90-91 (Price, J., dissenting). Criminal defendants have always had the right to have the proceedings in their cases fully recorded. The change in the rule merely eliminates a procedural burden on a defendant to initially request the presence of a court reporter.

Additionally, we see no conflict with section 52.046 of the government code, which specifically gives the Supreme Court of Texas the authority to adopt rules regarding the duties of court reporters in civil cases. The court of criminal appeals has concurrent powers to adopt rules regarding appellate procedure in criminal matters. Tex. Gov't Code Ann. § 22.108(a)(Vernon Supp. 2001).

We further note that an analogous rule regarding suits affecting the parent-child relationship is found in the family code:

§ 105.003. Procedure for Contested Hearing . . .

(c) A record shall be made as in civil cases generally unless waived by the parties with the consent of the court.

Tex. Fam. Code Ann. § 105.003 (Vernon 1996) (emphasis added). Section 105.003(c) has been interpreted as imposing an affirmative duty on the trial court to insure that the court reporter makes a complete record of the proceedings. See Stubbs v. Stubbs, 685 S.W.2d 645-46 (Tex. 1985); In re Vega, 10 S.W.3d 720, 722 (Tex. App.--Amarillo 1999, no pet.).

We do not believe that Rule 13.1 imposes any duty on the trial court, however, the unambiguous language of Rule 13.1 imposes a duty on the court reporter to record all of the proceedings, unless excused by agreement of the parties. Finding no valid reason for holding Rule 13.1 void, we respectfully decline to follow Polasek.

B. What Was Not Recorded in This Case

Appellant complains that the court reporter failed to record six bench conferences held during his trial.

1. First Bench Conference

Appellant complains the court reporter failed to record a bench conference held before the case was called.

2. Second Bench Conference

Appellant complains the court reporter failed to record a bench conference which occurred after voir dire had begun, but prior to any questioning of the panel. According to the court reporter's record, the following occurred:

The Court: (addressing the jury panel):

. . . Again, the offense that Mr. Tanguma is charged with is burglary of a habitation. A person can commit the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit theft. With that, is [sic] the state and Defendant ready to proceed with questioning of the jury?

Prosecutor: State is, your Honor.

Defense Counsel: Yes, your Honor.

The Court: State may proceed, and if you will wait a minute, my court reporter needs to move.

(Momentary lapse.)

Prosecutor: May we approach the Bench just for one moment, your Honor?

The Court: Yes.

(A discussion occurred at the Bench and the proceedings were not requested to be reported.)

The Court: State may proceed . . .;

3. Third & Fourth Bench Conferences

Appellant complains the court reporter failed to record two bench conferences that occurred at the conclusion of voir dire. The record reflects the following occurred:

Defense Counsel: Is there anyone who was present in their home when it was burglarized?

I believe those are all the questions I have. I don't know if y'all have any questions you wanted to ask or any concerns you wanted to address at this point, but I thank you for your attention.

The Court: I need to visit with the attorneys up at the Bench just a minute, and then I will be with everybody as to how much time they need.

(A discussion occurred at the Bench and the proceedings were not requested to be reported.)

Defense Counsel: Mr. Gonzales, are you present here?

The Court: No. 32; Mr. Gonzales, 32.

Defense Counsel: You're back there, right? We had thought for a moment -- did you raise your hand when everybody was asked whether or not they would have problems being here Thursday and Friday?

Mr. Gonzales: Yes, ma'am. I was gonna go out of town Thursday night to Mexico. . . .

Defense Counsel: And that would be Thursday night?

Mr. Gonzales: Yes . . . .

Defense Counsel: Thank you, sir.

The Court: Let me visit with the attorneys up here just a minute.

(A discussion occurred at the Bench and the proceedings were not requested to be reported.)

The Court: Members of the jury, we need about 20 minutes, so let me give y'all a break at this time and remind y'all not to talk among yourselves or with anyone else about the case or remain within hearing of anyone discussing it. . . . If we're gonna be longer than 20 minutes, I will have the bailiff come let you know about how much longer it will be. Thank you very much.

After the panel left the courtroom, counsel and the trial court questioned venireperson Arrisola, who had checked "yes" on her juror information card to the question -- whether she had ever served on a civil jury. After Arrisola left, the record notes, "(Momentary lapse)." The court and counsel next discussed venireperson Jones, who was excused by agreement. The...