Tyler v. State, No. 05-05-01378-CR (Tex. App. 7/15/2008)

• Decision Date: 15 July 2008
• Docket Number: No. 05-05-01378-CR.,05-05-01378-CR.
• Citation: Tyler v. State, No. 05-05-01378-CR (Tex. App. 7/15/2008), No. 05-05-01378-CR. (Tex. App. Jul 15, 2008)
• Parties: DOUGLAS BRILL TYLER, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

DOUGLAS BRILL TYLER, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-05-01378-CR.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed July 15, 2008.

Do Not Publish. Tex.R.App. P. 47.

On Appeal from the County Criminal Court No. 5 Dallas County, Texas, Trial Court Cause No. MB04-57504-F

AFFIRM.

Before Justices MORRIS, WHITTINGTON, and O'NEILL

OPINION

Opinion By Justice O'Neill.

A jury convicted appellant Douglas Brill Tyler of misdemeanor driving while intoxicated, and the trial court sentenced him to 180 days, probated for two years, and a $1,200 fine. In his first six issues, appellant generally complains he is entitled to a new trial because a significant portion of the reporter's record has been lost or destroyed. In his seventh and eight issues, he asserts the trial court erred in restricting his cross-examination of the arresting officer and in excluding certain evidence. Finally, he contends the trial court erred in denying his request for a mistrial. After considering Tyler's issues, we affirm the trial court's judgment.

Dallas police officer Gilbert Arevalo stopped appellant for driving sixty-nine miles-per-hour in a forty-five miles-per-hour zone shortly after midnight on July 29, 2004. Officer Arevalo smelled alcohol on his breath and noticed he had bloodshot eyes. Officer Arevalo performed the horizontal gaze nystagmus test on appellant, and he exhibited signs of intoxication. Appellant also failed the walk and turn test and the one leg stand test. Officer Arevalo arrested appellant for driving while intoxicated. The jury convicted him and this appeal followed.

Limiting Cross-Examination of Sole Witness

In his seventh point, appellant asserts the trial court abused its discretion in limiting the cross-examination of Officer Arevalo, the State's only witness, and thereby excluding relevant evidence. The State responds such evidence was irrelevant; therefore, the trial court properly denied it.

During trial, Officer Arevalo testified his car was equipped with an in-car video camera that did not work. Although he first testified he did not have a camera in his car, he later clarified that because it did not work, he considered his car not having one. Appellant wanted to introduce certain evidence regarding Officer Arevalo's in-car video camera, which the trial court denied. Appellant specifically wanted to question him on whether his in-car video camera was working at the time appellant performed the field sobriety tests, and if the equipment was not working, whether the officer had made previous requests for its repair. He believed this supported his theory that Officer Arevalo intentionally refused to preserve evidence of appellant's performance on the field sobriety tests. In a bill of exception, he offered to present maintenance records showing the officer never requested repair of his in-car video camera. He also wanted to offer testimony from an unrelated DWI arrest of another person that occurred a week earlier in which Officer Arevalo recorded the field sobriety tests with his in-car video camera.

We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will reverse a trial court's decision to admit or exclude evidence only when that decision falls outside the zone of reasonable disagreement. Id.; Delapaz v. State, 228 S.W.3d 183, 201 (Tex. App.-Dallas 2007, pet. ref'd). All relevant evidence, unless otherwise barred by constitution, statute, or rule, is admissible at trial. Tex. R. Evid. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403.

Here, the trial court properly limited cross-examination of Officer Arevalo because the maintenance records were irrelevant. The court heard testimony that any request for repair of the in-car video camera would not be covered by the maintenance reports. Therefore, appellant's attempt to use the reports to show Officer Arevalo was lying about requesting camera maintenance would not be established by the reports. As such, the maintenance reports would not have the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without them. Tex. R. Evid. 401 (defining "relevant evidence"). Thus, the trial court did not abuse its discretion in excluding this evidence.

Appellant also argues the trial court erred in excluding testimony from an unrelated DWI trial in which Officer Arevalo used his in-car video camera to record field sobriety tests of an arrest one week prior to appellant's arrest. He alleged this went to his theory that the officer lied about whether his camera was in fact working during appellant's arrest and that he intentionally either did not turn it on or later destroyed the tape.

The trial court again properly excluded the unrelated trial testimony as irrelevant. Whether Officer Arevalo's in-car video camera worked a week earlier or on any date other than the date of appellant's arrest could not establish that it was working on that particular day. It also does not make it more or less probable that he intentionally turned off the camera. Thus, the trial court properly excluded it and did not abuse its discretion in limiting Officer Arevalo's testimony. Appellant's seventh point is overruled.

Sufficiency of Reporter's Record

In six points, appellant alleges he is entitled to a new trial because (1) a significant portion of the reporter's record has been lost or destroyed; (2) the trial court erred in concluding the filed record was correct; (3) the trial court denied appellant due process by not allowing him to listen to the court reporter's tapes or review her stenographic record; (4) the trial court denied him due process by not allowing an expert to listen to the tapes; (5) the trial court denied appellant due process by not compelling the court reporter to comply with a subpoena duces tecum to produce her stenographic records; and (6) the trial court denied him due process by terminating the hearing without determining whether the unfulfilled portions of the record were lost or destroyed. We conclude all of appellant's complaints lack merit.

A defendant is not entitled to a reporter's record as a matter of right. Instead, at every stage of trial, a defendant must exercise some diligence to ensure that a record of any error will be available in the event an appeal is necessary. See Alvear v. State, 25 S.W.3d 241, 245 (Tex. App.-San Antonio 2000, no pet.). Nonetheless, if a reporter's record of the proceedings from which the appeal arises is lost or destroyed, an appellant is entitled to a new trial if he establishes that: (1) the appellant has timely requested a reporter's record; (2) without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed . . .; (3) the lost, destroyed, or inaudible portion of the reporter's record . . . is necessary to the appeal's resolution; and (4) the parties cannot agree on a complete reporter's record. Tex. R. App. P. 34.6(f). If, however, the missing record is not necessary to the appeal's resolution, then the record's loss is harmless, and a new trial is not required. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999); Alvear, 25 S.W.3d at 245.

We first note appellant timely requested the reporter's record. Thus, our inquiry begins with whether a significant portion of the record has been lost or destroyed through no fault of appellant. See Tex. R. App. P. 34.6(f)(2). Appellant asserts the reporter omitted a significant portion of the record when she omitted his opening statement, which put forth his defensive theme for trial. Specifically, his theme included evidence of an in-car video that would discredit the officer's testimony. He further claims, without the opening statement, this Court is not in a position to conduct a proper harm analysis because we are required to review all evidence in the record in determining harm. We disagree with both contentions.

Appellant has failed to establish a significant portion of the record has been lost, thereby entitling him to a new trial. Tex. R. App. P. 34.6(f)(2); see Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) ("An appellate court reviews a trial court's denial of a motion for new trial under an abuse of discretion standard."). The trial court held two different hearings to determine the accuracy of the record. During a March 22, 2007 hearing, the court reporter testified she normally does not transcribe opening statements. The trial judge also stated he usually only allows approximately two minutes for opening statements; therefore, he could not see "any significance to it." The reporter also stated she reviewed her notes and tapes four or five times and nothing was missing. Because this was a simple DWI case, with only one witness, we cannot conclude the two-minute opening statement was a significant part of the reporter's record. But see Issac v. State, 982 S.W.2d 96, 100 (Tex. App.-Houston [1st Dist.] 1998), aff'd, 989 S.W.2d 754 (1999) (concluding thirty minutes of the trial that was lost, including opening statements and the direct examination of one of only two witnesses, was a significant portion of the record). The purpose of an opening statement is to give the jury a general picture of the facts of the case so it will better understand the evidence presented. State v. Lee, 971 S.W.2d 553, 556 (Tex. App.-Dallas 1997), rev'd on other grounds, 15 S.W.3d 921 (Tex. Crim. App. 2000). We agree with the State that although an opening statement may present the defensive...