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                                  MEMORANDUM OPINION

                                         No. 04-08-00397-CR

                                          Richard JIMENEZ,
                                               Appellant

                                                     v.

                                        The STATE of Texas,
                                              Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006-CR-9576B
                            Honorable Bert Richardson, Judge Presiding

Opinion by:         Catherine Stone, Chief Justice

Sitting:            Catherine Stone, Chief Justice
                    Karen Angelini, Justice
                    Rebecca Simmons, Justice

Delivered and Filed: May 20, 2009

AFFIRMED

           The trial court found Richard Jimenez guilty of aggravated robbery and assessed punishment

at 15 years imprisonment pursuant to the terms of a plea bargain agreement. On appeal, Jimenez

contends the absence of a complete reporter’s record for his appeal entitles him to a new trial. We

disagree with this contention and affirm the trial court’s judgment.
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                                          BACKGROUND

       Jimenez was charged by indictment with committing the offense of aggravated robbery. On

April 7, 2008, the State made an oral plea bargain offer to Jimenez in which it agreed to a

punishment cap of confinement for 12 years. Jimenez orally accepted the State’s 12-year plea offer.

However, for reasons that are unclear from the record, the State withdrew its 12-year plea offer

almost immediately after Jimenez conveyed his acceptance of the offer. The State then made a

second plea offer to Jimenez in which it agreed to a punishment cap of confinement for 15 years.

Jimenez accepted the State’s new 15-year plea offer, and the parties executed a formal written plea

bargain reflecting the terms of the parties’ agreement.

       That same day, prior to the commencement of Jimenez’s plea hearing before the Honorable

Bert Richardson of the 379th Judicial District Court, Bexar County, Texas, Jimenez filed a “Motion

to Enforce Plea Bargain Agreement.” Jimenez’s motion provided:

       Earlier today April 7, 2008[,] the . . . Assistant District Attorney made a plea bargain
       offer of a cap of 12 years. . . . After the offer was made to Defendant, the Defendant,
       by and through his attorney, unconditionally accepted the State’s offer for a cap of
       12 years. . . . Shortly after the offer was accepted by the Defendant[,] the State . . .
       advised Defendant’s attorney that the State was withdrawing [its] offer that was
       accepted and increasing the offer to a cap of 15 years. . . . The Defendant submits that
       a plea bargain was reached by the parties and should be enforced by the court.

Judge Richardson noted on the record that he had received Jimenez’s motion and requested a

response from the State. The State indicated its opposition to Jimenez’s motion, arguing the

agreement for a punishment cap of 12 years never became binding because no written plea agreement

was executed by the parties. The trial court denied Jimenez’s motion.

       After denying Jimenez’s motion, the trial court proceeded to admonish Jimenez about his

plea agreement and his limited right to appeal the denial of his “Motion to Enforce Plea Bargain


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Agreement.” The court informed Jimenez, “[n]ormally I would say I haven’t ruled on any written

pretrial motions in this case and nothing would be reserved for appeal but in fact I ruled on the

motion compelling me to enforce a plea agreement that was not at the bench so that’s reserved for

appeal.” The trial court then accepted Jimenez’s plea of guilty and adjourned.

       On May 7, 2008, Judge Richardson heard evidence regarding punishment and sentencing.

Jimenez asked the court for leniency and urged it to reconsider his “Motion to Enforce Plea Bargain

Agreement.” Judge Richardson and the prosecutor then engaged in a brief discussion to ascertain

the identity of the trial judge who had denied Jimenez’s enforcement motion:

       The State:              With regard to the motion that he filed for enforcement, I
                               believe Judge Priest was here at the time and already made a
                               ruling with regard to that.

                                                ***

       Judge Richardson:       All right. Regarding the request to enforce the original plea
                               bargain, I’m going to – was it Judge Priest who ruled on that?

       The State:              Yes, Your Honor.

       Judge Richardson:       I usually rely on his experience and wisdom in most matters
                               that I’m unfamiliar with. I’ve got his book on the bench . . .
                               So I’ll rely on Judge Priest’s ruling on that.

After its brief colloquy with the State, Judge Richardson found Jimenez guilty of the alleged offense

and sentenced Jimenez to 15 years imprisonment in accordance with the terms of Jimenez’s plea

agreement. This appeal followed.

                                           DISCUSSION

       Jimenez contends the absence of a complete reporter’s record for this appeal entitles him to

a new trial. He bases his contention on the lack of a reporter’s record for the hearing the Honorable



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Pat Priest supposedly conducted on his “Motion to Enforce Plea Bargain Agreement.” Jimenez

maintains he is not at fault for the absence of this portion of the reporter’s record and notes he has

exercised due diligence in attempting to secure the reporter’s record of this hearing. Jimenez argues

Texas Rule of Appellate Procedure 34.6(f) requires this court to grant him a new trial given the

circumstances presented. We respectfully disagree.

        Under Rule 34.6(f), an appellant is entitled to a new trial under the following circumstances:

        (1) if the appellant has timely requested a reporter’s record;

        (2) if, 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 or – if the proceedings
        were electronically recorded – a significant portion of the recording has been lost or
        destroyed or is inaudible;

        (3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or
        destroyed exhibit, is necessary to the appeal’s resolution; and

        (4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be
        replaced by agreement of the parties, or the lost or destroyed exhibit cannot be
        replaced either by agreement of the parties or with a copy determined by the trial
        court to accurately duplicate with reasonable certainty the original exhibit.

TEX . R. APP . P. 34.6(f). This rule, by its plain wording, applies only to situations in which a portion

of the proceeding was recorded but was later lost or destroyed. Williams v. State, 937 S.W.2d 479,

486 (Tex. Crim. App. 1996). If the complaining party cannot show a court reporter ever recorded

the missing proceedings, he is not entitled to a new trial under the rule. Id.

        Here, Jimenez surmises from Judge Richardson’s comments during sentencing that Judge

Priest presided over a hearing on his “Motion to Enforce Plea Bargain Agreement.” Jimenez’s mere

surmises, however, are insufficient to convince us Judge Priest ever held a hearing on his motion.

The record from Judge Richardson’s April 7, 2008 plea hearing establishes that Richardson



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considered and denied Jimenez’s motion. The record before us indicates Jimenez’s motion to

enforce was both filed by Jimenez and considered by Judge Richardson on April 7, 2008, which was

the same day Jimenez had engaged in all of his plea negotiations with the State. At no time during

the April 7, 2008 plea proceeding did Judge Richardson, or any of the parties for that matter, indicate

that the motion would be heard in another proceeding involving Judge Priest.

       Judge Richardson:       Before you enter a plea on this offense you are entitled to
                               legal and conditional rights. They are all explained in a
                               document that I have called court’s admonishments and
                               defendant’s waiver. Before I direct you to the signature page,
                               there’s been a motion filed on your behalf entitled motion to
                               enforce plea bargain agreement. I’ve reviewed it. I’ll just ask
                               the State what their position on it is and then can rule on it.

       The State:              I don’t believe that the plea bargain agreements are contracts
                               in so far as there is no consideration given frankly either side.
                               I believe that the facts of that motion are true but I’d like to
                               state for the record that no actual plea bargain written
                               agreement had been filled out at that time. There was nothing
                               either party had signed off to so we would be in opposition to
                               it.

       Defense Counsel:        That is correct, Your Honor. There was nothing in writing
                               but we had – an offer was made. We had accepted the offer
                               and then after we had accepted before they drew up the offer,
                               they said [n]o, we’re not going to abide by it. We’re going to
                               instead give you this other offer. So they raised it from a cap
                               of 12 to a cap of 15. All the other terms are the same that are
                               included in the current plea bargain.

       Judge Richardson:       As I understand the law and I wish I could be wrong on this
                               but it is a written pretrial motion that’s being filed at this
                               time.

       Defense Counsel:        That is correct, Judge.

       Judge Richardson:       I don’t believe legally I can enter plea negotiations. I think
                               I’m strongly discouraged from it. The Code of Judicial
                               Conduct prohibits me from doing that so I don’t think I’m in


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                                     a position to force the State to make any type of
                                     recommendation, so I’m going to deny the motion. If I’m
                                     wrong on that, it’s for appeal and the fourth court can send it
                                     back to me and tell me what to do.

At the conclusion of the hearing, the trial court accepted Jimenez’s plea of guilty and adjourned the

case until Jimenez’s sentencing date, which is the first time a proceeding involving Judge Priest is

mentioned.

         While we recognize Judge Richardson’s comments at Jimenez’s May 7, 2008 sentencing

hearing refer to Judge Priest as having denied the motion to enforce, it appears Judge Richardson

simply deferred to the State’s recollection about who presided over the proceeding concerning

Jimenez’s motion. In addition to reviewing the reporter’s records from April 7, 2008 and May 7,

2008, we have reviewed the remaining portions of the record and docketing statement for the case.

Nothing in the record presented, other than the comments at Jimenez’s sentencing hearing, indicates

Judge Priest played any role in the denial of Jimenez’s motion. Because we believe the record

affirmatively demonstrates Judge Priest did not conduct any proceedings in connection with

Jimenez’s “Motion to Enforce Plea Bargain Agreement,” we conclude the appellate record is

complete for purposes of appeal. Accordingly, we hold Jimenez is not entitled to a new trial under

rule 34.6(f).1

                                                   CONCLUSION

         The judgment of the trial court is affirmed.

                                                                 Catherine Stone, Chief Justice

DO NOT PUBLISH


         1
           Alternatively, Jimenez encourages this court to remand the cause to the trial court for entry of fact findings
on whether Judge Priest actually held a hearing on his motion. W e decline Jimenez’s invitation to remand the cause for
fact findings for the same reason we have rejected Jimenez’s request for a new trial.

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