AFFIRMED; Opinion Filed April 11, 2014.




                                         S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-00860-CR

                     RONALD PETER GRINDHEIM, Appellant
                                               V.
                          THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 6
                                    Dallas County, Texas
                            Trial Court Cause No. F04-48306-X

                               MEMORANDUM OPINION
                           Before Justices Moseley, Francis, and Lang
                                  Opinion by Justice Moseley

       Ronald Peter Grindheim appeals the trial court’s judgment revoking his community

supervision and sentencing him to six years’ confinement for felony driving while intoxicated.

In a single issue, appellant contends the appellate record is missing an exhibit crucial to his

appeal and that a new trial is required. The background of the case and the evidence adduced at

trial are well known to the parties; thus, we do not recite them here in detail. Because all

dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a),

47.4. We affirm the trial court’s judgment.

       An appellant is entitled to a new trial under certain conditions, one of which is that

“without appellant’s fault, a significant exhibit or a significant portion of the court reporter’s

notes and records has been lost or destroyed.” TEX. R. APP. P. 34.6(f)(2); Johnson v. State, 151
S.W.3d 193, 196 (Tex. Crim. App. 2004). However, a court reporter’s notes and records can be

considered “lost” only if the missing portions of the appellate record are irretrievable. Johnson,

151 S.W.3d at 196.

       Here appellant complains his judicial confession is lost. The reporter’s record indicates

the confession was admitted at the revocation hearing, but it is not contained as an exhibit in the

reporter’s record. We abated this appeal and requested the trial court make findings of fact

regarding the missing exhibit.

       The trial court made, and we adopted, the following findings: (1) State’s Exhibit no. 1 is

at pages 56 and 57 of the clerk’s record; (2) the document includes language that the judicial

confession incorporates by reference the allegations made against appellant in the motion before

the court; and (3) the trial court discerned nothing to indicate the clerk’s record lacks any other

document that should be included regarding the revocation hearing.

       Based on the trial court’s findings, we conclude the exhibit is not irretrievable; it is in fact

included in the clerk’s record. See id. Therefore, we conclude the exhibit is not lost or destroyed.

See TEX. R. APP. P. 34.6(f). Accordingly, we overrule appellant’s issue.

       We affirm the trial court’s judgment.




                                                       /Jim Moseley/
                                                       JIM MOSELEY
                                                       JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
130860F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

RONALD PETER GRINDHEIM, Appellant                      On Appeal from the Criminal District Court
                                                       No. 6, Dallas County, Texas
No. 05-13-00860-CR         V.                          Trial Court Cause No. F04-48306-X.
                                                       Opinion delivered by Justice Moseley.
THE STATE OF TEXAS, Appellee                           Justices Francis and Lang participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 11th day of April, 2014.




                                                       /Jim Moseley/
                                                       JIM MOSELEY
                                                       JUSTICE




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