      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00460-CR




                             Brandon Dewayne Johnson, Appellant

                                                  v.

                                   The State of Texas, Appellee



     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
           NO. 20,293-CR, HONORABLE ED MAGRE, JUDGE PRESIDING



               A jury found appellant Brandon Dewayne Johnson guilty of aggravated kidnapping,

for which the district court assessed punishment at twenty years’ imprisonment. See Tex. Pen. Code

Ann. § 20.04 (West Supp. 2002). Appellant contends he is entitled to a new trial because the court

reporter failed to record certain bench conferences during jury selection. We will overrule this

contention and affirm the conviction.

               After the jury panel entered the courtroom and was sworn, the court welcomed the

panelists and began discussing the qualifications for jury service.


       THE COURT: I’m going over the qualifications for jury service. As I read these
                  qualifications if you feel you are unqualified, raise your hand and
                  when I finish reading the list then step up to the bench and we’ll
                  discuss whether or not you are qualified or disqualified.

       (Statutory Qualifications Read)

       THE COURT: If any of you feel you don’t meet any of those qualifications, raise your hand
                  and I’ll bring you up to the bench one at a time.
                        First row? Second row?

       JUROR:           I take a medication for pain.

       THE COURT: We’ll get to excuses later. These are just qualifications. If you’ve
                  got an excuse and have to be here or there, you’re a hundred and ten
                  years old, you’ve got seventeen kids at home – tell me those later.
                  Right now, I just want to know if you’re a qualified juror.

                        The gentleman in the back row. Do you want to step up here?

       (Off Record Discussion)

       THE COURT: Number 114 is excused.

                        Were there other hands? The gentleman on the third row.

       (Off Record Discussion)

       THE COURT: Number 76 is excused.

                        Anybody on the fourth row?

                        The lady on the last row. You may step up here.

       (Off Record Discussion)

       THE COURT: Number 38 is excused.

                        Any other hands? Yes, sir.

       (Off Record Discussion)

       THE COURT: All right. No other hands?


At this point, the court turned to the subject of exemptions from jury duty.

               Appellant contends that appellate rule 13.1 was violated because the court reporter

failed to make a record of the four bench conferences noted above. Tex. R. App. P. 13.1. Rule 13.1



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requires the court reporter to “attend court sessions and make a full record of the proceedings unless

excused by agreement of the parties.” Id. rule 13.1(a). Appellant argues that because the parties had

not agreed to dispense with the recording of the bench conferences, the reporter’s failure to make a

record of the conferences was error. Appellant relies on the opinion in Tanguma v. State, 47 S.W.3d

663, 673-74 (Tex. App.—Corpus Christi 2001, pet. ref’d). The court held in that case that under rule

13.1(a), it is error for a court reporter to fail to record a bench conference that occurs after trial

proceedings have begun without the explicit agreement of the parties. Id. at 674. The court ruled

that case law interpreting a predecessor rule, holding that a defendant must object to the reporter’s

failure to record proceedings in order to preserve the issue for appeal, was not applicable to violations

of rule 13.1(a) and that the error was not waived by the defendant’s failure to object. Id. But see

Polasek v. State, 16 S.W.3d 82, 88-89 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (rule

13.1(a) conflicts with Tex. Gov’t Code Ann. § 52.046 (West 1998) and is void).

                Assuming without deciding that rule 13.1(a) was violated and that appellant did not

forfeit his right to complain on appeal by failing to object at trial, we must decide if the error requires

that appellant’s conviction be reversed. Appellant argues that the error defies harm analysis because

it is impossible to determine whether prejudicial error occurred during the unrecorded conferences.

He asserts that the failure to record the conferences should be deemed reversible error as a matter

of law. We disagree.

                Except for certain federal constitutional errors labeled by the United States Supreme

Court as “structural,” no error is categorically immune to a harmless error analysis. Cain v. State,

947 S.W.2d 262, 264 (Tex. Crim. App. 1997). A structural error is a constitutional deprivation



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affecting the framework within which the trial proceeds, rather than simply an error in the trial

process itself. Arizona v. Fulminante, 499 U.S. 279, 310 (1991). The failure of the court reporter

to record a bench conference is not a structural error. Tanguma, 47 S.W.3d at 675; see Fulminante,

499 U.S. at 309-10 (listing errors deemed structural). To the contrary, it is a procedural defect or

irregularity that must be disregarded unless a substantial right was affected. Tanguma, 47 S.W.3d

at 676; see Tex. R. App. P. 44.2(b).

               During the first three unrecorded bench conferences, three panelists were excluded

from jury service on the basis of a statutory disqualification. During the last unrecorded conference,

a panelist was apparently determined to be qualified for service. If the failure to record the bench

conferences harmed appellant, it was in depriving him of a record adequate to show error in the

court’s rulings. But appellant, who was present with counsel, did not object when panelists 114, 76,

and 38 were disqualified, nor did he object when the fourth panelist interviewed at the bench was

deemed qualified for service. Independent of any duty imposed on the court reporter by rule 13.1(a)

to record the bench conferences, it was appellant’s duty to object to any improper ruling by the trial

court regarding the qualifications for jury service. See Tanguma, 47 S.W.3d at 678 (reporter’s failure

to record bench conferences did not excuse defendant from duty to properly preserve error in rulings

on challenges for cause); Tex. R. App. P. 33.1; see also Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim.

App. 1999) (defendant must timely object or show significant harm from service by disqualified

juror); Ladd v. State, 3 S.W.3d 547, 562 (Tex. Crim. App. 1999) (failure to object when panelist

excused for cause forfeits issue on appeal); Mays v. State, 726 S.W.2d 937, 950 (Tex. Crim. App.

1986) (failure to object when panelist excused for economic hardship forfeits issue on appeal).



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                Appellant did not object to the district court’s rulings regarding the qualifications of

the four panelists interviewed by the court during the unrecorded bench conferences. He does not

contend that a panelist was erroneously determined to be disqualified, or that this ruling deprived him

of a lawfully constituted jury. See Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998)

(erroneous excusing of panelist is reversible only if defendant deprived of lawfully constituted jury).

Neither does he contend that a disqualified juror sat on the jury to his significant harm. See Mayo,

4 S.W.3d at 12. Under the circumstances, the failure of the court reporter to record the four bench

conferences at which the court heard and ruled on the panelists’ qualifications for service, if error,

did not affect appellant’s substantial rights.

                We resolve the issues raised by appellant against him, and we affirm the judgment of

conviction.




                                                 Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: April 18, 2002

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