      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-05-00794-CR
                                       NO. 03-05-00795-CR
                                       NO. 03-05-00796-CR
                                       NO. 03-05-00798-CR
                                       NO. 03-05-00799-CR



                                 Ryan Andrew Garza, Appellant


                                                  v.


                                   The State of Texas, Appellee




   FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
         NOS. A-05-0006-S, A-05-0513-S, A-05-0929-S, A-05-0930-S, B-05-0155-S,
               HONORABLE BEN WOODWARD, JUDGE PRESIDING



                                           OPINION


               Ryan Garza was charged with five crimes under five different cause numbers and pled

guilty to each crime. On appeal, he contends that the court reporter failed to make a complete record

of the trial court proceedings and, therefore, denied him a complete record for the purposes of appeal.

See Tex. R. App. P. 13.1(a). Further, he asserts that the error was harmful and that, accordingly, his

conviction should be reversed and remanded for a new trial. We will affirm his conviction.
                                           BACKGROUND

                Garza does not contest the sufficiency of the evidence supporting his verdict, so we

will only briefly recite the facts of this case. Garza was indicted for the offenses of tampering with

evidence, theft of a firearm, engaging in organized criminal activity, and two deliveries of a

controlled substance. Garza pled guilty to each crime.

                According to the official reporter’s record, the following exchange occurred during

trial:


         THE COURT:        Okay. Mr. Garza, based upon the evidence I have heard, as well
                           as your guilty plea, in cause Number A-05-0513-S, I’m going to
                           find you guilty of tampering with evidence, a third degree felony
                           committed February 28th, 2005.

         DEFENDANT’S
         COUNSEL:    May we approach, Your Honor: I’m sorry to interrupt you.

         THE COURT:        Yes.

         (At the Bench, off the Record.)

         THE COURT:        All right. Your attorney has reminded me that you could be
                           eligible for deferred adjudication. And so I am going to withdraw
                           my finding of guilt in that one case and I am not going to make
                           any decisions as to guilt or innocence at that time.

                           We are going to have one hearing. We’ve already heard evidence
                           as to guilt or innocence but we are going to continue that Hearing
                           and hear evidence as to what your punishment should be. After
                           that I will decide whether to find you guilty of these cases or to
                           put you on deferred adjudication.

                           In each of these cases there is evidence to substantiate your guilt,
                           and I will determine whether to defer that adjudication later or to


                                                  2
                           make that determination at this time. Do you understand what I
                           am doing?

       THE DEFENDANT: Yes, sir.

       THE COURT:          Okay. Any objections with that from the State?

       STATE’S
       COUNSEL:            No, Your Honor.


               Ultimately Garza was not given deferred adjudication and was adjudged guilty in each

cause. Garza was sentenced to six years’ imprisonment for the tampering offense, two years’

imprisonment for the theft offense, six years’ imprisonment for the organized criminal activity

offense, and eleven years’ imprisonment for each delivery of a controlled substance.


                                           DISCUSSION

               Garza appeals the judgment of the district court, contending that the court reporter’s

failure to record the bench conference was error under rule 13.1(a) of the rules of appellate procedure

and that his conviction should be reversed.

               Rule 13.1(a) of the rules of appellate procedure provides as follows:


       The official court reporter or court recorder must:

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


Tex. R. App. P. 13.1(a).

               Garza’s argument relies on a split in authority regarding the scope of rule 13.1(a).

Some appellate courts have concluded that the failure of a court reporter to record portions of trial

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proceedings constitutes error because rule 13.1(a) requires the court reporter to make a record unless

the parties agree otherwise. See Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 161

(Tex. App.—Texarkana 2005, no pet.); Smith v. State, 114 S.W.3d 66, 70 (Tex. App.—Eastland

2003, pet. ref’d);Tanguma v. State, 47 S.W.3d 663, 674 (Tex. App.—Corpus Christi 2001, pet.

ref’d).

                 However, this Court has previously disagreed with this conclusion. See Guzman v.

State, No. 03-02-00040-CR, 2002 Tex. App. LEXIS 6333, at *5-6 (Tex. App.—Austin August 30,

2002, no pet.) (not designated for publication). In Guzman, this Court noted that the requirement

in rule 13.1(a) that a court reporter attend all court sessions unless the parties agree otherwise

conflicts with the requirements of section 52.046 of the government code. Id. at *6 n.3. Section

52.046 of the government code provides, in relevant part, as follows:


          (a) On request, an official court reporter shall:

              (1) attend all sessions of the court;

              (2) take full shorthand notes of oral testimony offered before the court,
                  including objections made to the admissibility of evidence, court
                  rulings and remarks on the objections, and exceptions to the rulings;

              (3) take full shorthand notes of closing arguments if requested to do so
                  by the attorney of a party to the case, including objections to the
                  arguments, court rulings and remarks on the objections, and
                  exceptions to the rulings;

              (4) preserve the notes for future reference for three years from the date
                  on which they were taken; and

              (5) furnish a transcript of the reported evidence or other proceedings,
                  in whole or in part, as provided by this chapter.

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Tex. Gov’t Code Ann. § 52.046(a) (West 2005) (emphasis added). We stated in Guzman that “[i]f

the rule is construed so that it is inconsistent with the statute, the rule must fall.” Guzman, 2002 Tex.

App. LEXIS 6333, at *6 n.3. Ultimately, this Court held that the trial court did not err in failing to

make a record of the defendant entering his plea because the right to have a written record of the plea

is a right that may be waived and Guzman signed a written waiver of this right. Id. at *5.

                Other courts have also concluded that rule 13.1(a) conflicts with section 52.046(a)

of the government code and, therefore, rule 13.1(a) yields to the requirements of section 52.046. See

Langford v. State, 129 S.W.3d 138, 139 (Tex. App.—Dallas 2003, no pet.); Washington v. State, 127

S.W.3d 111, 115 (Tex. App.—Houston [1st Dist.] 2003, no pet.).1 These courts further concluded

that if a party wants to have a court reporter record the proceedings, the party must make that request

under section 52.046. See Langford, 129 S.W.3d at 139; Washington, 127 S.W.3d at 115.

                Garza urges us to adopt the reasoning articulated in Taguma and conclude that the

court reporter’s failure to record the bench conference constituted error. Further, he contends that

the failure to record the bench conference constituted reversible error. In support of his contention

that reversible error is present in this case, Garza refers to Osborne v. State, 845 S.W.2d 319 (Tex.




        1
          The Houston Court has also expressly held that rule 13.1(a) was void because it enlarged
defendants’ substantive rights despite the mandate in the government code prohibiting rules from
modifying substantive rights of litigants. Polasek v. State, 16 S.W.3d 82, 89 (Tex. App.—Houston
[1st Dist.] 2000, pet. denied); see Tex. Gov’t Code Ann. § 22.108(a) (West 2004) (court of criminal
appeals may promulgate rules of procedure, but its rules may not abridge, enlarge, or modify
substantive rights of litigants). Specifically, the court concluded the rule changed the right to a court
reporter from a right that must be requested to a right that must be waived. Polasek, 16 S.W.3d at
88-89.

                                                   5
App.—Houston [1st Dist.] 1992, pet. ref’d), and Perez v. State, 824 S.W.2d 565 (Tex. Crim. App.

1992). However, his reliance on these two cases is misplaced.

               In Osborne, the court concluded that failure to grant a defendant’s request for a court

reporter is reversible error and that no harm need be shown. Osborne, 845 S.W.2d at 322. However,

the Osborne case involved the predecessor to rule 13.1(a). See former Tex. R. App. P. 11(a)(1).

Under that rule, a party was required to request the presence of a court reporter. In this case, Garza

was not denied the right to a court reporter after specifically requesting one be present.

               In Perez, the court stated that the failure to provide a complete record on appeal

“interferes with the judicial process by blocking an appellate court’s ability to assess the record of

a trial.” Perez, 824 S.W.2d at 568. The court further explained that, without a complete record to

assess the integrity of the verdict, there is no way to perform a harmless error analysis. Id. However,

in that case, the court reporter lost large portions of the record and the tape recordings of the

proceeding, preventing transcription of the missing parts. See id. at 566.

               Garza’s reliance on the Tanguma line of cases is similarly misplaced. In Valle v.

State, the court of criminal appeals determined that, even under rule 13(a), a party must object to the

fact that a court reporter did not record a bench conference in order to preserve error for appeal. 109

S.W.3d 500, 508-09 (Tex. Crim. App. 2003); see State v. Herndon, 115 S.W.3d 231, 234 (Tex.

App.—Corpus Christi 2003, pet. granted) (appellee did not object to failure to record bench

conference and, therefore, did not preserve error). Nothing in the record indicates that Garza made

this type of objection, and Garza does not complain on appeal that he actually made an objection.



                                                  6
Therefore, we conclude that Garza failed to preserve any error for appeal. See Valle, 109 S.W.3d

at 509.

               However, even if the error had been preserved, the failure of a court reporter to record

a bench conference is neither a structural error depriving a defendant of basic protections, nor is it

constitutional error. See Tanguma, 47 S.W.3d at 675-76. Accordingly, the error is subject to a

harmless error analysis and must be disregarded unless it affects an appellant’s substantial rights.

See Tex. R. App. P. 44.2(b) (nonconstitutional errors not affecting substantial rights must be

disregarded); see also Johnson v. State, 82 S.W.3d 471, 473 (Tex. App.—Austin 2002, no pet.)

(failure to record bench conference is procedural defect and must be disregarded unless it affects

appellant’s substantial rights).

               The bench conference occurred after the guilt innocence phase of the trial. After the

conference, the judge stated, “Your attorney has reminded me that you could be eligible for deferred

adjudication. And so I am going to withdraw my finding of guilt in [the tampering with evidence

case.] . . . [W]e are going to continue that Hearing and hear evidence as to what your punishment

should be. After that I will decide whether to find you guilty of these cases or to put you on deferred

adjudication.” As a result of the bench conference, the district court delayed entry of its finding of

guilt in light of the possibility of deferred adjudication. Therefore, based on this record, we conclude

that the unrecorded bench conference actually helped Garza and that no substantial right of Garza’s

was affected. Cf. Smith, 114 S.W.3d at 70 (no substantial right of appellant had been affected by

failure to record bench conference); Tanguma, 47 S.W.3d at 680 (same).

               Therefore, we overrule Garza’s issue on appeal.

                                                   7
                                          CONCLUSION

                  Having overruled appellant’s sole issue on appeal, we affirm the judgment of the

district court.




                                               David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 21, 2006

Publish




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