                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

        ______________________________

              No. 06-08-00069-CR
        ______________________________


           BRENT ROSS PEEK, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 102nd Judicial District Court
              Red River County, Texas
              Trial Court No. CR01334




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                  MEMORANDUM OPINION

       Brent Ross Peek appeals his conviction for intoxication manslaughter, a second degree

felony, because the indictment and judgment reflected conviction of a first degree felony. He also

argues the court reporter's summary-form transcription was fundamental error. We reform the trial

court's judgment to reflect Peek's conviction of a second degree felony and hold that Peek waived

his right to complain about the court reporter's summary statements on appeal.

I.     Factual Background

       With a near-lethal blood-alcohol level of 0.29, Peek was driving a Suburban containing his

girlfriend and her baby when he lost control of the vehicle. The Suburban sped through a ditch,

plowed through a street sign, crashed through a fence, and flipped over five or six times before

resting on its roof. Peek's girlfriend and her baby were both ejected. While Peek's girlfriend

survived the accident, her baby was found lying face down in the ditch and was pronounced dead

at the scene. A LifeNet paramedic testified he believed the Suburban had rolled over the baby.

       Peek was charged with "intoxication manslaughter 1st Degree Felony" under Section 49.08

of the Texas Penal Code. A trial by jury resulted in his conviction. Peek pled true to enhancement

paragraphs in the indictment listing two final felony conviction cause numbers for driving while

intoxicated (DWI). Based on the enhancements, the trial court sentenced Peek to forty-one years'

imprisonment. The judgment of conviction erroneously listed intoxication manslaughter as a first

degree felony offense.



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        The transcript of the proceedings revealed that the court reporter used six summary

statements during the trial. Instead of including the names of the jurors, the court reporter only stated

"Jury seated." Rather than transcribing the oath given to the jury and witnesses, the court reporter

summarily transcribed "Jury sworn," "Witnesses sworn," and "Witness sworn."1 As a shortcut to

recording the substance of the indictment read to the jury, the reporter merely typed "Indictment

read." "Discussion at bench" was the only notation transcribed for bench conferences. Peek

contends this summary transcription was fundamental error.

II.     Standard of Review

        Whether intoxication manslaughter is a first or second degree felony is an issue of law.

Similarly, the determination of whether the court reporter's summary statements constituted

fundamental error requires no credibility determination. Since both issues are based on undisputed

facts, we will review de novo these issues of law. See generally Guzman v. State, 955 S.W.2d 85,

87 (Tex. Crim. App. 1997); Brossette v. State, 99 S.W.3d 277, 280 (Tex. App.—Texarkana 2003,

pet. dism'd, untimely filed).




        1
        In his brief, Peek claims that the "Reporter's Record does not reflect which witnesses were
sworn or even how many witnesses." However, before testimony of each of the nine witnesses, the
record includes the witness' name and the fact that they had been "duly sworn."

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III.    Analysis

        A.      We Reform the Final Judgment to Reflect Conviction for a Second Degree
                Felony

        In his first point of error, Peek contends he was erroneously indicted and convicted of a first

degree felony. Intoxication manslaughter is a second degree felony except in circumstances not

applicable here. TEX . PENAL CODE ANN . §§ 49.08(b), 49.09(b-2) (Vernon Supp. 2008). If it is

shown at trial for a second degree felony that the defendant had previously been convicted of another

felony, punishment can fall within the range prescribed for a first degree felony. TEX . PENAL CODE

ANN . § 12.42(b) (Vernon Supp. 2008); Williams v. State, No. 05-04-01681-CR, 2006 WL 121949,

at *3–4 (Tex. App.—Dallas, Jan. 18, 2006, no pet.) (not designated for publication). This procedure

was used to enhance Peek's punishment range and allowed for the imposition of a forty-one year jail

sentence. However, this procedure does not increase the level of the original offense. Thus, Peek's

first point of error is well taken.

        The State concedes this point and asks this Court to "reform the judgement of the trial court

to modify the degree of offense from a first degree felony to a second degree felony." The Texas

Rules of Appellate Procedure give this Court authority to reform judgments and correct

typographical errors to make the record speak the truth. TEX . R. APP . P. 43.2; French v. State, 830

S.W.2d 607, 609 (Tex. Crim. App. 1992); Battle v. State, No. 06-07-00148-CR, 2008 WL 482343,

at *3 (Tex. App.—Texarkana Feb. 25, 2008, no pet.) (mem. op., not designated for publication)

(reforming judgment to reflect proper statute under which defendant should have been convicted);


                                                  4
Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi 1982, pet. ref'd). We hereby modify

the trial court's judgment to reflect conviction of a second degree felony.

       B.      Peek Waived Error in Reporter's Record by Failing to Object at Trial

       In his next point of error, Peek contends fundamental error occurred when the court reporter

transcribed summary statements such as "Jury seated," "Jury sworn," "Indictment read," "Witnesses

sworn," "Witness sworn," and "Discussion at bench." A court reporter has a duty to record all

proceedings unless expressly waived. Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d

157, 161 (Tex. App.—Texarkana 2005, no pet.). However, the law is clear that error from a court

reporter's failure to make a record is waived unless objected to at trial. Valazquez v. State, 222

S.W.3d 551, 556–57 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Jones v. State, 942

S.W.2d 1, 2 (Tex. Crim. App. 1997) (objection required to preserve error stemming from failure to

transcribe voir dire proceedings); Rittenhouse, 161 S.W.3d at 161 (citing Valle v. State, 109 S.W.3d

500, 508–09 (Tex. Crim. App. 2003) (holding objection required to preserve error if bench

conference not recorded)); Brossette, 99 S.W.3d at 283–85 (referencing Williams v. State, 937

S.W.2d 479 (Tex. Crim. App. 1996)); see TEX . R. APP . P. 33.1(a) (requires objection at trial court

level as a prerequisite to presenting complaint for appellate review). Peek agrees with this well-

established law, and, citing Jones, 942 S.W.2d 1, also recognizes that the Texas Court of Criminal

Appeals "has specifically concluded a similar failure by the Court Reporter to transcribe the

proceedings was not fundamental error." Because the error created by the court reporter's summary



                                                 5
transcription is not fundamental and Peek failed to object at trial, he waived the error, and our

inquiry into this matter should end here.

       Nevertheless, Peek contends that "the Texas Court of Criminal Appeals was incorrect"

because the requirement to object is impossible to comply with since trial attorneys cannot "look at

the court reporter to see an absence of activity," and diagnose the problem where a reporter is

transcribing summary statements. This issue has been addressed before. In Valazquez, appellant's

argument that he was unaware the court reporter failed to record bench conferences was not

recognized as an exception to the rule requiring an objection at trial. 222 S.W.3d at 557 n.4.

Valazquez further pointed out "[e]ven assuming such an exception should be recognized, appellant

failed to cite any evidence to support his factual assertion that he was unaware, and he failed to

develop such a record with a motion for new trial." We have binding precedent from the Texas

Court of Criminal Appeals and our own decisions on this issue. Any change in the interpretation of

the law, in criminal cases, should come from the state's highest court exercising jurisdiction in

criminal law cases. We reject Peek's argument that we should make an exception to well-established

Texas precedent.

       Peek also contends that failure of the court reporter to include large portions of the trial

implicates a defendant's constitutional rights. In support of his position on this second point, Peek

cites Tedford v. Hepting, a federal Third Circuit case that held "a constitutional violation would

occur only if the inaccuracies in the transcript adversely affected" the outcome of the criminal



                                                 6
proceeding. 990 F.2d 745, 747 (3rd Cir. 1993). This is not a concept novel to the Third Circuit.

Rule 44.2 of the Texas Rules of Appellate Procedure specifies any error that does not affect

substantial rights must be disregarded. Even if constitutional error is involved, reversal is

unnecessary if "the court determines beyond a reasonable doubt that the error did not contribute to

the conviction or the punishment." TEX . R. APP . P. 44.2; Brossette, 99 S.W.3d at 285. Peek has not

pointed this Court to anything that suggests the procedure complained of affected the outcome of

Peek's trial, and our review of the record has revealed none. Peek's failure to object to the

nonfundamental error waived his right to complain about the court reporter's summary statements

on appeal.

IV.    Conclusion

       We hold that Peek waived his right to complain of the court reporter's summary transcription

on appeal. Since intoxication manslaughter is a second degree felony, we correct Peek's erroneous




                                                 7
first degree felony indictment and conviction of intoxication manslaughter by reforming the

judgment to reflect a conviction of a second degree felony offense. As reformed, we affirm the

judgment of the trial court.



                                           Jack Carter
                                           Justice


Date Submitted:        December 1, 2008
Date Decided:          December 4, 2008

Do Not Publish




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