                                      NO. 07-12-0060-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                          JULY 30, 2012


                                      RENE G. ESPINOZA,

                                                                 Appellant
                                                  v.

                                    THE STATE OF TEXAS,

                                                                 Appellee
                             _____________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

  NO. 2011-431,685; HONORABLE JOHN J. "TREY" MCCLENDON, III, PRESIDING


                                    Memorandum Opinion


Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

      Rene G. Espinoza appeals his conviction of aggravated sexual assault of a child

by contending the trial court erred in denying his motion to have an audiovisual

recording made of the trial testimony. We affirm the judgment.

      Immediately prior to voir dire of the jury panel, appellant moved to have an

audiovisual recording made of the trial testimony. He thought it was needed because

appellant, as well as several of the witnesses, were hearing impaired. Without it, “. . .
      1
       John T. Boyd, Senior Justice, sitting by assignment.
there is no record of what was said in sign language during the trial” and “the video tape

makes it possible to assess the competence of the interpreter and exactly what the

interpreter signed.” The court took the motion under consideration, expressed concern

over its untimeliness, and questioned the court’s ability to arrange for it on such short

notice. The motion was denied the next day before the presentation of testimony.

       Article 38.31 of the Code of Criminal Procedure provides that “[o]n the court’s

motion or the motion of a party, the court may order testimony of a deaf witness and the

interpretation of that testimony by the interpreter visually, electronically recorded for use

in verification of the transcription of the reporter’s notes.” TEX. CODE CRIM. PROC. ANN.

art. 38.31(a) (West Supp. 2011). The use of the word “may” in the statute means the

decision lies within the trial court’s discretion. Hawkins v. State, 792 S.W.2d 491, 496

(Tex. App.–Houston [1st Dist.] 1990, no pet.); see also In re Minnick, 653 S.W.2d 503,

508 (Tex. App.–Amarillo 1983, no writ) (stating that statutory use of the word “may”

creates a discretionary function and not a mandatory one). Moreover, the Hawkins

court found no abuse of discretion when the defendant did not contend on appeal that

the reporter’s notes were inaccurate. Id. As in Hawkins, appellant here did not contend

that the reporter’s record was inaccurate.       Instead, he asserted that he could not

determine if it was without a visual recording of what was being signed. See also

Routier v. State, 112 S.W.3d 554, 569 (Tex. Crim. App. 1994) (stating that a global

complaint of inaccuracy in the record without specific examples is not sufficient for the

court to conclude that the record is inaccurate).

       Nor does he address whether the trial court had the ability of complying with the

motion on such short notice. The belated nature of appellant’s request and the ability to

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do that asked under the circumstances are indicia worthy of consideration when

assessing the validity of the trial court’s ruling.

       Finally, a record of the trial was provided appellant.         And, as previously

mentioned, he does not attack its accuracy. So, he had available to him materials with

which to urge an appeal. They may not have been in the format he wanted, but an

apparently complete record was nonetheless at his disposal.           That also tends to

differentiate the situation before us from those encompassed by Texas Rule of

Appellate Procedure 34.6(f). While the latter exists to remedy the consequences of a

lost or destroyed record, there was a record here.

       Accordingly, in view of the circumstances discussed above, we overrule the issue

and affirm the judgment.



                                                      Brian Quinn
                                                      Chief Justice



       Do not publish.




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