Amador, Justin ( 2007 )

IN THE COURT OF CRIMINAL APPEALS

                                    OF TEXAS

                                                                 NO. PD-0786-06

                                                   JUSTIN AMADOR, Appellant

                                                                             v.                                                    

                                                        THE STATE OF TEXAS

                   ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

MONTGOMERY COUNTY

Hervey, J., filed a dissenting opinion in which Keller, P.J., and Keasler, J., joined.

DISSENTING OPINION

I respectfully dissent.  I would decide that appellant had the burden under Rule 34.6(d) of the Texas Rules of Appellate Procedure to attempt to supplement the appellate record with the portions of the videotape that the trial court considered in denying appellant=s motion to suppress.^[1] Having failed to sustain this burden and having also taken affirmative steps to prevent the other party from taking on this burden, appellant should not now be heard to complain that the court of appeals assumed that the videotape supported the trial court=s ruling on an issue that appellant apparently did not even preserve for appeal.

Appellant raised the issue of probable cause for his arrest on direct appeal in the court of appeals.  See Amador v. State,     S.W.3d    , slip op. at 6 (Tex.Cr.App. No. PD-0786-06, delivered this date).^[2] The record reflects that, in denying appellant=s motion to suppress and his motion for reconsideration, the trial court relied in part on portions of Fountain=s patrol-car videotape apparently showing, among other things, appellant performing field sobriety tests.  Appellant did not produce an appellate record with the portions of the videotape that the trial court considered in making its ruling,^[3] and he took affirmative steps to frustrate the State=s efforts in making the videotape a part of the appellate record.  As I understand the Court=s opinion, appellant opposed the State=s efforts to supplement the appellate record with the videotape because it had never been formally introduced into evidence, not because the trial court may have considered only portions of it.^[4]

Under these circumstances, the court of appeals assumed that the videotape supported any ruling by the trial court that probable cause existed for appellant=s arrest.  See Amador, slip op. at 7-9.  This Court decides that the court of appeals erred to assume that the videotape supported any such ruling by the trial court and suggests that the court of appeals could on remand abate the appeal for supplementation of the record with portions of the videotape under the procedures set out in Rule 34.6(e).  See Amador, slip op. at 2, 9, 19.

It is a well-settled rule that there is a presumption of regularity in the trial court proceedings, absent a showing to the contrary by the appealing party.  See Light v. State, 15 S.W.3d 104, 107 (Tex.Cr.App. 2000) (presumption of regularity is a judicial construct that requires a reviewing court, absent evidence of impropriety, to indulge every presumption in favor of the regularity of the proceedings and documents in the lower court); Ex parte Wilson, 716 S.W.2d 953, 956 (Tex.Cr.App. 1986) (there is a presumption of the regularity of the judgment of conviction and the proceedings, absent a showing to the contrary).^[5] This requires the appealing party to present a record showing reversible error.  See Word v. State, 206 S.W.3d 646, 651-52 (Tex.Cr.App. 2006) (appealing party has burden to present a record showing reversible error).  The appealing party does not fulfill this burden by omitting relevant portions of the trial court proceedings from the appellate record.

By failing to make the relevant portions of the videotape a part of the appellate record, appellant could not sustain his burden in the court of appeals to overcome the presumption that the videotape supported the trial court=s ruling denying appellant=s motion to suppress.  The court of appeals, therefore, properly presumed that the videotape supported this ruling.  Cf. Ex parte Guzman, 589 S.W.2d 461, 464 (Tex.Cr.App. 1979) (since no statement of facts of juvenile=s examining trial were filed, reviewing court could presume that all procedural steps within the proceeding were complied with).

This Court=s decision in Rowell v. State^[6] is not to the contrary.  This Court in Rowell decided that the current rules of appellate procedure permit the appealing party to present a partial record and that these rules Aallow the parties to determine what is necessary for a record to be so complete as to enable the appellate court to decide the point of error.@  See Rowell, 66 S.W.3d at 282.  But, the partial record presented by the appealing party in Rowell showed reversible error, and it was complete enough so as to enable the appellate court to decide the substantive point of error presented on appeal.  See Rowell, 66 S.W.3d at 280-82; see also Word, 206 S.W.3d at 651-52 (appealing party has burden to present a record showing reversible error).  The record presented by the appealing party in Rowell did not omit anything relevant to this substantive point of error.  See Rowell, 66 S.W.3d at 280-81.^[7] Under Rowell, 66 S.W.3d at 282, the appealing party is required to present a record Aso complete as to enable the appellate court to decide the point of error.@  Appellant failed to do this when he made no attempt to make the relevant portions of the videotape a part of the appellate record.

Even if the State (rather than appellant) had a burden to make the videotape a part of the appellate record, the court of appeals could still have presumed that the videotape supported any ruling that probable cause existed for appellant=s arrest.  When, as here, a party affirmatively keeps the other party from supplementing the appellate record Ato be so complete as to enable the appellate court to decide the point of error,@^[8] that party should be estopped from complaining that the appellate court presumed that this missing part of the record supports the trial court=s ruling.  See Prystash v. State, 3 S.W.3d 522, 530-32 (Tex.Cr.App. 1999) (a party is generally estopped from complaining about an action that he induced).

Finally, the Court=s opinion suggests that the court of appeals could on remand abate the appeal for supplementation of the record with portions of the videotape under the procedures set out in Rule 34.6(e).  See Amador, slip op. at 19.  But, Rule 34.6(e) sets out procedures for correcting inaccuracies in the reporter=s record.  There was nothing inaccurate in the reporter=s record that appellant designated under Rule 34.6(b)(1) to be filed in the court of appeals.  This record was merely incomplete and did not Aenable the appellate court to decide the point of error.@  See Rowell, 66 S.W.3d at 282.  Rule 34.6(e) should not be applied to provide appellant with another opportunity to do what he should have done well before now and what he affirmatively prevented the other party from doing.  See George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice And Procedure '43.474 at 699 (2d ed. 2001) (AAppellate courts= power to abate is not general authority in the appellate judiciary to give appellants a second chance to do what they failed to do when the case was before the trial court@).

I respectfully dissent.

Hervey, J.

Filed:   April 25, 2007

Publish

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^[1]

Rule 34.6(d) allows for supplementation of the reporter=s record if it omits anything relevant that an appellant designates to be included in the reporter=s record under Rule 34.6(b)(1).  In this case, appellant did not designate any portions of the videotape to be included in the reporter=s record, so he arguably could not have supplemented it with these portions of the videotape under Rule 34.6(d). 

^[2]

The record, however, reflects that appellant did not raise this issue at the suppression hearing until the closing arguments.  See Amador, slip op. at 4.  The suppression hearing had focused on the validity of Fountain=s Acontinued detention of appellant after she wrote a warning ticket for speeding.@  See id.  Appellant=s motion for reconsideration also focused on this discrete issue.  See Amador, slip op. at 5-6.  On this record, I would decide that appellant forfeited any issue of probable cause for his arrest, because the other party and the trial court could reasonably have believed that appellant was not contesting that issue.  The Court=s opinion declines to address this preservation of error issue, even though the State raised it in the court of appeals and this Court has held that Apreservation of error is a systemic requirement.@  See Amador, slip op. at 8 (noting that the State claimed in the court of appeals Athat appellant forfeited his right to complain about the issue of probable cause on appeal because he had failed to litigate it in the trial court@), and slip op at 8 n.9 (suggesting that appellant failed to preserve issue of probable cause for his arrest, but declining to address that issue); Haley v. State, 173 S.W.3d 510, 515 (Tex.Cr.App. 2005) (Apreservation of error is a systemic requirement@).

^[3]

This was appellant=s burden under Rule 34.6(b)(1), which provides:

At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter=s record.  The request must designate the exhibits to be included.  A request to the court reporterBbut not the court recorderBmust also designate the portions of the proceedings to be included.

^[4]

See Maj. Op. at 7 (stating that appellant objected to State=s request to supplement record with videotape because it Ahad never been marked as an exhibit or formally introduced into evidnce in the trial court@); but see Maj. Op. at 15 (stating that appellant objected to State=s request to supplement record with the videotape because Athe trial judge did not view its entirety and thus the appellate court might consider portions of the videotape that were not actually viewed by the trial judge and not considered when he made his ruling@).

^[5]

See also Vega v. State, 707 S.W.2d 557, 559 (Tex.Cr.App. 1986); Stacy v. State, 819 S.W.2d 860, 863 (Tex.Cr.App. 1991) (Baird, J., dissenting) (Apresumption of regularity is a sound judicial construct@).

^[6]

66 S.W.3d 279, 282 (Tex.Cr.App. 2001).

^[7]

The appealing party in Rowell claimed that an affidavit in support of a search warrant was invalid.  See Rowell, 66 S.W.3d at 280-81.  The appealing party made the search warrant affidavit a part of the appellate record.  See id.  The appealing party did not omit the search warrant affidavit from the appellate record, and then claim that he should win on appeal.  See id.

^[8]

See Rowell, 66 S.W.3d at 282.