### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03- 05 -00 632 -CR

Je sse Edm on W as hing to n , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 403RD JUDICIAL DISTRICT NO. 2030 206 , HO NORAB LE B RENDA KENNEDY , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
The trial c ourt found appe llant J esse Edmon Washing ton guilty o f s tate-ja il felony possession of marihuana

and sente nced him to t wo y ear s imprisonment, probated for four y ear s. See Tex. Health & Safet y C o d e An n. § 481.121 (West 2003). On appe al, he r aises only one issue,
arguin g that he is e nti tle d to a ne w tri a l be c a

us e the re po rt e r’ s re c or d fr om a pr e tr ia l he ari ngon

his motion to s uppress is missing. See Te x. R. A pp . P. 34 .6 (f

). We a ff ir m th e tr ia l c ourt ’s jud g me nt. Washington filed a

motion to s uppress, and a hearing was held on the motion before J udg e Coronado on Ma

y 7, 2004. J udg e Coronado de nied the motion, and trial was he ld before Judg e Ke nn e dy

on May 5, 20 05 . A t tr ia l, Wa sh ing to n’s a tto rn e y c on du c te d e xten siv e c ro ssexamination of the arr esting office r reg arding the propriety of t he stop and a rgued that the stop wa s improp e r an d th at a ll e v id e n c e s e iz e d a s a r e s u lt s h o u ld b e s u p p r e s s e d
. Ju d g e K e n n e dy denied Washington’s motion and found him guilty of marihua

na possession. While this case was pe nding on appea l, we twice abate d it to the trial court, first for a hea ring to deter

mine whether

Washington2

wa nte d to purs ue his a

pp e a l and se c on d to de te rm ine wh e the r “ a ll g ro un ds fo r s up pr e ssi on and a ll evidenc e relevant to the s uppression issue ar e conta ined in the trial re cord,” noting that the r ecor d from the trial “re flec ts that the leg ality of the sear ch and seizure was litigated at Washing ton’s trial.”

At the f ir s t h e ar in g , h e ld

o nM ar c h3 0 , 2 0 0 6 , Wa s h in g to n ’ s a tt o r n e y a p p e ar e d and stated that he ha d not been a ble to locate the court re porter wh o m ade the rec ord for the pre trial suppression hea

ring . He state d, “Pretria l has g ot a g ood suppression issue, b u t I ’v e got to have a
rec ord to do it with.” The trial c ourt conc luded that Washington wa nt ed t o pursue his appe al and that counsel wa s diligently attempting to obtain a

complete r eporte r’s re cord. The sec ond hear ing was he ld on J une 12, and W as h i n gton’s attorney failed to a

ppear . At that hear ing, the trial court stated that “all pretria l matters wer e litigated fully , not only at the time of trial, but also by schedule d pretria l hear ings . . . . So this Court is of t he belief that all pretria l matters have been litig ated f ully .” The c ourt furthe r stated, “ based on its knowle dg e of this ca se as we ll as on conver sations with the State’s attorne y , who i s n o w p re s ent at thi s hear ing, that the suppression issue is a re -litigation of those issues raised at pretrial he aringpreviously .”

Rul e 34 .6 (f

) p ro vid e s th a t an a

pp ell ant is en tit le d to a

ne w t ri a l w he n a

tim e ly reque sted repor

ter’s r e c o r d

is lost or destroy ed if the missing rec ord comprise s a “sig nificant portion” of the re cord, the lost recor d cannot be repla ced by the agr eeme nt of t he parties, and the lost portion

“ is nece ssary to the appea l’s resolution.” Id . (empha sis added)
. I t is undisputed that a portion of the repor ter’s r ecor d is miss ing due to no fault of Washington’s, and the State conce des that we need not presume that the missing po rt i o n o f t h e re cord suppor ted the trial c ourt’s dete rmination. See Ro uti e r v . S

tate , 1 1 2 S
. W
. 3 d

5 5 4 , 5 7 0 -7 1 (T ex . C ri m . Ap p . 2 0 0 3 ) ( qu o t i n g Ga mb le v . S tate , 590 S. W
. 2 d 5 0 7 , 508 (Tex. Crim. App. 1979)) (whe n all or par t of rec ord is missing, circ umstancesThe State c ontends that Washington has not shown t h at h e diligently soug ht the rec ord. 1 Although Washing ton has not provided a de tailed re citation of his eff orts to obtain t h e missing re c or d, thi s Co ur

t in qu ir ed in to t

he status of

the re c or d a

nd “ c on fi rm e d th a t th e re c or d f ro m th is pretria l hear ing c annot be f ound.” W as hingto n v. Sta te , No . 0 3- 05 -0 06 32 -C R ( Te x. Ap p. —Aus tin Jan. 11 , 2 00 7) (s ho w c a

us e or de r) . T hu s, we wi ll a ssume that Was hin g ton dil ig e ntl y

a tte mpt e d to obtain a complete repor

ter’s recor d. The State a lso argues that Washington did not show that he a nd the State wer e unable to ag ree on the cont en t of the missing por tion. Due to our re solution of the “nec essity ” question, we need not a ddress this issue. 3 sh ou ld b e vie we d f

ro m de fe nd ant’ s st and

po int and re a so na ble do ub t r e so lve d in

his fa vo r) ; se e als o Ro we ll v . S

tate , 66 S.W .3d 279, 281-82 (Te x . Crim. App. 2001) (re j ec t i n g State’s ar g ument that
re c or d o mis sio n is pr e sume d to s up po rt tr ia l c ourt ’s ru lin g ; “ I t is no lon g e r n e c e ssa ry , o r s uf fi c ie nt, for a party to argue that the a

ppeal sh o u l d b e dec ided by hy potheses about missing por tions of the re cord.” ).

I n th is c a se , th e qu e st io n of the ne c e ssi ty of the mis sin g po rt ion

of the re c or d is dispositi ve of the appea l. I n asking whether a lost portion is necessa ry to the resolution of an 1 appea l, the court of c riminal appea ls has explained: Rule 34.6(f)( 3) specifies t hat a new trial may be gra nted onl y if the missing portion of the re cord “ is nece ssary to the appea l’s resolution.” That provision is i tself a ha rm analy sis. I f the missing por tion o f t h e re co rd is not nece ssary to the appea l’s resolution, then the loss of that portion of the rec ord is ha rmless under the rule, a

nd a ne w t r i a l i s n o tr e qu i r e d
. I ne n a c t i n g t h a tp r o v i s i o no f t h e r u l e , w e n e c e ssari ly reje cted the c ontention that a missing rec ord could ne ver be found unnec essar y to an appea l’s resolution.
Is sa c v . S tate , 989 S.W .2d 754, 757 (Tex. Crim. App. 1999). The def endant has the burden of
s h o w in g th a t th e mi s s in g r e c o r d is n e c e s s ar y to th e r e s o luti o n o f th e a p p e a l. Doubra v a v . S

tate , 28 S.W .3d 148, 151 (Tex. App.—Eastland 2000, pet. r ef’ d).4 Although Washing ton asserts in h is b r ie f th a t “ [d ]e f e n s e c o u n s e l a d d r e ssed the cr itical issues at pretr ial and not e x tensively at trial on the merits” and that “[c]ounsel re lied on the re cord from the pr etrial at time of trial,” the r ecor d does not support his contentions. At the g uilt/i nnocenc e phase of trial, Washington did not ref er the court to any

arguments raised pr etri al and never e ven mentioned that the issue had been addre ssed pretria l be fore a differ ent judge
. I n his questioning of th e arrestin g of

fi c e r a nd his de fe ns ive argume nts , h e c on te nd e d th a t th e of fi c e r u nr e a so na bly extended the detention beyond the t ime nece ssary to addre ss the reasons for the stop—a defe ctive taillight and “license plate out”—and that Washing ton’s consent for the sea rch of his car w as involuntary . After

an ea rlier r eview of

the re cord, w e noted that arguments related t o suppression had bee n raised a

t trial and abate d the cause for a hear ing to de termine whe ther a ll releva nt evidence and ar g uments were “conta ined in the trial rec ord.” Counsel did not a ppear for that he aring , at which he could have attempted to show what arguments or evidenc e wer e not r aised at trial. The trial c ourt conclude d that “all pre trial m at t ers,” which included Washing ton’s suppression ar g uments, were fully litigated both pr etrial a

nd “at the time of

trial.” On a pp e a l, Wa sh ing ton

do e s n ot e xp lai n ho w the su pp re ssi on iss ue wa s n ot f

ull y explored a sec ond time at trial or attempt to explain what, if any , evidenc e or ar gu m en t s were considere d pretria l but not at guilt/innocence. I nstead, he simply states t hat counse l addre ssed the critica l i s s ues pre trial and “ not ext ensively at trial,” a

statement he doe s not support with any explanation or argument. Fur ther, the tria l court found that the issues w ere fully litigated at trial, and Washington does not dispute this finding. Finally , Washington does not eve n advanc e an a rgument on appea l that the evidenc e seized duringthe sea rch should be suppr essed.5 Es se nti a lly , Wa sh ing ton

sim ply po int s to the inc omp le te ne s s o f t h e r e c or d a

nd a sse rt s that this, by

itself, entitles him to a ne w trial. This c ase is similar to the fac ts presente d in Routier , in which the def

endant a sserted that prospective jur ors might have bee n g iven er roneous instructions in the missing porti on of t he re cord but did not raise a point of er ror r eg ardingthe instructions g iven. 112 S.W .3d at 571. The c ourt of cr iminal appeals he ld:
Th e su g g e sti on

tha t in str uc tio ns may have be en er ro n eo u s , without more, does not make that por

tion of the rec ord nec essar y to he r appe al. Also, as the State notes, the ins tr uc tio ns g ive n to pr os pe c tiv e jur or s d ur ingthe mor

nin g se ssi on

we re vir tua lly id e n ti c a l t o th e in s tr

u c ti o n s g iv e nd

u r in g the a f

te r n o o ns e s s io n . A n d

Si mm o n s [a court re porter a

ppointed to reviewthe rec ord] testified that the af ternoon session that she hea rd o n t ap e wa s v ery

simil ar to the note s from the morningsession. The a pp ell ant has not

sh ow n th a t th e po rt ion

of the un c e rt if

ie d r e c or d d e a lin g wi th prospec tive jurors is nece ssary to her a ppeal. Id
. Th e tr ia l c ourt fo u n d a n d t h e r e c o r d r e f l e c t s that Wa sh ing ton ’s su pp re ssi on argume nts
wer e made at trial, as well as in the missing pretria l he aring
. Washington has not me t his burden of sh ow ingthat th e mis sin g re c or d is “ ne c e ssa ry to t he a pp e a l’ s r e so lut ion ,” and

we the re fo re ov e rr

ule his so le iss ue on

a pp e a l. We a ff

ir m th e tr ia l c ourt ’s jud g me nt.

__________________________________ _ _ _ _ _ _ _ __ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Pury ear and He nson Affir med Filed: August 31, 2007 Do No t Pu

bli sh