COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EDITH ROMAN,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

§

§

§

§

§

§ 

No. 08-13-00066-CR

Appeal from the

Municipal Court of Appeals 

of El Paso, Texas

(TC# 12-MCA-3603A)

O P I N I O N

Pro se Appellant Edith Roman appeals an El Paso Municipal Court of Appeals (“El Paso 

MCA”) order affirming her conviction in the City of El Paso Municipal Court (“El Paso 

Municipal Court”) on one count of failure to maintain financial responsibility under the Texas 

Traffic Code. In two issues, Appellant argues that the El Paso Municipal Court’s purported 

failure to provide her with the reporter’s record from the guilt-innocence phase of trial rendered 

the record “lost” for purposes of the Texas Rules of Appellate Procedure, entitling her to a new 

trial. In the alternative, Appellant contends that the El Paso MCA violated her due process and 

equal protection rights as an indigent defendant by affirming her conviction without ensuring she 

had constitutionally adequate access to her appellate record. For the following reasons, we 

affirm.
2

BACKGROUND

In the Trial Court

On June 28, 2012, Appellant appeared pro se before El Paso Municipal Court Judge 

Maximiliano Munoz to contest a traffic citation she received for Failure to Maintain Financial 

Responsibility. She requested and received a trial by jury. At trial, the assistant city attorney 

called Officer Berkeley Hatch, the traffic officer who issued the citation, as its sole witness. 

Officer Hatch testified that Appellant was pulled over for having a broken headlamp on her car. 

Officer Hatch further testified that Appellant did not provide any insurance information when 

asked, which led to the citation at issue. Appellant cross-examined Officer Hatch on police 

discretion in giving traffic citations and on his memory of the specific event and other traffic 

citations he had issued. Appellant did not testify or present witnesses on her own behalf. The 

jury found Appellant guilty and assessed a fine of $500.00 plus court costs. The municipal trial 

court then entered judgment on the verdict. Appellant applied for and received a waiver of the 

appeal bond and filing fee from the trial court, then appealed to the El Paso MCA.

Before the El Paso MCA

Before the El Paso MCA, Appellant requested that Judge Odell Holmes order the trial 

court to provide her with the reporter’s records for this and two related appeals.1 When she 

received the volumes, Appellant moved for a new trial under TEX.R.APP.P. 34.6(b), contending 

that she could not effectuate an appeal on the issues of legal sufficiency and improper comments 

by the trial court because she never received the reporter’s record volume from the guiltinnocence phase of her trial in this cause. The El Paso MCA issued an opinion denying her 

request for a new trial, stating that although the guilt-innocence phase transcript indicated that 

 

1 The related appeals filed with this Court are styled Edith Roman v. The State of Texas, 08-13-00018-CR, and Edith 

Roman v. The State of Texas, 08-13-00019-CR.
3

certain portions of trial testimony were inaudible, the evidence presented therein was sufficient 

to sustain her conviction. See Roman v. State, No. 12-MCA-3603A (El Paso Mun.App.Ct., El 

Paso, Tex., Dec. 12, 2012)(unpublished). Appellant moved for rehearing, stating that the El Paso 

MCA has misconstrued her request and arguing (1) that she still did not possess a copy of the 

guilt-innocence transcript, and (2) that rendition of judgment when she did not have access to the 

complete appellate record would violate her due process and equal protections rights as an 

indigent appellant. In its opinion on rehearing, the El Paso MCA held that it was “satisfied that 

those records were made available to Appellant, and in fact, reviewed by her.” See Roman v. 

State, No. 12-MCA-3603A (El Paso Mun.App.Ct., El Paso, Tex., Jan. 23, 2013)(Op. on 

reh’g)(unpublished).

Before the Eighth Court of Appeals

On July 19, 2013, Appellant filed a Motion for Constitutionally Adequate Access of 

Appellate Record and Opportunity to File Brief with this Court. We granted her motion in part, 

permitting her to view the appellate record on the premises of the Eighth Court of Appeals. 

However, we denied her request for leave to submit supplemental briefing, noting that under 

TEX.GOV’T CODE ANN. §30.00027(b)(1)(West Supp. 2013), our review is statutorily restrained 

to only those records and briefs submitted to the El Paso Municipal Court of Appeals.

Following her review of the record, Appellant filed a Notice Regarding Appellant’s 

Review of the Appellate Record on October 4, 2013, with this Court. In the notice, Appellant 

again moved for a new trial on the grounds that six reporter’s record volumes appear in this 

Court’s files for her three companion appeals, whereas she allegedly only received five from the 

trial court. In support of her claim, Appellant referenced an e-mail she presented to the El Paso 

MCA that she received from Stanley Cooper of the El Paso Municipal Clerk’s Office, who 
4

verified that she received five volumes of reporter’s records from her three trials. She 

complained that her due process and equal protection rights were violated because “[a]ll five 

volumes received by Appellant were bundled together, without rhyme or reason, could not be 

readily identified, are missing huge portions, are unclear, contain numerous inaudibility instances 

(in excess of the normal) [sic] and are just unusable in that condition. Yet before the Court of 

Appeal [sic] there appear 6 volumes, determinably placed in the order best suited for the sake of 

convenience and appearance.” She also raised an additional complaint for the first time before 

this Court, contending that the trial judge erred by failing to grant a mistrial when a biased juror 

“ended up on the jury due to misrepresentations and misconduct . . . [that] had been brought up 

repeatedly to the judge.”

DISCUSSION

In reviewing the documents she filed with the El Paso MCA, we determine that Appellant 

has raised two issues on appeal before this Court. We address each issue in turn.

New Trial under TEX.R.APP.P. 34.6

In Issue One, Appellant contends we should grant her a new trial under TEX.R.APP.P.

34.6 because she never received a copy of the guilt-innocence phase of the reporter’s record, 

rendering it “lost” or “destroyed” for purposes of the Rule. We disagree.

“Except as modified” by the Uniform Municipal Courts of Record Act, TEX.GOV’T CODE 

ANN. §§ 30.00001-30.00164 (West 2004 & Supp. 2013), and the El Paso Courts Act, TEX.GOV’T 

CODE ANN. §§ 30.00122-30.00164, “the Code of Criminal Procedure and the Texas Rules of 

Appellate Procedure govern the trial court cases before the municipal courts of record” in the 

City of El Paso. TEX.GOV’T CODE ANN. 30.00023; see also Ochoa v. State, 994 S.W.2d 283, 

285 (Tex.App.--El Paso 1999, no pet.)(applying Rules of Appellate Procedure in reviewing an 
5

appeal from the El Paso MCA). Rule 34.6 grants a defendant the right to a new trial if, inter 

alia, a reporter’s notes and records that were properly requested are lost or destroyed, not 

through the fault of the defendant. TEX.R.APP.P. 34.6. “A court reporter’s notes and records, or 

portions thereof, can be considered ‘lost’ only if the missing portions of the appellate record are 

irretrievable.” Johnson v. State, 151 S.W.3d 193, 196 (Tex.Crim.App. 2004). Here, the 

reporter’s record from the guilt-innocence phase appears in this Court’s file, and Appellant has 

been permitted on at least one occasion to view the reporter’s record on this Court’s premises. 

Apart from a few scattered words that the court reporter could not adequately transcribe from the 

recording, the reporter’s record appears to be a complete, readable, and useable document. 

Because Rule 34.6 governs the existence of records and not access to records that clearly exist, 

the Rule is inapplicable under these facts and a new trial is unwarranted.

Issue One is overruled.

Procedural Due Process and Equal Protection

In Issue Two, Appellant complains that the El Paso MCA violated her due process and 

equal protection rights as an indigent appellant by rendering a decision without ensuring she first 

had access to the purportedly missing reporter’s record volume so she could effectuate her 

appeal. Although we are restricted from considering arguments not briefed before the El Paso 

MCA by statute, see TEX.GOV’T CODE ANN. § 30.00027(b)(1), because Appellant’s claims 

implicate procedural due process issues with the municipal appeals process, we entertain her 

arguments in the interest of justice. However, since we cannot entertain any substantive 

arguments not properly briefed to the court below, we read Appellant’s motion as requesting 

abatement to allow her to fully develop arguments on legal sufficiency and improper judicial 

comment before the El Paso MCA. We deny this request.
6

In assessing Appellant’s procedural due process claim, we must first determine whether 

she had a predicate “constitutionally protected property or liberty interest at stake, and if so, what 

process is due to sufficiently protect that interest.” Martinez v. Texas Department of Protective 

& Regulatory Services, 116 S.W.3d 266, 271 (Tex.App.--El Paso 2003, pet. denied). An 

indigent criminal defendant on direct, non-discretionary appeal has the right to a free copy of his 

trial transcript under equal protection “if it is needed for an effective appeal or an effective 

defense.” Easily v. State, 248 S.W.3d 272, 276 (Tex.App.--Houston [1st Dist.] 2007, pet. 

ref’d)[Emphasis omitted]; see also Register v. Thaler, 681 F.3d 623, 625 (5th Cir. 2012)(citing 

Texas law). “At a minimum, due process requires notice and an opportunity to be heard at a 

meaningful time and in a meaningful manner.” Martinez, 116 S.W.3d at 271; see also Mathews 

v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). “Exactly what process 

is due in any given situation is measured by a flexible standard that depends on the practical 

requirements of the circumstances.” Martinez, 116 S.W.3d at 271. We balance three factors in 

marking the contours of procedural due process protection: (1) “the private interest affected by 

the state action;” (2) “the risk of erroneous deprivation of a constitutionally protected 

interest...and the likely benefit of any additional procedures;” and (3) “the government’s interest, 

including the fiscal and administrative burdens that additional procedural requirements would 

entail.” Id.

Here, we find that abatement for development of issues in the El Paso MCA is 

unnecessary, since Appellant already received all the process she was due. When the El Paso 

MCA did not address her argument regarding access to the guilt-innocence reporter’s record to 

her satisfaction in its first opinion, Appellant moved for rehearing on that same issue and 

received a response. Rehearing in the El Paso MCA was sufficient to allow Appellant to be 
7

heard on the issue for procedural due process purposes. See Martinez, 116 S.W.3d at 271 (due 

process given where party has opportunity to be heard on an issue). On rehearing, the El Paso 

MCA reviewed its records and made a finding that she had, in fact, received a copy of the guiltinnocence transcript. The El Paso MCA’s adverse ruling against Appellant does not mean that 

she was denied her constitutional rights. “Due process of law is not denied when the 

complaining party fails to support its claim in a hearing held for that purpose.” Gibraltar Sav. 

Ass’n v. Frankling Sav. Ass’n, 617 S.W.2d 322, 328 (Tex.Civ.App.--Austin 1981, writ ref’d 

n.r.e.).

Even assuming the truth of Appellant’s contention for the sake of argument, we find that 

additional process would not allow her to prosecute an effective appeal on the issues of legal 

sufficiency and improper judicial comment, as alleged in her El Paso MCA brief. The evidence 

presented at trial, when viewed in the light most favorable to the State, could have allowed a jury 

to find her guilty beyond a reasonable doubt. See Clayton v. State, 235 S.W.3d 772, 778 

(Tex.Crim.App. 2007)(setting out legal sufficiency standard). The arresting officer positively 

identified Appellant in open court, testified that he properly pulled Appellant over for having a 

broken taillight on her car, and stated that he gave Appellant a citation when failed to furnish 

proof of financial responsibility. Appellant cross-examined the officer, who was the sole witness 

in the trial, about his memory of the event and his ability to use discretion in deciding how and 

when to issue traffic citations. When a reasonable jury could find that each element of a charge 

is satisfied beyond a reasonable doubt, the evidence is legally sufficient to sustain a conviction 

and we are without power to disturb the jury’s verdict. Id. Further, in our review of the 

reporter’s record from the guilt-innocence stage of trial, we find no improper comments raising 

constitutional concerns from the trial judge. See generally Brown v. State, 122 S.W.3d 794, 797-
8

801 (Tex.Crim.App. 2003)(generally discussing types of improper judicial comments).

The benefit of expending limited judicial resources by abating and remanding for a 

hearing on the issue of access and development of additional grounds in the El Paso MCA would 

be minimal. See Martinez, 116 S.W.3d at 271 (“fiscal and administrative burdens” of process 

may be counterbalanced against risk of erroneous constitutional right deprivation and procedure 

benefit). We are satisfied that Appellant has received all process due to her, that her 

constitutional rights were adequately protected throughout the scope of her trial and appeal, and 

that her conviction is based on legally sufficient evidence.

Issue Two is overruled. We affirm the El Paso MCA’s judgment.

March 5, 2014

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)