George Oscar Rodriguez v. State

NUMBER 13-03-00031-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG GEORGE OSCAR RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 344th District Court of Chambers County, Texas MEMORANDUM OPINION Before Chief Justice Valdez and Justices Hinojosa and Baird Memorandum Opinion by Justice Baird Appellant was charged by indictment with the offense of murder. A jury convicted appellant of the charged offense and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division. Shortly after his conviction, appellant filed a timely pro se notice of appeal which was misplaced by the district clerk’s office. Appellant subsequently filed an application for writ of habeas corpus seeking permission to appeal his conviction and sentence, and the Texas Court of Criminal Appeals granted permission to appeal. We affirm the judgment of the trial court. During appellant’s 1995 trial, thirty-eight exhibits were admitted into evidence. Appellant contends these exhibits “were lost, misplaced, or destroyed during the several year delay of the appeal thereby denying appellant a complete record for review. The rules as they existed at the time of Appellant’s conviction, as interpreted by the Texas Court of Criminal Appeals, require a new trial under these circumstances.” Rule 34.6(f) of the Texas Rules of Appellate Procedure, in effect since September 1, 1997, governs situations where a portion of the appellate record has been lost or destroyed. Issac v. State, 989 S.W.2d 754, 756-57 (Tex. Crim. App. 1999). Under that rule, an appellant is entitled to a new trial under the following circumstances: (1) if the appellant has timely requested a reporter's record; (2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or–if the proceedings were electronically recorded–a significant portion of the recording has been lost or destroyed or is inaudible; (3) if the lost, destroyed, or inaudible portion of the reporter's record . . . is necessary to the appeal's resolution; and (4) if the parties cannot agree on a complete reporter's record. Tex. R. App. P. 34.6(f) (emphasis supplied). In determining whether to apply former rule 50(e) which was in effect at the time of appellant’s trial, or current rule 34.6, we apply the latter unless application of the current rule would not be feasible or would work injustice. Order Approving the Texas Rules of Appellate Procedure, Misc. Docket No. 97-9134 (Tex. Crim. App.–August 15, 1997); Isaac, 989 S.W.2d at 756. In the instant case, we hold that applying the current rule is neither infeasible or unjust. Therefore, we will proceed under rule 34.6(f). The appellant must establish the missing portion of the record "is necessary to the appeal's resolution." Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003); Doubrava v. State, 28 S.W.3d 148, 151 (Tex. App.–Eastland 2000, no pet.). We conduct a harm analysis in determining if the missing record is necessary for the resolution of the appeal. If the lost or destroyed record is not necessary to the appeal's resolution, the loss of that portion of the record is harmless, and a new trial will not be required. Issac, 989 S.W.2d at 756-57. Importantly, the court reporter’s record is complete, only the exhibits are missing. This record contains a description of each of the thirty-eight missing exhibits. Appellant argues the exhibits are necessary “to determine if Appellant received effective assistance of counsel at trial.” Beyond this broad statement, appellant does not advance any claim of ineffective assistance of counsel. Therefore, we read appellant’s brief as presenting only the speculative argument that perhaps a claim of ineffective assistance of counsel could be raised if the exhibits were available to appellate counsel. We hold this argument is too tenuous to establish the exhibits are, in fact, necessary to any issue raised by this appeal. Accordingly, we hold the missing exhibits are unnecessary to this appeal's resolution. Isaac, 989 S.W.2d at 756-57. Therefore, appellant has not been harmed by their loss. Id. Consequently, application of rule 34.6(f) in this case does not work an injustice. Id. at 756. We overrule appellant's sole point of error. The judgment of the trial court is affirmed. CHARLES F. BAIRD Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 19th day of August, 2004.