Opinion
No. 05-10-00634-CR
Opinion Filed July 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 292nd Judicial, Dallas County, Texas, Trial Court Cause No. F08-63019-V.
Before Justices RICHTER, LANG, and FILLMORE.
OPINION
Juan Francisco Rodriguez pleaded guilty to felony driving while intoxicated (DWI). The trial court sentenced Rodriguez to two years' confinement. In three points of error, Rodriguez asserts that he has been deprived of a complete record on appeal because the court reporter failed to record plea proceedings in violation of his rights to due process and due course of law, and that, by not objecting to the court reporter's failure to record the plea proceedings, trial counsel provided ineffective assistance of counsel. As modified, we affirm the trial court's judgment.
Background
On November 14, 2008, Dallas police officer Carrol Clore observed a vehicle driven by Rodriguez weaving in and out of lanes of traffic and not maintaining a path in any single lane of traffic. Officer Clore also heard loud music coming from the vehicle, allegedly in violation of a city anti-noise ordinance. Officer Clore activated the emergency lights on his patrol car and initiated a traffic stop. When he approached the vehicle, Officer Clore smelled "the odor of alcoholic beverage emanating from inside the vehicle" and observed an open beer container in the back seat. Officer Clore requested that a member of the DWI squad come to the scene to subject Rodriguez to field sobriety testing. Officer Lawrence Christian arrived at the scene and conducted field sobriety tests that were recorded on video. Rodriguez was arrested and charged with DWI. Rodriguez filed pretrial motions to suppress the video recording of the field sobriety testing and all evidence seized subsequent to his arrest. On May 7, 2010, the trial court conducted a hearing and denied the motions to suppress. It is uncontroverted that immediately following the denial of the motions to suppress, Rodriguez signed a plea agreement and a judicial confession. The record contains no transcript of the May 7, 2010 plea proceedings (plea proceedings). The plea agreement signed by Rodriguez stated, "I waive and give up my right to have a court reporter make a record of these court proceedings as provided by Rule 13.1 of the Texas Rules of Appellate Procedure." The plea agreement was also signed as approved by Rodriguez's counsel, the prosecuting attorney, and the trial judge. On May 14, 2010, the trial court convened a hearing, transcribed by a court reporter, at which the court received additional evidence concerning the enhancement paragraphs of the indictment. At that hearing, the trial court indicated that in order to allow an appeal of the reopening of the evidence, the case would not proceed pursuant to the plea agreement. On that date, the trial court orally imposed a sentence of two years' confinement with no fine and signed a written judgment imposing a sentence of two years' confinement and a fine of $2000. Rodriguez appealed his conviction.Discussion
In his first point of error, Rodriguez asserts that the court reporter's failure to record the plea proceedings denied him a complete record for appeal. In his second point of error, Rodriguez asserts that application of the preservation-of-error rule under the holding of Valle v. State, 109 S.W.3d 500, 508 (Tex. Crim. App. 2003), violates his rights to due process and due course of law. See U. S. Const. amends. V, XIV, . 1; Tex. Const. art. I, . 19. Texas law permits a criminal defendant charged with a non-capital crime to waive any right, including a constitutional right. See Tex. Code Crim. Proc. Ann. art. 1.14(a) (West 2005); Walton v. State, 670 S.W.2d 310, 312 (Tex.App. .Houston [1st Dist] 1983, no pet.) ("Art. 1.14 permits the waiver of any right, except trial by jury in a capital case."). The Texas Rules of Appellate Procedure allow parties to agree to excuse a court reporter from the duty to make a full record of the trial court proceedings. Tex. R. App. P 13.1. In their briefs, both Rodriguez and the State discuss a possible conflict between the duties of a court reporter as described in the Government Code and the duties of a court reporter contained in the Rules of Appellate Procedure. Tex. Gov't Code Ann. . 52.046(a) (West 2005) (if requested to do so, a court reporter shall attend all sessions of the court and take notes of oral testimony and closing arguments, if requested to do so by the attorney of a party to the case, and furnish a transcript of the reported evidence or other proceedings); Tex R. App. P. 13.1(a) (The official court reporter or court recorder must, unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings). We need not address the arguments of the parties regarding a possible conflict between these provisions of the government code and rules of appellate procedure because the record in this case establishes that both parties affirmatively waived the right to have a court reporter record the plea proceedings. In this case, Rodriguez signed a waiver, which was approved by his counsel, the State, and the trial judge, waiving his right to have a court reporter record the plea proceedings. Having waived the right to have a court reporter record the proceedings, Rodriguez cannot now rely on the absence of a record to support a claim of violation of due process and due course of law. See McDougal v. State, 105 S.W.3d 119, 121 (Tex. App. .Fort Worth 2003, pet. ref'd) ("A criminal defendant may not waive the making of a record and then, on appeal, rely on the absence of evidence to support reversal of his conviction."); see also Odom v. State, 962 S.W.2d 117, 119 (Tex. App. .Houston [1st Dist.] 1997, pet. ref'd) (appellant contested voluntariness of plea; appellate court concluded that appellant's waiver of the right to have a court reporter transcribe proceedings does not violate due process). On this record, we conclude that the court reporter's failure to record the plea proceedings did not violate Rodriguez's right to due process and due course of law. We overrule Rodriguez's first and second points of error. In his third point of error, Rodriguez claims that his trial counsel provided ineffective assistance of counsel by not objecting to the court reporter's failure to record the plea proceedings. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). To satisfy his burden of proof, Rodriguez must show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below an objective standard of reasonableness and (2) that there is a reasonable probability that the result of the proceeding would have been different but for counsel's errors. Strickland, 446 U.S. at 669; Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). As discussed above, Rodriguez signed a plea agreement waiving any right to have a court reporter record the plea proceedings. See Tex. Code Crim. Proc. Art. 1.14(a) ("defendant in a criminal prosecution for any offense may waive any rights secured him by law"); see also Tex. R. App. P. 13.1(a) (court reporter may be excused from duty to record by agreement of the parties). Since Rodriguez expressly waived any right to have a court reporter record the plea proceedings, Rodriguez's counsel was under no obligation to object to the court reporter's failure to record the plea proceedings. See Olivia v. State, 942 S.W.2d 727, 733 (Tex. App. .Houston [14th Dist.] 1997, pet. granted) (declining to adopt a rule that failing to request a record amounts to ineffective assistance of counsel as a matter of law), pet. dism'd, 991 S.W.2d 803 (Tex. Crim. App. 1998) (per curiam); see also, Lee v. State, 29 S.W.3d 570, 579-80 (Tex. App. .Dallas 2000, no pet.) ("Failure to object to admissible evidence does not constitute ineffective assistance of counsel."). We conclude that Rodriguez failed to show that counsel's performance fell below an objective standard of reasonableness required to satisfy the first prong of the Strickland test. See Strickland, 446 U.S. at 669. Accordingly, we overrule Rodriguez's third point of error.Modification of the Judgment
The State contends that the judgment should be reformed to reflect the trial court's oral pronouncement that no fine be assessed. The trial court orally sentenced Rodriguez to two years' confinement and no fine. However, the trial court's written judgment sentenced Rodriguez to two years' confinement and a fine of $2000. When there is a conflict between the trial court's oral pronouncement and the written judgment, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). Therefore, we may modify a trial court's written judgment to correct the clerical error when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-8 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App. .Dallas 1991, pet. ref'd), modified on other grounds by Lockett v. State, 874 S.W.2d 810, 818 (Tex. App.-Dallas 1994, pet. ref'd). Accordingly, we modify the trial court's judgment to delete the $2000 fine.Conclusion
We modify the judgment to delete the $2000 fine. As modified, we affirm the trial court's judgment.This Court need not determine whether the rule set forth in Valle v. State requiring an objection to preserve error violates Rodriguez's due process and due course of law rights because Rodriguez affirmatively waived any right to a record. See Valle v. State, 109 S.W.3d at 508.
Ruggiero v. State, No. 01-86-00413-CR, 1987 WL 9209, at *1 (Tex. App. .Houston [1st Dist.] Apr. 9, 1987, no pet.) (not designation for publication) ("We decline to hold . . . that where an attorney has requested that only specific portions of the trial be recorded, that such action, per se is ineffective assistance of counsel.").