Timothy Ray Nobles v. The State of Texas--Appeal from County Court at Law of Kendall County

MEMORANDUM OPINION
No. 04-02-00157-CR
Timothy Ray NOBLES,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court of Law, Kendall County, Texas
Trial Court No. 00-162-CR
Honorable Bill R. Palmer, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Concurring Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 7, 2003

AFFIRMED

A jury found Timothy Nobles guilty of driving while intoxicated. He was sentenced to 180

days in jail, probated for one year, and fined $500.00. On appeal, Nobles argues he is entitled to judgment in his favor or a new trial because the evidence is legally and factually insufficient to support the jury's verdict and the court reporter failed to record two bench conferences. We hold the evidence, when measured against the proper standards of review, is sufficient to support the jury's verdict; and since the record does not establish that Nobles' substantial rights were harmed by the failure to record the two bench conferences, the error is not reversible. We therefore affirm the trial court's judgment.

1. Nobles first argues the evidence is legally and factually insufficient to support the jury's finding that, at the time of the stop, he did "not hav[e] the normal use of his mental or physical faculties" because of alcohol or drugs. Tex. Pen. Code Ann. 49.01(2)(A) (Vernon 2003). Nobles draws this conclusion because the record contains evidence that might suggest he was not legally intoxicated at the time of the stop, (1) as well as evidence from which it might be concluded that the field sobriety tests should not be considered. (2) But the issue is not whether there is evidence from which a jury might have concluded Nobles was "not guilty." The issue in legal sufficiency analysis is whether there is any evidence - viewed in the light most favorable to the jury's verdict - from which "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). We hold there is such evidence: Trooper Setliff testified that Nobles weaved in his lane, had glassy eyes, smelled of alcohol, demonstrated all six clues on the HGN test, three of four clues on the one-leg stand, six of eight clues on the walk-and-turn test, and refused to give a breath or blood specimen. The essential portions of Setliff's testimony are not contradicted by the videotape. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000). We therefore hold the evidence is legally sufficient to support the jury's verdict. We also hold the evidence is factually sufficient to support the jury's verdict; it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).

2. Nobles next argues that he is entitled to a new trial because the court reporter failed to record two bench conferences and the missing portions are necessary for the resolution of his appeal. We again disagree. The failure of the court reporter to record the two bench conferences does not rise to the level of constitutional error. See Brossette v. State, 99 S.W.3d 277, 285 (Tex. App.-Texarkana 2003, n.p.h.) (citing Tanguma v. State, 47 S.W.3d 663, 676 (Tex. App.-Corpus Christi 2001, pet. ref'd)). Therefore, we must disregard the error unless it affected Nobles' substantial rights. See Brossette, 99 S.W.3d at 285. Nobles suggests that "harm can[not] be determined due to the lack of data needed for analysis," Llamas v. State, 12 S.W.3d 469, 471 (Tex. Crim. App. 2000), and contends he was presumptively harmed because he "was deprived the right to a complete record on appeal." We disagree.

The primary harm caused by the failure to record trial court proceedings is that a defendant may be precluded from properly presenting a claim of error on appeal. Nobles did not object at trial to any ruling the trial court may have made during the bench conferences, nor has he complained of any such ruling on appeal. There is therefore no claim of preserved error that Nobles was prevented from presenting because of the failure to record. See Johnson v. State, 82 S.W.3d 471, 473 (Tex. App.-Austin 2002, no pet.).

Nobles also argues the lack of a complete record prevents him from being able to determine whether the trial court actually committed any harmful error. Again, we disagree. The first unrecorded bench conference occurred during voir dire when a panel member asked to speak privately at the bench. The panel member was not stricken for cause as a result of the bench conference, but was stricken by the State's exercise of one of its peremptory challenges. The second unrecorded conference occurred immediately after both the State and defense rested. The State asked to introduce some medical records and to have them marked. The record indicates there was then a discussion off the record. When the reporter began recording again, defense counsel objected to allowing the State to reopen its case. The court agreed and did not allow the records to be introduced. We conclude from reviewing the record that no error occurred during the unrecorded bench conferences that affected Nobles' substantial rights.

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice

Do not publish

1. Nobles argues the following evidence indicates he was sober at the time of the stop: he stopped his vehicle on his own volition and was very cooperative; he did not fumble for his driver's license; he exited his vehicle without difficulty; his speech was not slurred and he recited the alphabet and performed the nose touch test adequately.

2. Nobles argues (1) the results of the horizontal gaze nystagmus test should not be considered because, according to Officer Perez, Setliff administered the test in a manner known to give false positive results; and (2) the one-leg stand and walk-and-turn tests should not be considered because, according to Officer Busbee, a suspect's medical condition (such as Nobles' previously-broken ankles) that prevent the suspect from completing a test should not be counted against the suspect.