Wayne McCray v. Douglas Dretke--Appeal from 81st Judicial District Court of La Salle County

MEMORANDUM OPINION
No. 04-06-00104-CV
Wayne Allen MCCRAY,
Appellant
v.
Douglas DRETKE and Nolan Glass,
Appellees
From the 81st Judicial District Court, La Salle County, Texas
Trial Court No. 04-06-00063-CVL
Honorable Stella H. Saxon, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: April 25, 2007

 

AFFIRMED

This is an appeal from the trial court's dismissal of a 42 U.S.C. 1983 lawsuit filed by Wayne Allen McCray, an inmate incarcerated in the Texas Department of Corrections, against two prison officials. McCray, acting pro se and in forma pauperis, sued the prison officials for injuries he allegedly sustained as a result of a bus/deer collision, which occurred while he was en route from one prison unit to another. In response to McCray's lawsuit, the prison officials filed a motion to dismiss pursuant to chapter 14 of the Texas Civil Practice and Remedies Code, which was granted by the trial court. On appeal, McCray complains that the trial court erred in failing to record the hearing on the prison officials' motion to dismiss and in failing to serve him with the judgment. We affirm the trial court's judgment.

Discussion

A. Failure to Record the Hearing on the Prison Officials' Motion to Dismiss

The Texas Rules of Appellate Procedure require a court reporter to make a full record of all proceedings unless excused by agreement of the parties. Tex. R. App. P. 13.1(a); Reyes v. Credit Based Asset Servicing & Securitization, 190 S.W.3d 736, 740 (Tex. App.--San Antonio 2005, no pet.). Unless the parties expressly waive their right to a record, the court reporter's failure to transcribe the proceedings violates rule 13.1(a) and constitutes error. Reyes, 190 S.W.3d at 740 (citing Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 161-62 (Tex. App.--Texarkana 2005, no pet.)). To preserve the error for appeal, however, a party has the burden of objecting to the court reporter's failure to record the proceedings. Id. This objection requirement comports with the general rules that an appellate court may consider a case based only upon a clerk's and/or reporter's record that shows the complaint was made to the trial court by a timely request, objection, or motion. Id. (citing Tex. R. App. P. 33.1(a)).

In our opinion in Reyes, we reasoned that where there is no reporter's record, "the objection apprising the trial court that the court reporter failed to comply with rule 13.1(a) must be preserved by filing a motion or other written objection." Id. Here, McCray did not object to the failure of the court reporter to record the proceedings and thus has not properly preserved error.

It makes no difference that McCray was incarcerated and attended the hearing by telephone. The requirement of objecting to the court reporter's failure to make a record has been held to apply to litigants, like McCray, whose attendance at the hearing is by telephone because of incarceration. See Nabelek v. Dist. Attorney, No. 14-03-00965-CV, 2005 WL 2148999, at *5 (Tex. App.--Houston [14th Dist.] 2005, pet. filed). In Nabelek, the incarcerated plaintiff attended the hearing by telephone, but did not request that the court reporter record the hearing, thus failing to preserve the issue for appeal. Id. Also in Nabelek, the court reasoned that, even if error had been properly preserved, Nabelek's argument lacked merit because the Texas Civil Practice and Remedies Code does not require the trial court to conduct an oral hearing before dismissing a suit under section 14.003. Id. at *6. And, the court noted that Nabelek had failed to explain how the absence of a record of the hearing caused the rendition of an improper judgment or prevented him from properly presenting his case to the appellate court. Id.; see also Tex. R. App. P. 44.1(a) ("No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals."). McCray likewise has not presented any argument that would demonstrate how the absence of a record in this case resulted in an improper judgment or prevented him from properly presenting his appeal. Thus, as in Nabelek, even if McCray had properly preserved error, any error is harmless.

B. Failure to Serve the Judgment

Rule 306a of the Texas Rules of Civil Procedure requires the clerk of the court to immediately give notice to the parties when a final judgment or other appealable order is signed. See Tex. R. Civ. P. 306a. Rule 306a also sets forth a procedure for parties to follow when they do not receive the required notice. See id. The Comments of the Advisory Committee provide that "[t]he purpose of Rules 306a ... is to enable the appellant to ascertain more definitely when the time to perfect an appeal begins to run." See id. cmt.

Although the parties agree that McCray did not receive a copy of the order granting the motion to dismiss as required by rule 306a, McCray did nevertheless file a timely notice of appeal. Thus, in spite of not receiving a copy of the judgment, McCray apparently had no difficulty ascertaining when to perfect his appeal. Any error is, therefore, harmless.

Conclusion

Finding no error, we affirm the trial court's judgment.

 

Karen Angelini, Justice