DOUGLAS BRILL TYLER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 15, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01378-CR
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DOUGLAS BRILL TYLER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Criminal Court No. 5
Dallas County, Texas
Trial Court Cause No. MB04-57504-F
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice O'Neill
        A jury convicted appellant Douglas Brill Tyler of misdemeanor driving while intoxicated, and the trial court sentenced him to 180 days, probated for two years, and a $1,200 fine. In his first six issues, appellant generally complains he is entitled to a new trial because a significant portion of the reporter's record has been lost or destroyed. In his seventh and eight issues, he asserts the trial court erred in restricting his cross-examination of the arresting officer and in excluding certain evidence. Finally, he contends the trial court erred in denying his request for a mistrial. After considering Tyler's issues, we affirm the trial court's judgment.
        Dallas police officer Gilbert Arevalo stopped appellant for driving sixty-nine miles-per-hour in a forty-five miles-per-hour zone shortly after midnight on July 29, 2004. Officer Arevalo smelled alcohol on his breath and noticed he had bloodshot eyes. Officer Arevalo performed the horizontal gaze nystagmus test on appellant, and he exhibited signs of intoxication. Appellant also failed the walk and turn test and the one leg stand test. Officer Arevalo arrested appellant for driving while intoxicated. The jury convicted him and this appeal followed.
Limiting Cross-Examination of Sole Witness
        In his seventh point, appellant asserts the trial court abused its discretion in limiting the cross-examination of Officer Arevalo, the State's only witness, and thereby excluding relevant evidence. The State responds such evidence was irrelevant; therefore, the trial court properly denied it.
        During trial, Officer Arevalo testified his car was equipped with an in-car video camera that did not work. Although he first testified he did not have a camera in his car, he later clarified that because it did not work, he considered his car not having one. Appellant wanted to introduce certain evidence regarding Officer Arevalo's in-car video camera, which the trial court denied. Appellant specifically wanted to question him on whether his in-car video camera was working at the time appellant performed the field sobriety tests, and if the equipment was not working, whether the officer had made previous requests for its repair. He believed this supported his theory that Officer Arevalo intentionally refused to preserve evidence of appellant's performance on the field sobriety tests. In a bill of exception, he offered to present maintenance records showing the officer never requested repair of his in-car video camera. He also wanted to offer testimony from an unrelated DWI arrest of another person that occurred a week earlier in which Officer Arevalo recorded the field sobriety tests with his in-car video camera.
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will reverse a trial court's decision to admit or exclude evidence only when that decision falls outside the zone of reasonable disagreement. Id.; Delapaz v. State, 228 S.W.3d 183, 201 (Tex. App.-Dallas 2007, pet. ref'd). All relevant evidence, unless otherwise barred by constitution, statute, or rule, is admissible at trial. Tex. R. Evid. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403.
        Here, the trial court properly limited cross-examination of Officer Arevalo because the maintenance records were irrelevant. The court heard testimony that any request for repair of the in-car video camera would not be covered by the maintenance reports. Therefore, appellant's attempt to use the reports to show Officer Arevalo was lying about requesting camera maintenance would not be established by the reports. As such, the maintenance reports would not have the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without them. Tex. R. Evid. 401 (defining “relevant evidence”). Thus, the trial court did not abuse its discretion in excluding this evidence.
        Appellant also argues the trial court erred in excluding testimony from an unrelated DWI trial in which Officer Arevalo used his in-car video camera to record field sobriety tests of an arrest one week prior to appellant's arrest. He alleged this went to his theory that the officer lied about whether his camera was in fact working during appellant's arrest and that he intentionally either did not turn it on or later destroyed the tape.
        The trial court again properly excluded the unrelated trial testimony as irrelevant. Whether Officer Arevalo's in-car video camera worked a week earlier or on any date other than the date of appellant's arrest could not establish that it was working on that particular day. It also does not make it more or less probable that he intentionally turned off the camera. Thus, the trial court properly excluded it and did not abuse its discretion in limiting Officer Arevalo's testimony. Appellant's seventh point is overruled.
Sufficiency of Reporter's Record
        In six points, appellant alleges he is entitled to a new trial because (1) a significant portion of the reporter's record has been lost or destroyed; (2) the trial court erred in concluding the filed record was correct; (3) the trial court denied appellant due process by not allowing him to listen to the court reporter's tapes or review her stenographic record; (4) the trial court denied him due process by not allowing an expert to listen to the tapes; (5) the trial court denied appellant due process by not compelling the court reporter to comply with a subpoena duces tecum to produce her stenographic records; and (6) the trial court denied him due process by terminating the hearing without determining whether the unfulfilled portions of the record were lost or destroyed. We conclude all of appellant's complaints lack merit.
        A defendant is not entitled to a reporter's record as a matter of right. Instead, at every stage of trial, a defendant must exercise some diligence to ensure that a record of any error will be available in the event an appeal is necessary. See Alvear v. State, 25 S.W.3d 241, 245 (Tex. App.-San Antonio 2000, no pet.). Nonetheless, if a reporter's record of the proceedings from which the appeal arises is lost or destroyed, an appellant is entitled to a new trial if he establishes that: (1) the appellant has timely requested a reporter's record; (2) 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 . . .; (3) the lost, destroyed, or inaudible portion of the reporter's record . . . is necessary to the appeal's resolution; and (4) the parties cannot agree on a complete reporter's record. Tex. R. App. P. 34.6(f). If, however, the missing record is not necessary to the appeal's resolution, then the record's loss is harmless, and a new trial is not required. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999); Alvear, 25 S.W.3d at 245.
        We first note appellant timely requested the reporter's record. Thus, our inquiry begins with whether a significant portion of the record has been lost or destroyed through no fault of appellant. See Tex. R. App. P. 34.6(f)(2). Appellant asserts the reporter omitted a significant portion of the record when she omitted his opening statement, which put forth his defensive theme for trial. Specifically, his theme included evidence of an in-car video that would discredit the officer's testimony. He further claims, without the opening statement, this Court is not in a position to conduct a proper harm analysis because we are required to review all evidence in the record in determining harm. We disagree with both contentions.
        Appellant has failed to establish a significant portion of the record has been lost, thereby entitling him to a new trial. Tex. R. App. P. 34.6(f)(2); see Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (“An appellate court reviews a trial court's denial of a motion for new trial under an abuse of discretion standard.”). The trial court held two different hearings to determine the accuracy of the record. During a March 22, 2007 hearing, the court reporter testified she normally does not transcribe opening statements. The trial judge also stated he usually only allows approximately two minutes for opening statements; therefore, he could not see “any significance to it.” The reporter also stated she reviewed her notes and tapes four or five times and nothing was missing. Because this was a simple DWI case, with only one witness, we cannot conclude the two- minute opening statement was a significant part of the reporter's record. But see Issac v. State, 982 S.W.2d 96, 100 (Tex. App.-Houston [1st Dist.] 1998), aff'd, 989 S.W.2d 754 (1999) (concluding thirty minutes of the trial that was lost, including opening statements and the direct examination of one of only two witnesses, was a significant portion of the record).         The purpose of an opening statement is to give the jury a general picture of the facts of the case so it will better understand the evidence presented. State v. Lee, 971 S.W.2d 553, 556 (Tex. App.-Dallas 1997), rev'd on other grounds, 15 S.W.3d 921 (Tex. Crim. App. 2000). We agree with the State that although an opening statement may present the defensive theme, it does not make it significant for a point on appeal. As trial strategy, defense counsel often waives opening statements. See, e.g., Davis v. State, 22 S.W.3d 8, 13 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Likewise, an opening statement is not evidence the jury may consider. Bigby v. State, 892 S.W.2d 864, 886 (Tex. Crim. App. 1994); Hitt v. State, 53 S.W.3d 697, 710 (Tex. App.-Austin 2001, pet. ref'd) (noting opening statements are not evidence). Considering the short amount of time allowed for an opening statement, the fact the jury could not consider it as evidence, and the fact an attorney is not bound by any theory he may present in his opening statement, we conclude under the facts of this case the trial court did not abuse its discretion in denying appellant's motion for new trial because a significant portion of the reporter's record was not lost.
        We likewise conclude appellant was not entitled to a new trial because opening statements were unnecessary to his issue on appeal. See Tex. R. App. P. 34.6(f)(3); Issac, 989 S.W.2d at 757. Appellant claims this Court cannot conduct a proper harm analysis regarding the limitation of the officer's testimony without the opening statements because we must review the entire record, including opening statements. See Allen v. State, 47 S.W.3d 47, 51 (Tex. App.-Fort Worth 2001, pet. ref'd) (noting court considers everything in record, including argument of counsel, in conducting harm analysis). We agree we must review the entire record when conducting a harm analysis; however, because we have concluded the trial court did not err in limiting Officer Arevalo's testimony, a harm analysis is unnecessary. Thus, the opening statements are not necessary to resolution of any point on appeal. See Tex. R. App. P. 34.6(f)(3). Because appellant failed to satisfy the requirements of rule 34.6(f), the trial court properly concluded he was not entitled to a new trial. We overrule appellant's first point.
        In his second point, appellant claims the trial court erred in determining the filed record was complete and accurate. He again asserts testimony and objections are missing from the record, and it is of such unprofessional quality that this Court should not accept it, but remand for a new trial.
        The trial court held a hearing on appellant's verified second motion to correct record in accordance with Texas Rule of Appellate Procedure 34.6(e)(2). Rule 34.6(e)(2) provides the following:
 
If the parties cannot agree on whether or how to correct the reporter's record so that the text accurately discloses what occurred in the trial court and the exhibits are accurate, the trial court must-after notice and hearing-settle the dispute. If the court finds any inaccuracy, it must order the court reporter to conform the reporter's record (including text and any exhibits) to what occurred in the trial court, and to file certified corrections in the appellate court.
 
Tex. R. App. P. 34.6(e)(2). The method used in determining the correctness of the record is not mandated by rule and will necessarily vary from case to case. See Stafford v. State, 63 S.W.3d 502, 511 (Tex. App.-Texarkana 2001, pet. ref'd). Here, the trial court held a hearing in which the court reporter testified. She explained the need for supplementing the record after her first transcription, and specifically stated “everything that was in the record that was in the trial that was done is in the record.” She reiterated that “there's nothing that is missing.” She further explained how she listened to her audio tape recording four or five times after appellant complained testimony was missing. When she slowed it down, inch by inch, she was able to retrieve a little more testimony, which she included in a supplemental record.
        Also, despite appellant's insistence that a bill of exception he read into the record was missing, the trial judge recalled events differently. He remembered they moved onto something else and “I don't think you ever came back and stated your full written deals on the record.” As the State properly asserts, we are not required to credit appellant counsel's allegations that an event occurred but was not recorded rather than the trial court's recollection that an unrecorded event did not occur at all.
        Appellant fully presented his arguments to the trial court and questioned the court reporter regarding any missing testimony. Under rule 34.6(e)(2), we conclude under the facts of this case the trial court did not abuse its discretion in determining the filed record was correct. See Stafford, 63 S.W.3d at 511 (holding trial court complied with rule 34.6(e)(2) when it heard argument from counsel, heard testimony from witnesses, and took specific information from defendant about the specific areas in which he believed the record was in error). We overrule appellant's second point.   See Footnote 1 
        Having concluded the trial court did not err in determining the accuracy of the record, we likewise overrule appellant's sixth issue asserting he was denied due process by terminating the hearing without deciding whether portions of the record were lost or destroyed. By finding the record complete, the trial court implicitly determined no part of it was lost or destroyed.
        In points three through five, appellant contends the trial court denied him due process by denying his request for inspection of the court reporter's tapes. He claims he and/or an expert should have been allowed to review them. He further claims he was denied due process when the trial court failed to compel the court reporter to comply with a subpoena duces tecum to produce any tapes. The State responds the trial court properly conducted a hearing and had sufficient evidence before it to determine the accuracy of the record; therefore, any further inspection was unnecessary. We agree.
        In Taylor v. State, the Waco Court of Appeals determined whether an appellant had the right to inspect and copy certain audio tapes and stenographic notes from a revocation hearing. Taylor v. State, 938 S.W.2d 754, 757 n.2 (Tex. App.-Waco 1997, no pet.). Although the issue in Taylor was before the court as “Opinion on Appellant's Motion for Inspection and on this Court's own Motion to Consider Whether an Appellate Court may Review a Trial Court's Verification and Accuracy of the Record,” we find the court's analysis instructive.
        The court noted that it is axiomatic, though rarely articulated, that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. Id. at 756 (citing Nixon v. Warner Comm'n, Inc., 435 U.S. 589, 597 (1978)). However, this right is not absolute. Every court has exclusive administrative authority over its own records and files and may deny access to them under certain circumstances as the court deems appropriate. Id. The Taylor court then concluded “[b]ecause we are satisfied the trial court's review of the record is correct, we believe, in this particular case, that an inspection by Taylor of the requested materials would be unnecessarily repetitive.” Id. (emphasis in original).
        Although Taylor was requesting to inspect the record, which had already been filed with the court of appeals, for the sole purpose of assuring that he had discharged his burden of supplying the court of appeals with a sufficient record, we find the Taylor court's analysis instructive. Here, the trial court held two hearings on the alleged inaccuracies of the record, and the court reporter testified at one about repeatedly listening to the tape for any missing testimony. She in fact corrected and supplemented the record based on testimony she found when she slowed the tape down and went through it inch by inch. Because we have concluded the trial court did not abuse its discretion by finding the record accurate, we likewise conclude it did not deny appellant due process by refusing his request to inspect the tape and her records because any further inspection, similar to Taylor, would be unnecessarily repetitive. His third issue is overruled.         We likewise conclude the trial court did not abuse its discretion and deny him due process when an expert was not allowed to review the tape. First, appellant has not cited any authority to support his argument that an expert should be allowed to inspect the tape. Further, it was within the trial court's discretion to determine nothing would be gained by allowing someone else to review the tape when the reporter herself was in the best position to discern what was spoken on the tape. Thus, once the trial court determined the accuracy of the record, no further inspection was necessary. Appellant's fifth point is overruled.
        Because no further inspection was necessary, the trial court likewise acted within its discretion and did not deny appellant due process by failing to compel the court reporter to comply with a subpoena duces tecum. The court received the necessary information to make a decision from the court reporter's testimony and the transcribed record. As such, appellant's fourth point is overruled.
Evidence of Appellant's Weight
        In his eighth point, appellant claims the trial court abused its discretion in not allowing him to demonstrate his weight to the jury by stepping on a scale and letting someone read his weight into evidence.   See Footnote 2  He argues the exclusion was harmful because such evidence would have discredited Officer Arevalo's testimony that appellant's weight was not a factor in him failing the sobriety tests.
        During cross-examination, Officer Arevalo explained a person who is extremely overweight “might” have problems with the walk and turn test or the one leg stand test. However, he further explained he did not believe appellant's weight prohibited him from performing the tests, and he estimated his weight between 195 and 200 pounds. Appellant's driver's license listed his weight at 195. Defense counsel asked him if he would be surprised to learn appellant weighed 250 pounds, and Officer Arevalo said no, but stood by his original testimony that appellant's weight did not invalidate the tests.
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Weatherred, 15 S.W.3d at 542. All relevant evidence, unless otherwise barred by constitution, statute, or rule, is admissible at trial. Tex. R. Evid. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403.
        The trial court did not abuse its discretion in excluding the weight demonstration because appellant's weight at trial was not relevant. The demonstration would do nothing to establish what he weighed at the time of his arrest. Thus, any evidence regarding his current weight would not assist the jury in determining whether his weight could have affected the sobriety tests. We overrule appellant's eighth point.
Motion for Mistrial
        In his ninth point, appellant argues the trial court erred in denying his motion for mistrial when the State attempted to elicit testimony from Officer Arevalo, in violation of a motion in limine, regarding the correlation between the vertical nystagmus test and consuming large quantities of alcohol. Appellant objected to the questioning on two previous occasions, and the trial court sustained each objection. When the State continued with the line of questioning for a third time, appellant objected, requested an instruction to disregard, and requested a mistrial. The trial court sustained the objection, instructed the jury to disregard, but denied his request for a mistrial.
        A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors. Id. A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the prejudicial impression produced in the minds of the jury. Patterson v. State, 138 S.W.3d 643, 651 (Tex. App.-Dallas 2004, no pet.). The asking of an improper question will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Id.; Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (noting a a prompt instruction to disregard will cure error resulting from an improper question).
        After reviewing the record, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial because the alleged improper question was not clearly calculated to inflame the jurors' minds nor was it of such a character as to suggest the impossibility of withdrawing the impression left upon the jury. When a trial court instructs a jury to disregard, an appellate court must presume the jury followed the trial court's instructions. Waldo v. State, 746 S.W.2d 750, 752-53 (Tex. Crim. App. 1988); Bryant v. State, 25 S.W.3d 924, 926 (Tex. App.-Austin 2000, pet. ref'd). Appellant has failed to provide any evidence to overcome this presumption. Thus, appellant's ninth point is overruled.
Conclusion
        Having overruled all of appellant's points, we affirm the trial court's judgment.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051378F.U05
 
Footnote 1 Appellant also argues the trial court erred in reaching its conclusion because the record pagination is off in places, the testimony appears to abruptly stop and start, and it does not always indicate the time or day of events. Appellant has not provided any authority that would allow a new trial based on the mere defect in form rather than substance of the record. Further, as explained above, the trial court had sufficient evidence to determine the accuracy of the record, despite any defects in form.
Footnote 2 The court overruled the objection because the demonstration would be “testimonial.”