Rhonda Heimendinger v. Texas Department of Protective and Regulatory Services ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00079-CV

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Rhonda Heimendinger, Appellant

v.

Texas Department of Protective and Regulatory Services, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. 95-04178, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

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After a jury trial in July 1996, the trial court terminated appellant Rhonda Heimendinger's parental rights to her five children. In one issue, appellant appeals the trial court's decree of termination, contending that the court reporter failed to file a full and complete record of the proceedings, thereby violating her due process rights. We will affirm the decree of termination.

DISCUSSION

Appellant does not challenge the sufficiency of the evidence supporting termination or lodge any complaint concerning the conduct of the trial, the charge given the jury, or the judgment rendered by the trial court. She does not suggest any error committed by the trial court. Appellant complains only that the court reporter did not record and transcribe voir dire, closing arguments, and objections, rulings, and other communications at the bench, and she argues that the incomplete record precludes a fair and reasonable appellate review of the trial. The record does not contain an oral instruction from the trial court directing the reporter to record these portions of the proceedings. Both appellant's trial counsel ⁽¹⁾ and trial counsel for the Texas Department of Protective and Regulatory Services ("DPRS") filed affidavits with this Court in which they stated that neither party requested the court reporter to transcribe voir dire, bench discussions, or closing arguments. Appellant relies on her trial counsel's assertion that there was no need to make a request because the court reporter appeared to be "actively transcribing" at every stage of the trial. See State Farm Fire & Cas. Ins. Co. v. Vandiver, 941 S.W.2d 343, 347 (Tex. App.--Waco 1997, no writ) (attorneys acted reasonably when they believed court reporter was contemporaneously recording testimony when he sat by the stenographic machine and moved his fingers over the keys).

The Family Code, which governs the procedure for contested hearings in suits affecting the parent-child relationship, ⁽²⁾ provides: "A record shall be made as in civil cases generally unless waived by the parties with the consent of the court." Tex. Fam. Code Ann. § 105.003(c) (West 1996); see also Tex. Gov't Code Ann. § 52.046(a) (West 1998); Tex. R. App. P. 13. The Texas Supreme Court has interpreted the Family Code provision to mean that "all oral testimony must be recorded." Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985) (emphasis added). ⁽³⁾ Contrary to appellant's argument, the supreme court did not hold in Stubbs that the court reporter is required to record all portions of a trial in a suit affecting the parent-child relationship. Here, the court reporter provided six volumes of oral testimony and appellant does not contend that the court reporter failed to record or transcribe any portion of the actual testimony and evidence presented to the jury. Accordingly, appellant cannot demonstrate that the missing parts of the reporter's record constitute error on the face of the record.

Furthermore, appellant does not allege any error in the portions of the record that were recorded and transcribed, which include opening statements, the testimonial evidence of twenty-six witnesses, court rulings and proceedings held in open court outside the presence of the jury, a discussion concerning the parameters of closing arguments, and objections to the charge. Neither appellant nor her trial counsel allege or even suggest that any harmful error was committed during the unrecorded proceedings. See Vandiver, 941 S.W.2d at 350. ⁽⁴⁾ Appellant makes only general arguments concerning what might be found in the missing parts of the record; she does not in any way document that anything pertinent to the appeal took place at the unrecorded bench conferences. For example, she argues that she cannot claim there was error in the jury selection without a transcript of the voir dire; that she cannot determine whether there was any error and whether that error was cured in the closing arguments without the transcript of closing arguments; and that she cannot determine if there was any error in the court's rulings on objections because the objections, arguments of counsel, and court's rulings were made at the bench and were not transcribed. We recognize that appellant's counsel on appeal does not have first-hand knowledge of what transpired at trial during, for example, the bench discussions. She could have, however, reviewed the record to see what testimonial evidence was presented after an objection followed by a bench discussion and presented arguments that the testimony was improperly admitted over objection.

Appellant has the burden to present a complete record to the court of appeals and to show that any missing portions of the record are necessary to the resolution of her appeal. See Tex. R. App. P. 34.6(f); ⁽⁵⁾ Issac v. State, No. 1106-98, slip op. at 5-6 (Tex. Crim. App. April 14, 1999). She has not met this burden. See Henning v. Henning, 889 S.W.2d 611, 613 (Tex. App.--Houston [14th Dist.] 1994, writ denied). Accordingly, appellant's sole issue is overruled.

CONCLUSION

The decree of termination is affirmed.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Kidd and Patterson

Affirmed

Filed: May 6, 1999

Do Not Publish

1. Appellant is represented on appeal by a different attorney.

2. See Tex. R. Civ. P. 308a.

3. In Stubbs, the supreme court cites to former Family Code section 11.14. See Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985). Section 11.14 was repealed and recodified as section 105.003. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 131.

4. Although Vandiver indicates that a new trial may be necessary when the appellant cannot obtain a proper record of evidence despite due diligence, it declined to reverse for a new trial based on the reporter's failure to record counsel's discussion with the trial court and the court's complete instructions to the jury, absent a showing of harm from the missing portions. See State Farm Fire & Cas. Ins. Co. v. Vandiver, 941 S.W.2d 343, 350 (Tex. App.--Waco 1997, no writ).

5. This burden remains with an appellant even in a capital murder death penalty case. See Moore v. State, No. 72,638, slip op. at 15-16 (Tex. Crim. App. April 21, 1999).

§ 105.003(c) (West 1996); see also Tex. Gov't Code Ann. § 52.046(a) (West 1998); Tex. R. App. P. 13. The Texas Supreme Court has interpreted the Family Code provision to mean that "all oral testimony must be recorded." Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985) (emphasis added). ⁽³⁾ Contrary to appellant's argument, the supreme court did not hold in Stubbs that the court reporter is required to record all portions of a trial in a suit affecting the parent-child relationship. Here, the court reporter provided six volumes of oral testimony and appellant does not contend that the court reporter failed to record or transcribe any portion of the actual testimony and evidence presented to the jury. Accordingly, appellant cannot demonstrate that the missing parts of the reporter's record constitute error on the face of the record.

Furthermore, appellant does not allege any error in the portions of the record that were recorded and transcribed, which include opening statements, the testimonial evidence of twenty-six witnesses, court rulings and proceedings held in open court outside the presence of the jury, a discussion concerning the parameters of closing argu