Wanda Higbee Schindley v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00195-CR
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WANDA HIGBEE SCHINDLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court
Franklin County, Texas
Trial Court No. 11134
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Wanda Higbee Schindley appeals from her conviction for misdemeanor driving while
intoxicated. On September 4, 2008, Schindley was convicted, and the jury assessed punishment
at 120 days’ confinement probated for two years and a $1,000.00 fine. This case has had a
wandering path through the legal system after Schindley’s retained appellate attorney failed to
seek preparation of a record to pursue her initial appeal, followed by a dismissal by this Court and
its ultimate remand back to this Court by the Texas Court of Criminal Appeals, with directions to
abate for a hearing on (among other things) her indigency. The trial court held a hearing and
found Schindley not indigent. She appealed to this Court, and after briefing, on September 29,
2009, we reversed the trial court and directed that she be appointed counsel and provided a free
copy of the reporter’s record. After multiple extensions and an order to the court reporter from
this Court, a free record was provided, and now, finally, over a year and a half after the trial, her
appeal is ripe for review.
Counsel has filed a brief in which he contends in a single point of error that the trial court
committed reversible error by failing to administer the proper jury oath required by Article 35.22
of the Texas Code of Criminal Procedure after the panel was selected. TEX. CODE CRIM. PROC.
ANN. art. 35.22 (Vernon 2006). Counsel points out that there is authority holding that the
complete failure to administer a jury oath renders the verdict a nullity—and that it is reversible
error that may be raised for the first time on appeal. See White v. State, 629 S.W.2d 701, 704
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(Tex. Crim. App. 1981) (citing Howard v. State, 80 Tex. Cr. 588, 192 S.W. 770 (1917)); Brown v.
State, 220 S.W.3d 552, 554 (Tex. App.—Texarkana 2007, no pet.).
The reporter’s record as originally presented did not contain any indication that the jurors
had been sworn. After the brief was filed, the State contacted the court reporter, who
acknowledged that she had accidentally omitted part of the proceedings. She then prepared a
supplemental record which contains the discourse in which the empaneled jurors were sworn in by
the court prior to the commencement of trial. No error has been shown.
We affirm the judgment.
Jack Carter
Justice
Date Submitted: June 9, 2010
Date Decided: June 10, 2010
Do Not Publish
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