Virna Catherine Fender v. the State of Texas ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-19-00333-CR
________________
VIRNA CATHERINE FENDER, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 19-338600
________________________________________________________________________
MEMORANDUM OPINION
Following a bench trial in which she appeared pro se, Virna Catherine Fender
was found guilty of the Class B Misdemeanor offense of driving while intoxicated.
The trial court sentenced her to 180 days in county jail but suspended the sentence
and placed her on community supervision for ten months. In this pro se appeal,
Fender raises multiple issues, which can be characterized and grouped as challenges
to: (1) the trial court’s jurisdiction; (2) the legislature’s constitutional ability to enact
statutes; (3) the denial of her motion to suppress; (4) the admission of certain
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testimony at trial; (5) denial of access to the courts; (6) prosecutorial misconduct;
and (7) the sufficiency of the evidence.
I. Background
We initially address procedural matters. Fender failed to raise a claim of
indigence and failed to have a reporter’s record filed in this case. See Tex. R. App.
P. 20.2 (outlining procedure for criminal defendant to obtain record without charge).
The clerk’s record revealed there was a “Finding of Indigent Ineligibility” in May of
2019. Despite an admonishment from this court that the case would be submitted
without a reporter’s record, Fender failed to make the necessary arrangements to
have the reporter’s record filed or request a partial reporter’s record with a statement
of points. See Tex. R. App. P. 34.6(b), (c) (outlining responsibility for requesting
reporter’s record and procedure for requesting a partial reporter’s record). The case
was submitted with a clerk’s record but without a reporter’s record. Our recitation
of the facts is limited to those gleaned from the clerk’s record, specifically, the trial
court’s findings of fact and conclusions of law on the motion to suppress. 1 See Vega
v. State, No. 14-08-00572-CR, 2009 WL 1493041, at *1 n.1 (Tex. App.—Houston
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The clerk’s record revealed that Fender filed her initial motion to suppress
over six months before trial and her last amended motion to suppress approximately
four months before trial. We abated this appeal and remanded the case to the trial
court to prepare findings of fact and conclusions of law essential to the motion to
suppress.
2
[14th Dist.] May 28, 2009, no pet.) (mem. op., not designated for publication)
(explaining that in absence of reporter’s record, court used clerk’s record for
background facts); see also Menifee v. Chandler, 09-20-00127-CV, 2020 WL
7756149, at *1 (Tex. App.—Beaumont Dec. 30, 2020, no pet.) (citation omitted)
(noting in absence of reporter’s record, “our discussion of the background is solely
based on the clerk’s record”).
The trial court’s findings of fact are as follows. At approximately 3:19 a.m.
on January 27, 2019, Officer Justin Schubert with the Conroe Police Department
responded to a 9-1-1 dispatch and found Fender in the driver’s seat of her vehicle.
Having driven off the road, Fender’s vehicle was approximately thirty yards into the
woods. When assisting Fender out of the vehicle, Officer Schubert noticed the strong
odor of alcohol, Fender’s slurred speech, and that Fender was “very unsteady” on
her feet. Officer Schubert learned that she was driving home from “The Jailhouse”
bar.
Officer Schubert then administered several field sobriety tests to Fender, all
revealing multiple signs of intoxication. The officer placed Fender under arrest, read
her the DIC-24 statutory warning, and requested a sample of her blood or breath,
which she refused to provide. Officer Schubert then obtained a warrant at
approximately 5:14 a.m. and took Fender to Conroe Regional Medical Center to
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have her blood drawn. Pursuant to the warrant, a registered nurse from that facility
performed a DWI blood draw.
Tiffani Parker, a forensic scientist with the Texas Department of Public Safety
Crime Laboratory in Houston conducted the blood alcohol analysis, which revealed
a blood alcohol content of .196 grams of alcohol per milliliter of blood. The trial
court found that Fender, “at the time of driving, had lost the normal use of her mental
and physical faculties.”
The trial court’s conclusions of law were:
1. Officer Schubert had reasonable suspicion that Ms. Fender was
intoxicated while driving to justify his investigation, due to the nature
of the crash, odor of alcohol in the vehicle, Ms. Fender’s unsteady
balance and her slurred speech[;]
2. After considering the accident, and other signs of intoxication,
including the failure of all three standard field sobriety tests, Officer
Schubert had probable cause to arrest Ms. Fender[;]
3. The blood warrant in the case was properly issued and executed[;]
4. Ms. Fender was operating a motor vehicle, in a public place, in
Montgomery County, Texas while intoxicated on January 27th 2019[;]
5. The court announced during reading of verdict that all elements had
been proven beyond a reasonable doubt.
The State charged Fender with driving while intoxicated, and she pleaded not
guilty. During the case’s pendency, the clerk’s record revealed the State made a
Brady disclosure regarding a possible defect with the vacutainer tube used to collect
Fender’s blood sample. The trial court convicted her of driving while intoxicated,
sentenced her to 180 days in the county jail, but suspended the sentence and placed
her on community supervision for ten months. Fender timely appealed.
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II. Issues Not Requiring Reporter’s Record
If no reporter’s record is filed due to an appellant’s fault, after giving an
appellant notice and a reasonable opportunity to cure, the court may consider and
decide the issues or points that do not require a reporter’s record for a decision. See
Tex. R. App. P. 37.3(c). This Court notified Fender of the missing reporter’s record
and advised it would not abate the appeal absent a claim of indigence on her part,
which she failed to raise. This Court gave her a reasonable opportunity to cure and
admonished her that her failure to do so would result in the case being submitted
without the reporter’s record.
A. Jurisdiction
Fender first argues “[t]he jurisdiction of the court may be challenged at any
time.” While generically citing to the Texas Constitution, she fails to explain
whether she contests the trial court’s jurisdiction or this Court’s jurisdiction.
“Subject matter jurisdiction is conferred on a court by statute or by constitution.”
Estrada v. State, 148 S.W.3d 506, 508 (Tex. App.—El Paso 2004, no pet.) (citing
Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. [Panel Op.] 1981)).
Moreover, the State has jurisdiction over an offense that a person commits inside
this state. See Tex. Penal Code Ann. § 1.04(a)(1). The Texas Constitution recognizes
the jurisdiction of county courts as provided by law. See Tex. Const. art. V, §§ 16,
17. The Texas Government Code provides for county courts at law generally and
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specifically in Montgomery County to have jurisdiction over criminal cases. See
Tex. Gov’t Code Ann. §§ 25.003, 25.1722. We overrule this issue.
B. Legislature’s Ability to Enact Statutes
Fender appears to argue that the Texas Constitution was not specifically
amended to regulate DWI offenses and blood draws. The Court of Criminal Appeals
has explained that the Texas Constitution vests lawmaking authority in the
legislature. Vandyke v. State, 538 S.W.3d 561, 573 (Tex. Crim. App. 2017). This
legislative “power to make, alter, and repeal laws” is limited only by what the
Constitution expressly or implicitly prohibits. Id. “[T]he legislature possesses the
sole authority to establish criminal offenses and prescribe punishments.” Id. (citing
State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973)); see
also Harbin v. State, 619 S.W.3d 293, 296 (Tex. Crim. App. 2021). To the extent
these issues contend that the Texas Constitution has not been amended to make
driving while intoxicated a crime, prescribe a punishment, or permit a blood draw,
Fender ignores the power vested in the legislature by the Texas Constitution to make,
alter, or repeal laws and specifically to establish criminal offenses and prescribe
punishments. See Vandyke, 538 S.W.3d at 573; see also Harbin, 619 S.W.3d at 296.
We overrule these issues.
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C. Search Warrant
Fender complains about the search warrant’s validity, because “the necessary
oath was not administered before a magistrate.” In her motion to suppress, Fender
argued that the magistrate was required “to demand that police officers personally
appear to swear and sign probable cause affidavit[.]” This argument lacks merit. The
Court of Criminal Appeals explained that it “has held for the better part of a hundred
years that, before a written statement in support of a search warrant will constitute a
‘sworn affidavit,’ the necessary oath must be administered ‘before’ a magistrate or
other qualified officer.” Clay v. State, 391 S.W.3d 94, 98–99 (Tex. Crim. App. 2013)
(emphasis added); see also Wheeler v. State, 616 S.W.3d 858, 864 (Tex. Crim. App.
2021) (explaining requirement that oath be made “before” or in presence of another
to convey the solemnity of being truthful). The law does not require affiants to
personally appear before the magistrate to swear and sign the affidavit; it may be
done before another qualified officer. The clerk’s record reveals that Officer
Schubert signed a probable cause affidavit, which was sworn before a person
authorized to administer the oath, i.e., a “qualified officer.” We overrule this issue.
III. Issues Requiring a Reporter’s Record
A. Law: Reporter’s Record and Error Preservation
The Texas Rules of Appellate Procedure provide that the official or deputy
reporter is responsible for preparing, certifying, and timely filing the reporter’s
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record if (1) a notice of appeal has been filed, (2) the appellant requested the
reporter’s record be prepared, and (3) the party responsible for paying for the
preparation of the reporter’s record has paid the fee, or has made satisfactory
arrangements with the reporter to pay the fee, or is entitled to appeal without paying
the fee. See Tex. R. App. P. 35.3(b). “It is usually the appealing party’s burden to
present a record showing properly preserved, reversible error.” Word v. State, 206
S.W.3d 646, 651 (Tex. Crim. App. 2006).
When a reporter’s record is necessary for appellate review and the appellant
fails to file the reporter’s record, we presume the reporter’s record supports the trial
court’s judgment. See Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d
157, 165 (Tex. App.—Texarkana 2005, no pet.). “[I]f an appellant does not initiate
the completion of a record and his issues involve matters omitted from the record
due to his failure to request or pay for the record, his actions prevent an appellate
court from adequately reviewing his issues and effectively waive his issues.” Collins
v. State, No. 05-18-00498-CR, 2019 WL 2648168, at *2 (Tex. App.—Dallas June
27, 2019, pet. ref’d) (mem. op., not designated for publication) (citing Kent v. State,
982 S.W.2d 639, 641 (Tex. App.—Amarillo 1998, pet. ref’d, untimely filed)).
Considering Fender’s failure to procure and file the reporter’s record, we presume
the reporter’s record supports the trial court’s judgment. See Rittenhouse, 161
S.W.3d at 165.
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Additionally, when presenting an issue for review, an appellant must also
follow the rules of error preservation.
It is well established that, in order to preserve an issue for appeal, a
timely objection must be made that states the specific ground of
objection, if the specific ground was not apparent from the context. A
general or imprecise objection may be sufficient to preserve error for
appeal, but only if the legal basis for the objection is obvious to the
court and to opposing counsel. When the objection is not specific, and
the legal basis is not obvious, it does not serve the purpose of the
contemporaneous-objection rule for an appellate court to reach the
merits of a forfeitable issue that is essentially raised for the first time
on appeal.
Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (citations omitted);
see also Tex. R. App. P. 33.1.
Under the current rules, a party who properly designates certain portions of
the reporter’s record may appeal without a complete record, and we must presume
the incomplete record is complete for purposes of the appeal. See Tex. R. App. P.
34.6(c)(4); $4,310 in U.S. Currency v. State, 133 S.W.3d 828, 829 (Tex. App.—
Dallas 2004, no pet.) (noting same). “However, strict compliance with rule 34.6(c) is
necessary to activate the presumption that the omitted portions of the record are
irrelevant.” $4,310 in U.S. Currency, 133 S.W.3d at 829 (citing CMM Grain Co. v.
Ozgunduz, 991 S.W.2d 437, 439–40 (Tex. App.—Fort Worth 1999, no pet.);
Christiansen v. Prezelski, 782 S.W.2d 842, 843–44 (Tex.1990) (per curiam)). As
this Court has previously explained, “[W]e cannot speculate our way to a ruling
reversing the trial court’s judgment.” Singleton v. State, 09-18-00381-CR, 2020 WL
9
6295088, at *7 (Tex. App.—Beaumont Oct. 28, 2020, pet. ref’d) (mem. op., not
designated for publication). Because Fender neither filed a complete record on
appeal nor complied with the partial reporter’s record provisions of rule 34.6, we
must presume the omitted reporter’s record supports the judgment. See Tex. R. App.
P. 34.6(c)(1); $4,310 in U.S. Currency, 133 S.W.3d at 829-30 (citations omitted).
B. Analysis: Motion to Suppress, Admission of Testimony, Prosecutorial
Misconduct, Sufficiency of Evidence
Fender’s remaining challenges including the denial of her motion to suppress,
admission of testimony, prosecutorial misconduct, and sufficiency of the evidence
required her to present a record showing that she preserved her complaints with a
timely objection or harm resulted.
Fender contends that “[w]here the correct ground of exclusion was obvious to
the judge no waiver results from a general or imprecise objection.” She implies that
the general rules of error preservation did not apply because the “specific grounds
were apparent from the context.” Fender does not identify what specific evidence
should have been excluded nor does she cite to any portion of the record in support
of her complaint. Absent a reporter’s record, we are unable to tell whether she
objected, the nature of the objection, or whether she was excused from objecting
because the ground of exclusion was apparent from the context. See Tex. R. App. P.
33.1; Buchanan, 207 S.W.3d at 775.
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With respect to her motion to suppress, to constitute reversible error, Fender
must show that the denial of her motion to suppress was harmful. See Tex. R. App.
P. 44.2; Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). On a
motion to suppress, a harm analysis requires an examination of the entire record. See
Tijerina v. State, 334 S.W.3d 825, 835 (Tex. App.—Amarillo 2011, pet. ref’d).
Absent a reporter’s record, we cannot conduct a harm analysis. We overrule this
issue.
In multiple issues, Fender complains about the admissibility of Officer
Schubert’s testimony and Parker’s testimony. Specifically, she contends the trial
court failed to act as a “gatekeeper.” “[A]n objection based on an expert’s lack of
qualifications does not preserve for our review the issue of whether the court erred
in denying a proper request for a Rule 705(b) hearing.” Shaw v. State, 329 S.W.3d
645, 655–56 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Jenkins v.
State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1993)). In the absence of the reporter’s
record, we are unable to review the witnesses’ testimony, determine whether she
objected to the testimony at trial, or whether she requested a hearing. See Tex. R.
Evid. 705(b) (requiring hearing outside jury’s presence); see also Word, 206 S.W.3d
at 652 (noting appellant’s burden to present record on appeal showing complaint was
preserved). Moreover, we cannot determine whether the admission of such
testimony constituted error, or whether such error was harmful. See Smith v. State,
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290 S.W.3d 368, 375 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (noting that
to conduct harm analysis in a non-jury case, appellate court must consider the entire
record). We overrule these issues.
In multiple issues, Fender also complains of what she characterizes as
“prosecutorial misconduct” and “Brady violations.” 2 These complaints appear to be
centered around the State’s evidence presented through experts and Fender’s
challenge to the blood sample evidence. To preserve a complaint of prosecutorial
misconduct, a defendant must: (1) object on specific grounds, (2) request an
instruction that the jury disregard the comment, and (3) move for a mistrial. Penry
v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995). As with her other issues,
Fender failed to provide us any reporter’s record showing what evidence was
adduced at trial or whether she preserved her complaints. See Word, 206 S.W.3d at
657. We overrule these issues.
Fender challenges the sufficiency of the evidence to support the conviction.
“In a criminal case, if the statement contains a point complaining that the evidence
is insufficient to support a finding of guilt, the record must include all the evidence
admitted at the trial on the issue of guilt or innocence and punishment.” Tex. R. App.
P. 34.6(c)(5); see also McDougal v. State, 105 S.W.3d 119, 121 (Tex. App.—Fort
2
The clerk’s record shows that the State filed an initial and amended Brady
Disclosure in this case regarding a potentially defective vacutainer more than two
months before trial.
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Worth 2003, pet. ref’d). While the current rules allow the appealing party to present
a partial record, Fender did not comply with the rules, nor did she supply a partial
reporter’s record. See Amador v. State, 221 S.W.3d 666, 679 (Tex. Crim. App. 2007)
(noting current rules provide for appealing party to present a partial record). As the
Court of Criminal Appeals explained in Rowell v. State, “In a criminal case in which
one of the appellant’s stated issues is that the evidence is insufficient to support a
finding of guilt, the record must include all the evidence admitted at the trial.” 66
S.W.3d 279, 282 (Tex. Crim. App. 2001) (citing Tex. R. App. P. 34.6(c)(5)).
Since no portion of the reporter’s record was included on appeal, there is an
absence of “all the evidence admitted at the trial.” See Rowell, 66 S.W.3d at 282.
Fender failed to meet her burden to ensure the record is sufficient to resolve the issue
presented, and we overrule this issue. See id.Finally, Fender contends she was denied access to the courts, specifically, that
her motion to recuse the trial judge was summarily denied. She asserts that “when
[a court] ignores all the evidence given by one side[,] and with studied design gives
credence to the testimony of the other side, the findings would be arbitrary[.]” She
further argues that when a judge’s conduct during a case indicates a “high degree of
favoritism or antagonism” rendering a fair judgment impossible, the judge should
recuse himself.
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Without a reporter’s record we are unable to determine what evidence Fender
offered at trial and whether the trial court ignored that evidence. She also contends
the judge’s conduct during the case indicated a “high degree of favoritism” for the
State, but as with her other arguments, her failure to supply this Court with a
reporter’s record of the proceedings provides no support for that assertion. Fender
failed to meet her burden to supply us with a record showing reversible error. See
Word, 206 S.W.3d at 657. We overrule this issue.
IV. Conclusion
Having overruled Fender’s issues, we affirm the trial court’s judgment.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on February 19, 2021
Opinion Delivered August 11, 2021
Do Not Publish
Before Golemon, C.J., Kreger and Johnson, JJ.
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