Affirmed and Opinion filed May 1, 2012.
In The
Fourteenth Court of Appeals
___________________
NOS. 14-11-00665-CR
14-11-00666-CR
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CHARLES F. SATTERFIELD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause Nos. 1268997 & 1268998
OPINION
Appellant Charles F. Satterfield was convicted of two separate felony offenses of
possession of child pornography. See Tex. Penal Code § 43.26. Appellant waived his
right to a jury trial and entered pleas of guilty to the charged offenses. The trial court
conducted a punishment hearing, sentenced appellant to four years’ imprisonment for each
offense, and ordered that the sentences run concurrently. On appeal, appellant contends
that his waiver of a court reporter at his guilty plea proceeding was not an intentional,
knowing, and voluntary waiver of his right to a court reporter at his punishment hearing
and that, therefore, he is entitled to a new punishment hearing. We affirm.
BACKGROUND
When appellant entered his guilty pleas on May 5, 2011, he executed documents
entitled ―Admonishments‖ in regard to each charged offense. In those documents, under
the heading ―Statements and Waivers of Defendant,‖ appellant specifically initialed
subsection (4), which reads: ―I WAIVE the right to have a court reporter record my plea.‖
Appellant also initialed subsection (12), which reads in relevant part: ―Under Art. 1.14
V.A.C.C.P. I give up all rights given to me by law, whether of form, substance or
procedure.‖
The trial judge subsequently held a punishment hearing on July 12, 2011. At that
hearing, the court reporter was allegedly present and in her usual location; however, no
record was made of the hearing. 1 The trial judge sentenced appellant to four years’
imprisonment for each offense, and ordered that the sentences run concurrently.
Appellant filed a pro se motion for new trial, which was denied. Appellant timely
appealed to this court. Appellant filed a motion requesting that this court abate the appeal
and order the trial court to determine the accuracy of its docket sheet entry of ―Court
Reporter: WAIVED‖ for the punishment hearing. This court granted that motion and
abated to the trial court to determine if there was any inaccuracy in the record, and if so,
correct it. The trial court declined to change the docket sheet entry.
1
The trial court’s docket sheet entry for the July 12, 2011 hearing reads in part: ―Court Reporter:
WAIVED.‖ However, as appellant argues, a docket entry is not evidence that an event occurred, is not
part of the record, and cannot be relied on by the parties on appeal. See Rush v. Barrios, 56 S.W.3d 88, 95
(Tex. App.—Houston [14th Dist.] 2001, pet denied); Bell v. State, 734 S.W.2d 83, 84 (Tex. App—Austin
1987, no pet.).
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DISCUSSION
On appeal, appellant argues in a single point of error that he did not intentionally,
knowingly, and voluntarily waive his right to have a court reporter record the punishment
hearing, and that he is therefore entitled to a new punishment hearing with a court reporter.
Appellant argues that (1) the right to have a reporter at the punishment hearing was not a
forfeitable right, but rather mandatory, unless expressly waived by appellant, and (2) that
he received ineffective assistance of counsel because his trial counsel erroneously advised
him that waiver of the right to a reporter at the guilty plea proceeding did not include
waiver of the right to a reporter at the punishment hearing. Appellant has not alleged that
any error occurred during the punishment hearing. Rather, appellant appears to argue that
the lack of a record from the punishment hearing prevents him from searching for
appealable error.
Texas law permits a criminal defendant charged with a non-capital crime to waive
any rights secured him by law. See Tex. Code Crim. Proc. Art. 1.14(a); Walton v. State,
670 S.W.2d 310, 312 (Tex. App.—Houston [1st Dist.] 1983, no pet.). Here, appellant
executed waivers which waived his right to a court reporter to record his plea and waived
―all rights given to [appellant] by law, whether of form, substance or procedure.‖
Appellant failed to request a record for any part of the proceedings.2 We nevertheless
address appellant’s arguments that his waiver was not made intentionally, knowingly, or
voluntarily.
A. The Right to a Court Reporter was Forfeitable
2
Appellant argues that, at the punishment hearing, both he and trial counsel ―assumed that the
court reporter, who was seated at her usual place, was recording the proceeding.‖
3
Appellant argues that, because the waiver of a defendant’s right to appeal must be
intentional, knowing, and voluntary3 and that there can be no meaningful appeal without a
record, appellant’s waiver of his right to have a court reporter record the punishment
hearing must, likewise, be intentional, knowing and voluntary. The State contends that,
under Texas Government Code section 52.046(a) and Texas case law, the right to a court
reporter is a forfeitable right, and appellant forfeited it. We agree that the right to a court
reporter is a forfeitable right.
Absent a specific request by a party, the court has no duty to provide an official
court reporter for the proceedings. See Tex. Gov’t Code § 52.046(a). In contrast, Texas
Rule of Appellate Procedure 13.1 states that ―[t]he official court reporter or court recorder
must: (a) unless excused by agreement of the parties, attend court sessions and make a full
record of the proceedings.‖ Appellant implies that Texas Rules of Appellate Procedure
13.1 would trump Texas Government Code section 52.046(a), with the result that the
creation of a full record of the proceedings is mandatory unless affirmatively waived.
The Texas Court of Criminal Appeals has held otherwise. See Davis v. State, 345
S.W.3d 71, 77 (Tex. Crim. App. 2011) (noting that the defendant did not request a court
reporter under 52.046(a) and, regardless, ―even if Rule 13.1 does impose a preliminary
burden on the trial court to ensure the presence of a court reporter at all proceedings, our
case law also imposes an additional, independent burden on the appealing party to make a
record demonstrating that error occurred in the trial court. This includes a burden to
object when the official court reporter is not present, as he is required to be under Rule
13.1, in order to preserve any error that may occur for appeal.‖) (emphasis in original);
Valle v. State, 109 S.W.3d 500, 508–09 (Tex. Crim. App. 2003) (holding that even under
Rule 13.1 it was incumbent upon the defendant to object if bench conferences were not
recorded in order to preserve error for appeal). Therefore, because appellant did not
3
Ex Parte Delaney, 207 S.W.3d 794, 796–97 (Tex. Crim. App. 2006).
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request a court reporter or object to the reporter’s failure to record the proceedings, any
right to a record of the punishment hearing was forfeited.4
B. Ineffective Assistance of Counsel
Appellant also argues that his trial counsel erroneously advised him that the waiver
of the right to have a court reporter record the guilty plea proceeding did not include
waiving that right at the punishment hearing. Appellant contends that as a result of this
erroneous advice, he received ineffective assistance of counsel.
To prevail on an ineffective assistance of counsel claim, an appellant must first
demonstrate that the trial counsel’s performance was deficient. Strickland v. Washington,
466 U.S. 668, 687 (1984). Second, the appellant must show his counsel’s deficient
performance was so serious that it prejudiced his defense; in other words, appellant must
demonstrate that there is a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different. Id. at 687, 694.
Appellant has not alleged that any error occurred during the punishment hearing.
Rather, appellant appears to argue that the lack of a record from the punishment hearing
prevents him from searching the record for appealable error.
Without an allegation of specific harm suffered by appellant, the failure of trial
counsel to request a recording of the proceedings is not per se ineffective assistance of
counsel. See Rivera v. State, 981 S.W.2d 336, 339 (Tex. App.—Houston [14th Dist.]
1998, no pet.); Smith v. State, 751 S.W.2d 902, 908 (Tex. App.—Houston [14th Dist.]
1988, no pet.) (finding no harm where no error was alleged to have resulted from failure to
record voir dire and closing arguments). Moreover, where the prospect of a successful
4
See McDonald v. State, No. 14-01-01056-CR, 2002 WL 31835045, at *1 (Tex. App.—Houston
[14th Dist.] Dec. 19, 2002, pet. ref’d) (not designated for publication) (where appellant waived the right to
have a court reporter ―record [his] plea of guilty or nolo contendere or true,‖ failure of the reporter to record
the punishment hearing was not error because appellant (1) did not request a court reporter pursuant to Tex.
Gov’t Code § 52.046(a), and (2) waived his rights as to the entire proceeding because the proceeding was
unitary, not bifurcated, as a result of his guilty plea).
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appeal is slight, the value of a court reporter is diminished. Rivera, 981 S.W.2d at 339
(where appellant did not confront witnesses, waived a jury, and entered a guilty plea
without the benefit of a plea bargain agreement, this court noted that the chances of a
successful appeal were remote, and appellant’s trial counsel was not ineffective for failing
to request a court reporter to record the plea hearing). Though appellant has alleged not
that his counsel failed to request the recording, but rather that his counsel misinformed him
regarding the extent of his waiver, we see no meaningful distinction under these
circumstances. Appellant pleaded guilty, waived his rights, which included his right to a
court reporter, and has not alleged that any error occurred during the punishment hearing.
Appellant has failed to demonstrate that, but for his counsel’s deficient performance, the
outcome of the proceeding would have been different. See Strickland, 466 U.S. at 687,
694.
Accordingly, we overrule appellant’s sole issue on appeal, and we affirm the
judgment of the trial court.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Christopher, and Jamison.
Publish — TEX. R. APP. P. 47.2(b).
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