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Criminal Law No. 72-795, 5/21/2003. Click here for the full text of this decision FACTS: The appellant was convicted of the capital murder of a child under 6 years of age. the trial judge sentenced appellant to death. The evidence that supports the verdict shows that the appellant stabbed and killed her two sons while her husband (Darin) and infant son were asleep upstairs in the house. The appellant does not challenge the legal or factual sufficiency of the evidence to support her conviction. HOLDING: Affirmed. The appellant complains that she is entitled to a new trial because of problems with the reporter’s record. She argues that, at a minimum, she is entitled to a hearing before the record can be used to decide her appeal. The appellant directs the court to State Farm Fire and Cas. Ins. Co. v. Vandiver, 941 S.W.2d 343 (Tex App. – Waco 1997, no pet.). In that case, the court reporter failed to take notes of portions of depositions that were read into the record. The court of appeals held that the tapes could be used to establish the pages and lines of the depositions and that the record could be supplemented with the parts of the depositions. The court of appeals specifically rejected its prior holding that the use of materials other than the notes taken at trial to supplement the reporter’s record would constitute a new record. The appellant argues that her case is distinguishable from Vandiver because the procedure in that case was dependent on the existence of “a proper written transcription of the testimony made at the time the deposition was given.” The state argues that Vandiverstands for the proposition that courts can use materials other than the official notes taken during proceedings to obtain an accurate reporter’s record. The court of appeals said that: “While it cannot be denied that a contemporaneous verbatim recording of the events at trial is a large part of ensuring that a complete and accurate record of the trial court proceedings is prepared, the conclusion does not follow that the record will necessarily be incomplete in every instance where there is some absence of a contemporaneous verbatim recording.” In Vandiver, portions of several exhibits and depositions were read to the jury. An audio recording of every instance where this occurred was made by the court reporter. There was no contention that what was read at trial differed in any way from the actual wording of the relevant exhibits and depositions. In addition, it was undisputed that the court reporter, by listening to the audio tapes to find where the portions of these exhibits and depositions began and ended, could reconstruct the very testimony that was missing from the original statement of facts. Therefore, the court concluded that the statement of facts could be properly supplemented with the exhibit and deposition testimony that was missing from the original statement of facts. The court agrees with the state’s reading of Vandiverand adopts the reasoning of Vandiver. The death or disability of a court reporter, without more, does not entitle the appellant to a new trial. Likewise, that a court reporter has lost her certification, without more, does not entitle the appellant to a new trial. The appellant admits that the use of another court reporter and backup tapes is a common practice when a court reporter is unable to complete and certify the record, but she says that Susan Simmons, the court reporter, used the tapes to make more than 30,000 substantive changes to the record without systematically reviewing the notes. The appellant fails to point to any specific corrections made by Simmons that show that the Simmons record is incomplete or inaccurate. The appellant argues that, if the court reporter can use tapes to make so many substantive changes to the record without a hearing, she should be required to follow the rules to protect the integrity of the tapes. Texas Rule of Appellate Procedure 13.2(e). There is no threshold number of changes that triggers rule 13.2(e). And, no matter the number of corrections made, the appellant has not even attempted to show that the record is incomplete or inaccurate. Simmons used all the materials provided her to revise the record. The appellant also claims that she is entitled to a rule 34.6(e)(2) hearing to settle disputes about the record before it can be used to decide her appeal.” There is no requirement that a hearing be held to correct the record after the record has been filed in the appellate court. The Simmons record is not a new record; it is the correctly edited transcription of Halsey’s notes. The court holds that the appellant was not entitled to a hearing under rule 34.6(e)(2). In the alternative, the court holds that the appellant had ample notice and opportunity to present live witnesses regarding her objections to the Simmons record. The appellant claims that Doug Mulder’s (the appellant’s lead counsel) representation of Darin Routier while Darin was a suspect created a conflict of interest that foreclosed a strategy of shifting responsibility for the murders to Darin Routier. The court holds that no actual conflict of interest existed regarding Mulder’s representation. OPINION: Price, J., delivered the opinion of the court.

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