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Criminal Law No. 74-137, 7/2/2003. Click here for the full text of this decision FACTS: Appellant was convicted in April 2001 of capital murder. HOLDING: Affirmed. In point of error 18, appellant claims he was denied meaningful appellate review of his death sentence when the court reporter failed to record a bench conference in which appellant had made an objection to the introduction of evidence. Appellant argues that Texas Rules of Appellate Procedure 13.1 makes the creation of a full record mandatory unless affirmatively waived. The appellant also claims that under the new rule appellant is not required to object to the court reporter’s failure to make a full record. For support, he cites to an opinion from the 13th Court of Appeals, Tanguma v. State, 47 S.W.3d 663, 674 (Tex. App. Corpus Christi 2001, pet. ref’d). Texas Rule of Appellate Procedure 13.1 states in part that the official court reporter must “attend court sessions and make a full record of the proceedings unless excused by agreement of the parties.” Under former rules 11(a)(1) and (2), a record was required only when requested by the trial court or a party. The current rule therefore makes automatic a procedure that used to be conditioned upon a request. In Moore v. State- a case decided under the former rules – the trial court granted the defendant’s motion to record bench conferences. Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000). The court held that bench conferences are different from normal “trial proceedings” and that a motion to record bench conferences is akin to a motion in limine, in that it tells the trial participants how to proceed upon the occurrence of certain events. While the granting of a pretrial motion to record bench conferences relieves a party of the burden of asking to have each bench conference recorded as it occurs, it does not preserve error. As a part of error preservation, a party is required to object. The court need not decide whether the current rule requires court reporters to record all bench conferences whether or not such recording is requested. If the rule does so require, it simply places a party in the same position he would be in if recording of bench conferences had been requested before trial. Under Moore, even when a defendant requested under the old rule that bench conferences be recorded – and the court reporter was thus required to record the proceedings – it was incumbent upon him to object if the bench conferences were not recorded. Consequently, the court disapproves of Tanguma‘s holding that the current rule dispenses with the requirement of an objection to preserve error. An objection is still required. OPINION: Keller, P.J.; Meyers, Womack, Keasler, Hervey and Holcomb, JJ., join. Price and Johnson, JJ., concur in the result. Cochran, J. concurs in point of error eighteen and otherwise joins.

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