Opinion
Nos. 05-01-01760-CR, 05-01-01761-CR and 05-01-01762-CR.
Opinion Issued May 1, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F95-45906-MH / F97-46151-MH / F00-46312-NH. AFFIRMED in part, REVERSED and REMANDED in part.
Before Justices JAMES, FRANCIS and LANG.
OPINION
In these appeals, Keithen Oneal Johnson complains the court reporter's record has been lost or destroyed, and he requests new trials. As for the convictions from the original trials, we do not have jurisdiction to address appellant's complaints. We reverse the probation revocations and remand for a new hearing. On November 14, 1995, appellant entered a negotiated plea of nolo contendere in cause number F95-45906-MH-unlawful possession of a firearm by a felon-and was sentenced to confinement for eight years, probated for three years, and assessed a fine of $500. On January 13, 1998, appellant entered a negotiated plea of guilty in cause number F97-46151-MH-unlawful possession of cocaine-and was sentenced to confinement for two years, probated for five years, and assessed a fine of $300. In cause number F00-46312-NH-unlawful possession of cocaine-appellant entered a negotiated plea of guilty on June 21, 2000. He was sentenced to confinement for two years, probated for five years. On October 19, 2001, the trial court revoked appellant's probation in all three cases and sentenced him to eight years, two years, and two years, respectively, and assessed fines of $500.00 (relating to cause number F95-45906-MH) and $126.50 (relating to cause number F97-46151-MH). After his probation was revoked in each of the above three causes, appellant filed notices of appeal. On October 31, 2001, appellant requested the reporter's records for all causes, including the record of the October 19, 2001 revocation hearing. Eleven months later, on September 26, 2002, after we had adopted the trial court's findings that court reporter Mary Belton could file the record in this appeal by using notes she had located, this Court ordered Ms. Belton to file the reporter's record by October 7, 2002. Ms. Belton did not file the record. Accordingly, on October 15, 2002, this Court concluded appellant timely requested preparation of the record and it was not available due to no fault of appellant. We ordered the parties to file a letter stating whether they could agree on a record; when we did not receive any such notification, we concluded the parties could not agree on a substituted record. In his appeal, appellant asserts he is entitled to a new trial in each of the original causes because the court reporter's record has been lost or destroyed through no fault of his own. See Tex. R. App. P. 34.6(f). Appellant asserts the missing records contain his guilty pleas and the subsequent revocations. He complains that without the records, it is difficult to determine whether his pleas were pursuant to plea bargains and, if so, whether the pleas were made knowingly, freely, and voluntarily. To the extent appellant complains about the lack of a record in each of the three original causes, his arguments clearly pertain to the convictions resulting from his original pleas. This Court has no jurisdiction to address appellant's complaints regarding those convictions because his notice of appeal was filed October 2001-after his probation was finally revoked and over one year after the entry of each of his negotiated pleas. See Manuel v. State, 994 S.W.2d 658, 661 (Tex.Crim.App. 1999); Davis v. State, 977 S.W.2d 859, 861 (Tex.App.-Dallas, 1998, no pet.). Because we do not have jurisdiction to consider the voluntariness of the original pleas, the records from the original plea hearings are not necessary for the resolution of these appeals. See Daniels v. State, 30 S.W.3d 407, 408 (Tex.Crim. App. 2000) (addressing complaint of missing record from a hearing adjudicating guilt and revoking probation, and concluding the record was not "necessary to the appeal's resolution" because defendant had to appeal issues related to the original hearing at the time deferred adjudication was imposed). However, this does not settle the complete disposition of these appeals. We recognize appellant, in his brief, referenced the missing record not only from the original pleas, but also that record containing the "subsequent revocations." An appellant is entitled to a new trial:
(1) if the appellant has timely requested a reporter's record;
(2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or-if the proceedings were electronically recorded-a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter's record, or the lost or destroyed exhibit, is necessary to the appeal's resolution; and
(4) if the parties cannot agree on a complete reporter's record.Tex. R. App. P. 34.6(f). Our prior orders in these appeals have resolved factors one, two, and four in appellant's favor. Regarding the third factor, it is appellant's burden to establish that a missing portion of a record is necessary to resolution of an appeal. Doubrava v. State, 28 S.W.3d 148 (Tex.App.-Eastland 2000, pet. ref'd). Because we have no portion of the reporter's record available to appellant or to this Court, and because we liberally construe appellant's brief, we conclude appellant has sufficiently argued the record is necessary to the resolution of an appeal from the revocation hearing. We resolve against appellant his three issues on appeal to the extent they complain of the original convictions in cause numbers F95-45906-MH, F97-46151-MH, and F00-46312-NH. To the extent appellant complains of the revocation hearing, however, we resolve appellant's issues on appeal in his favor. Accordingly, we reverse the October 21, 2001 judgment revoking appellant's probations in cause numbers F95-45906-MH, F97-46151-MH, and F00-46312-NH.
The plea document appears to indicate appellant's plea was open. However, the written judgment shows the sentence was in accordance with a plea bargain agreement. Furthermore, on page one of his brief, appellant refers to all three pleas as "negotiated."
Rule 38.9 requires that we liberally construe briefs. See Tex. R. App. P. 38.9. Unless we find a flagrant violation of rule 38, we will address "every subsidiary question that is fairly included" in the point presented for review. See id. 38.1(e), 38.9(a); see also White v. State, 50 S.W.3d 31, 45 (Tex.App.-Waco 2001, pet. ref'd).