Allen v. State

Full title: MARCUS TREMAINE ALLEN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Dec 16, 2008

Nos. 14-08-00048-CR, 14-08-00049-CR (Tex. App. Dec. 16, 2008)

Opinion

Nos. 14-08-00048-CR, 14-08-00049-CR

Memorandum Opinion filed December 16, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 180^th District Court, Harris County, Texas, Trial Court Cause Nos. 1075477 1079267.

Panel consists of Justices ANDERSON and FROST, and Senior Justice HUDSON.^_

_ Senior Justice J. Harvey Hudson sitting by assignment.

MEMORANDUM OPINION

J. HARVEY HUDSON, Senior Justice.

Appellant, Marcus Allen, was charged by indictment with possession of a controlled substance with intent to deliver, and unlawful possession of a weapon by a felon. Appellant filed a motion to suppress evidence in each case alleging he was arrested without probable cause. Both motions were denied. Appellant then pled "guilty" to both charges without an agreed recommendation as to punishment. He was sentenced to 15 years' confinement for possession of a controlled substance and 10 years for possession of a weapon by a felon. On appeal, appellant contends, without a reporter's record, the trial court erred in denying his motions to suppress evidence. Appellant further challenges the legal and factual sufficiency of the evidence supporting his convictions. We affirm.

MOTIONS TO SUPPRESS

Appellant first contends the trial court erred in denying his motions to suppress because there was no probable cause to arrest him. We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to the trial court's findings of historical fact supported by the record and reviewing de novo mixed questions of law and fact not turning on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The trial judge is the exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony at the suppression hearing. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). As the trier of fact, the trial court is free to believe or disbelieve all or any part of a witness's testimony, even if the testimony is uncontroverted. Id.; Marsh v. State, 140 S.W.3d 901, 905 (Tex.App.-Houston [14th Dist] 2004, pet. ref(d). In reviewing a trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). If the trial court's ruling is reasonably supported by the record and is correct under any theory of the law applicable to the case, the reviewing court will sustain it upon review. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). According to the trial court's docket, a court reporter was present at both hearings on the motions to suppress. However, the reporter's record is not before this court. Appellant asks this court to determine whether the trial court abused discretion based solely on the clerk's record. The absence of a reporter's record is fatal to appellant's contention that the trial court abused its discretion in denying his motions to suppress, because the clerk's record alone does not show an abuse of discretion. See Portillo v. State, 117 S.W.3d 924, 929 (Tex.App.(Houston [14th Dist.] 2003, no pet.). Appellant timely filed a notice of appeal in each case on January 4, 2008. The clerk's record in each case was filed on January 31, 2008. On February 6, 2008, letters were filed by the court reporter indicating that a reporter's record existed in each case. We notified the court reporter that the records would be due on February 11, 2008. We then sent a letter to the reporter and to appellant's counsel on February 22, 2008, stating that the reporter's records had not been filed and ordered that they be produced by March 10, 2008. In response to our letter, the court reporter explained that appellant had not made arrangements for payment of the records and that appellant was not appealing as indigent. Appellant did not file a response. Thus, on March 20, 2008, we issued an order requiring appellant to file a brief by April 9, 2008. When, as here, an issue on appeal involves matters omitted from the record due to the appellant's failure to request or pay for the record, then the appellant's actions will prevent us from adequately addressing the dispute. Perez v. State, 261 S.W.3d 760, 764 (Tex.App.(Houston [14th Dist.] 2008, no pet.). Appellant has effectively waived any complaint on these issues. See id. Although the court reporter is responsible for preparing, certifying, and timely filing the reporter's record, that responsibility is conditioned upon the appellant's filing a notice of appeal, requesting that the reporter's record be prepared, and paying for the reporter's record. Tex. R. App. P. 35.3(b); Portillo, 117 S.W.3d at 929; In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex.App.(Amarillo 1999, no pet.). The Rules of Appellate Procedure provide:

[I]f the clerk's record has been filed, the appellate court may (after first giving the appellant notice and a reasonable opportunity to cure (consider and decide those issues or points that do not require a reporter's record for a decision. The court may do this if no reporter's record has been filed because: (1) the appellant failed to request a reporter's record; or (2) (A) appellant failed to pay or make arrangements to pay the reporter's fee to prepare the reporter's record; and (B) the appellant is not entitled to proceed without payment of costs.

Tex. R. App. P. 37.3(c). Because appellant has failed to provide a reporter's record, and we have supplied ample opportunity to do so, we must determine whether the issues presented by appellant may be decided without a reporter's record. See id.; Portillo, 117 S.W.3d at 929. Whether the trial court abused its discretion in denying appellant's motions to suppress the evidence arising out of appellant's arrest is dependent upon the evidence presented during the motion to suppress hearing. See Portillo, 117 S.W.3d at 929. The evidence would exist only in the reporter's record, not the clerk's record. See id. Thus, the clerk's record alone cannot provide the basis for our resolution of appellant's assertion of error. See id. We must review the reporter's record to determine whether the trial court's decision constituted an abuse of discretion. Id. Because the reporter's record is not available for our review, appellant cannot point to anything in that record that demonstrates the trial court's denial of his motion was outside the realm of reasonableness. See Narvaiz v. State, 840 S.W.2d 415, 428 (Tex.Crim.App. 1992). Thus, we overrule appellant's first issue.

LEGAL AND FACTUAL SUFFICIENCY

In his second issue, appellant challenges the legal and factual sufficiency of the evidence supporting his convictions. The Texas Code of Criminal Procedure requires the State to offer sufficient proof to support any judgment based on a "guilty" plea in a felony case tried to the court.¹ Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Keller v. State, 125 S.W.3d 600, 604 (Tex.App.-Houston [1st Dist.] 2003, pet. dism(d). The State must "introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same." Tex. Code Crim. Proc. Ann. Art. 1.15 (Vernon 2005). Reviewing the sufficiency of the evidence to support a judgment under article 1.15 upon a plea of guilty or nolo contendere, however, requires that we apply a different standard of review than we employ when reviewing legal sufficiency and factual sufficiency for convictions that follow a "guilty" plea. Keller, 125 S.W.3d at 604(05 (citing Jackson v. Virginia, 443 U.S. 307, 318(19 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). Legal-sufficiency-review analysis under Jackson is appropriate only when the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt. Keller, 125 S.W.3d at 605 (citing Ex Parte Williams, 703 S.W.2d 674, 678 (Tex.Crim.App. 1986)). The Jackson standard does not apply when a defendant knowingly, intelligently, and voluntarily enters a "guilty" plea, and there is no federal constitutional requirement that a "guilty" plea in a state criminal prosecution must be corroborated by evidence of guilt. Id. When a defendant enters a knowing and voluntary guilty plea without benefit of an agreed recommendation as to punishment, he waives all nonjurisdictional defects occurring prior to entry of the plea. Palacios, 942 S.W.2d at 750 (citing Jack v. State, 871 S.W.2d 741, 742(44 (Tex.Crim.App. 1994)); Keller, 125 S.W.3d at 605. Moreover, the sufficiency of the evidence to support a conviction is a nonjurisdictional issue. Palacios v. State, 942 S.W.2d 748, 750 (Tex.App.-Houston [14t Dist.] 1997, pet. ref(d) (citing Davis v. State, 870 S.W.2d 43, 47 (Tex.Crim.App. 1994)). Further, appellant's written judicial confession, standing alone, is sufficient to sustain his conviction upon his plea of guilty, and it also satisfies the requirements of article 1.15 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005);²Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979); Stewart v. State, 12 S.W.3d 146, 148 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Both "guilty" pleas contained in the clerk's record state that they were entered in open court, and that appellant waived the right to trial by jury. He also waived the appearance, confrontation and cross-examination of witnesses, and the right against self-incrimination. Finally, he confessed to the acts alleged. Accordingly, we overrule appellant's arguments challenging the legal and factual sufficiency of the evidence.

CONCLUSION

We conclude that appellant's failure to complete the record before this court waived his complaint regarding the trial court's denial of the motions to suppress. Appellant also waived his challenge to the sufficiency of the evidence when he entered a "guilty plea in each case. Thus, the judgments of the trial court are affirmed.^fn1 Pleas of guilty to a jury are treated differently. See Keller v. State, 125 S.W.3d 600, 604 n. 1 (Tex.App.-Houston [1st Dist.] 2003, pet. dism(d).