Opinion
No. 1329.
September 21, 1978.
Appeal from the 105th District Court, Nueces County, Vernon D. Harville, J.
William B. Mobley, Jr., Dist. Atty., Kenneth G. Botary, Asst. Dist. Atty., Corpus Christi, for appellant.
Juan P. Gonzalez, Huerta, Pena, Beckman, Rodriguez Alfaro, Corpus Christi, for appellee.
OPINION
This is an appeal from a judgment which denied forfeiture of a camera, which allegedly was used to conceal and transport cocaine, a controlled substance, in violation of law. Suit was filed by the State of Texas against Ferdinando Trevino on March 1, 1977. It was alleged that on or about August 17, 1976, the defendant Ferdinando Trevino, the owner of a certain movie camera, used the camera as a container to conceal and transport the controlled substance in violation of Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 5.03(a)(2) and (3); and that the said defendant entered a plea of guilty to possession of a controlled substance. Plaintiff prayed that the camera be forfeited to the District Attorney of Nueces County, Texas as provided by Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 5.08(a)(3). Ferdinando Trevino, whose whereabouts were unknown at all times pertinent to this appeal, was served by publication, and an attorney ad litem was appointed to represent him. A general denial was filed by the attorney ad litem on November 4, 1977.
Following a trial before the court, on December 1, 1977, judgment was rendered on December 20, 1977 which denied forfeiture of the camera. Plaintiff has appealed.
The document denominated the "Statement of Facts", and filed in this Court on February 9, 1978, does not contain any evidence of any nature or kind. It was certified by the court reporter as containing "a true and correct transcription of all the proceedings" which took place at the trial, and was agreed to by counsel for both parties and approved by the trial judge. It did not constitute a statement of facts as contemplated by Rule 377, T.R.C.P. It is nothing more than a transcription of conversation between the trial judge and counsel for the parties and of the statements by the judge as to what he intended to do concerning the controversy. Counsel for the parties represented in writing to this Court when the case was submitted that no evidence was presented to the trial court at the trial of this case. In that state of the record, the trial court properly rendered judgment which denied plaintiff a forfeiture of the camera in question.
In this appeal, it was plaintiff's burden, in order to obtain a reversal of the trial court's judgment, to bring to this Court a record which would require such a reversal. It did not meet that burden. Fundamental error is not presented by the record. Under the circumstances, we have no choice but to affirm the judgment of the trial court.
AFFIRMED.