Summary
setting deadline for reporter's record and warning appellant that absence of reporter's record because of his omission would limit review and decision to those issues in his brief not requiring a reporter's record for decision
Summary of this case from Thoman v. StateOpinion
NO. 07-11-00278-CR
08-26-2011
THOMAS M. THOMAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW #3 OF WILLIAMSON COUNTY;
NO. 10-08591-3; HONORABLE DOUG ARNOLD, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ORDER
Appearing pro se, appellant Thomas M. Thoman has appealed his misdemeanor conviction and sentence for failure to identify—fugitive. By this order, we dispose of all pending matters pertaining to the absence of a reporter's record and the filing of appellant's brief.
See Tex. Penal Code Ann. § 38.02 (West 2011).
Background
The clerk's record was filed on June 29, 2011. On July 11, appellant filed a motion requesting transfer of this appeal to the Third District Court of Appeals. We forwarded the motion to the Supreme Court of Texas, where it was denied by order. Also on July 11, appellant filed a one-page document entitled "appeal." It states two issues and indicates a "memorandum in support" will follow.
This appeal was transferred to this court from the Third Court of Appeals by docket equalization order of the Supreme Court of Texas. See Tex. Gov't Code Ann. § 73.001 (West 2005).
In a status report filed on July 14, the court reporter notified us that appellant had not requested the reporter's record and had not paid or made acceptable payment arrangements for its preparation. We ordered appellant to satisfy the requirements of the court reporter by August 1. On August 3, appellant filed a document entitled "notice and demand for court record." Therein he demanded preparation of the reporter's record without payment. The following day the reporter filed a letter indicating appellant had not made satisfactory payment arrangements. She enclosed a copy of a letter from appellant to her whereby he offered to pay for the reporter's record "in gold or silver coins." By letter of August 10, we directed appellant to file a motion and affidavit according to Appellate Rule 20.2 if he believed himself indigent. We afforded him ten days to do so.
On August 23, the clerk of this court learned from the trial court clerk that appellant had not filed a motion and affidavit of indigence. Also on August 23, appellant filed with this court a document entitled "notice and demand for due process under the law of the land." By this document, appellant indicated his intention not to assert indigence, but nonetheless asserted he was entitled to a reporter's record on demand since "due process of the law of the land" entitled him to be heard on appeal.
Discussion
The obligation of the court reporter to prepare, certify, and file the reporter's record does not mature until, among other things, the party responsible for payment makes payment or satisfactory arrangements or is entitled to proceed without payment. Tex. R. App. P. 35.3(b)(3). A party believing himself indigent is entitled to apply to the trial court for an order and if that court finds indigency it must order the reporter to prepare a transcript. Tex. R. App. P. 20.2. The Appellate Rules do not, however, grant an appellant a free reporter's record merely because he finds the indigence procedure "repugnant," chooses to deal in a means of exchange other than United States currency, or believes "due process of the law of the land" obligates the county to pay for the reporter's record without a showing of indigence.
Tex. R. App. P. 35.3(b) provides:
Reporter's Record. The official or deputy reporter is responsible for preparing, certifying, and timely filing the reporter's record if:
(1) a notice of appeal has been filed;
(2) the appellant has requested that the reporter's record be prepared; and
(3) the party responsible for paying for the preparation of the reporter's record has paid the reporter's fee, or has made satisfactory arrangements with the reporter to pay the fee, or is entitled to appeal without paying the fee.
Orders
We find appellant's "notice and demand for court record" and "notice and demand for due process under the law of the land," each lack merit. Any relief appellant seeks through these documents is denied.
To the extent appellant intended the document entitled "appeal" filed on July 11 as his appellate brief, the document is struck. Whether appearing pro se or by counsel, appellant shall file a brief complying with Appellate Rule 38.1. Tex. R. App. P. 38.1.
The reporter's record shall be filed by September 12, 2011. Because appellant is not proceeding as an indigent, he is not entitled to a free reporter's record. Nothing herein precludes appellant from purchasing the reporter's record under payment arrangements acceptable to the reporter, but the reporter has no obligation to prepare, certify, and file the reporter's record until appellant satisfies the requirements of Appellate Rule 35.3(b)(2) and (3). The reporter shall file a status report if the reporter's record is not filed by September 12, 2011.
Appellant's brief shall be filed on or before September 29, 2011. If the reporter's record is not filed, due to the fault of appellant, we will only consider and decide those issues or points in his brief that do not require a reporter's record for a decision. Tex. R. App. P. 37.3(c).
It is so ordered.
Per Curiam
Do not publish.