Allison, Kenneth Richard v. The State of Texas--Appeal from Co Crim Ct at Law No 13 of Harris County

In The

Court of Appeals

For The

First District of Texas

____________

NOS. 01-01-00383-CR

01-01-00384-CR

01-01-00385-CR

01-01-00386-CR

____________

KENNETH RICHARD ALLISON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 13

Harris County, Texas

Trial Court Cause Nos. 1035262, 1035263, 1035264, and 1035265

Following a bench trial, the trial court convicted appellant of failure to drive in a single lane, (1) use of an expired driver's license, (2) failure to maintain financial responsibility, (3) and failure to identify himself to a peace officer. (4) The trial court assessed a fine of $200 for the offenses of: failure to drive in a single lane, the use of an expired driver's license, and failure to maintain financial responsibility and a $400 fine for the offense of failure to identify himself to a peace officer. (5) Appellant, who was pro se in the trial court and is pro se on appeal, challenges the judgments of the trial court in 14 issues. (6)

We affirm the four judgments of the trial court.

Issue One

In issue one, appellant contends that Officer Goonie, who appellant states issued the traffic citations involved in these appeals, was not authorized to issue the citations because Officer Goonie had never taken the oath of office required by article 16, section 1 of the Texas Constitution. See Tex. Const. art. XVI, 1. A review of the clerk's record shows that a document from the Texas Secretary of State's Office, which is attached to appellant's "Cross-Complaint Motion for Order to Show Cause," states that the Secretary of State could not find an article 16, section 1 filing for Officer Goonie.

Because appellant failed to pay for the reporter's record, this Court previously ordered these appeals to proceed on the clerk's record alone. (7) See Tex. R. App. P. 37.3(c). An appellant has the duty to initiate properly the completion of the record in order to sufficiently illustrate reversible error. Cheek v. State, 65 S.W.3d 728, 730 (Tex. App.--Waco 2001, no pet.); Kent v. State, 982 S.W.2d 639, 641 (Tex. App.--Amarillo 1998, pet. ref'd). If appellant fails to do so, and his contention on appeal involves matters omitted from the record due to his failure to request or pay for the same, then his actions prevent an appellate court from adequately addressing the dispute. Cheek, 65 S.W.3d at 730. An appellant waives his complaint by so inhibiting the appellate court.

Here, the failure of appellant to bring the reporter's record before this Court prevents us from knowing whether (1) Officer Goonie was the officer who issued the citations as alleged by appellant; (2) the document from the Secretary of State's office was admitted into evidence; (3) the State offered any rebuttal evidence relating to the document; or (4) Officer Goonie's testimony was admitted into evidence at trial. In turn, it follows that we are prevented from determining whether appellant was harmed by the alleged error. See Kent, 982 S.W.2d at 641 (holding appellant's failure to pay for reporter's record resulted in waiver of point of error that police officer's testimony should have been suppressed because officer failed to take oath required by Texas Constitution article 16, section 1; appellate court had no way of knowing whether officer's testimony or fruits of that testimony were admitted into evidence and relied on by fact finder).

Accordingly, we overrule appellant's issue one.

Issue Two and Four

In issues two and four, appellant asserts error relating to the charging instruments. In his second issue, appellant contends that the municipal court never received a copy of the information and, thus, lacked jurisdiction either to hear the four charges or to transfer them to justice court. Appellant also contends that he requested a copy of the information, but it was not provided to him. In issue four, appellant contends that the information was not filed with the justice of the peace court.

The county court's judgments state that the charging instrument in each case was an information. Appellant states in his brief that the charges against him were originally brought in La Porte municipal court and then transferred to the justice of the peace court. Following a trial in the justice of the peace court, appellant states that he appealed to county court. See Tex. Code Crim. Proc. Ann. 45.042 (Vernon Supp. 2002).

The clerk's record in these appeals does not contain any of the paperwork or filings from the municipal or justice of the peace courts. An appellant must present a sufficient record to demonstrate error that requires reversal. Cates v. State, 72 S.W.3d 681, 692 (Tex. App.--Tyler 2001, no pet.); Guzman v. State, 923 S.W.2d 792, 795 (Tex. App.--Corpus Christi 1996, no pet.). A brief's mere assertions that are not supported by evidence in the record will not be considered on appeal. Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996).

We overrule appellant's issues two and four.

Issue Three

In issue three, appellant contends that a municipal court has no authority to transfer a case to the nearest justice of the peace court. Texas Rule of Appellate Procedure 38.1(h) provides that the "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Appellant, however, failed to support his argument on this issue with legal authority or with references to the record. Conclusory arguments that cite no authority present nothing for our review. See Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992); Atkins v. State, 919 S.W.2d 770, 774-75 (Tex. App.--Houston [14th Dist.] 1996, no pet.). Because appellant's argument on this issue contains no citations to the record or legal authority, he has waived appellate review of his complaint. See Tex. R. App. P. 38.1(h). Therefore, we overrule appellant's issue three.

Issues five and eight

In issues five and eight, appellant asserts that the State was barred from "creating" an information to file in the justice of the peace and county courts more than two years after the commission of the offense. In support of this assertion, appellant cites article 12.02 of the Code of Criminal Procedure, which provides that an indictment or information for any misdemeanor must be presented within two years of the commission of the offense. See Tex. Code Crim. Proc. Ann. art. 12.02 (Vernon 1979). However, beyond these assertions, appellant provides no further legal authority or record references to support his contentions. Accordingly, appellant has waived review of these issues on appeal. See Tex. R. App. P. 38.1(h).

We overrule issues five and eight.

Issue six

In issue six, appellant states that "on the last day of the trial in the Harris County Justice of the Peace Court of Precinct 8, Place 1, the judge had the doors of the courthouse locked which barred Appellant's witness from testifying." Appellant contends that this action violated his substantive rights under article 1, section 10 of the Texas Constitution. However, beyond appellant's statement in his brief that the judge had the doors locked, appellant offers no support in the record for this assertion.

As stated above, this Court cannot review contentions that depend on factual assertions outside the record. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985). And we cannot consider mere assertions in a brief not supported by evidence in the record. Janecka, 937 S.W.2d at 476.

We overrule appellant's issue six.

Issue seven

In issue seven, appellant argues that the clerk of the justice of the peace court breached a "contract" that appellant had with the clerk to have appellant's appeal to the county court heard by the "constitutional county court," not Harris County Criminal Court of Law No. 13, which tried the cases at issue here. In support of this contention, appellant included a copy of the appeal bond filed in the justice of the peace court in the appendix to his brief. Appellant alleges the appeal bond constitutes the contract he had with the clerk; however, the appeal bond is not part of the appellate record. An appellate court cannot consider documents attached to briefs when those documents do not appear in the appellate record. See Tex. R. App. P. 34.1; Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex. Crim. App.1981). Because appellant cites to no record references in support of the argument raised in this issue and refers to facts outside the appellate record, he has waived appellate review of his complaint. See Tex. R. App. P. 38.1(h); Franklin, 693 S.W.2d at 431.

We overrule appellant's issue seven.

Issue nine

In issue nine, appellant contends the information "created" by the prosecutor was "defective on its face" because it was not signed by the county attorney or the district attorney as required by article 21.21 of the Code of Criminal Procedure. Rather, he states the information was signed by an "assistant."

Here, the record does not contain a copy of the information of which appellant complains. We cannot review contentions that depend on factual assertions outside the record. Franklin, 693 S.W.2d at 431; Rodriguez v. State, 903 S.W.2d 405, 410 (Tex. App.--Texarkana 1995, pet. ref'd). A briefs mere assertions that are not supported by evidence in the record will not be considered on appeal. Janecka, 937 S.W.2d at 476. Beyond his bare assertions that the information was not properly signed as required by article 21.21, appellant offers no further analysis, legal authorities, or record references to support this issue or to explain how he was harmed by the alleged error. Thus, appellant has waived appellate review of his complaint. See Tex. R. App. P. 38.1(h).

We overrule appellant's issue nine.

Issues 10 and 11

In issues 10 and 11, appellant complains that the trial court failed to "consider" or "hear" his "Cross-Complaint against the defacto police officer," failed to issue subpoenas, and failed to grant appellant's motion for continuance.

With regard to these issues, appellant has failed to provide record references showing that these complaints were presented to and rule on by the trial court, or, alternatively, that the trial court failed to rule on these matters and appellant objected to such failure to rule. See Tex. R. App. P. 33.1(a), 38.1(d), (f), (h). Appellant must direct this Court to that portion of the record supporting the alleged error. Dooley v. State, 999 S.W.2d 796, 797-98 (Tex. App.--Tyler 1998, pet. ref'd); Lape v. State, 893 S.W.2d 949, 953 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). By failing to direct this Court to portions of the record supporting the alleged error, appellant has waived these complaints. See Tex. R. App. P. 33.1(a), 38.1(d), (f), (h).

We overrule appellant's issues 10 and 11.

Issue 12

In issue 12, appellant complains that the La Porte municipal court violated his right to a speedy trial by resetting his case for two years before it was transferred to the justice of the peace court for trial. As with many of the other issues already discussed, appellant has failed to provide a record to support his argument raised in this issue. The record contains no paperwork from the municipal court, and we have no reporter's record from the trial court. Without support in the record, we cannot consider appellant's mere assertions that he was denied the right to a speedy trial. See Janecka, 937 S.W.2d at 476.

We overrule appellant's issue 12.

Issue 13

In issue 13, appellant complains that a double jeopardy violation occurred because he served 15 days in jail related to his inability to pay the fine assessed for the traffic violations at issue in this case. In conjunction with his double jeopardy argument, appellant contends that the law does not permit incarceration for Class "C" misdemeanors, such as the traffic violations involved in this case, or for his inability to pay the assessed fine. However, appellant fails to explain how the incarceration supports his claim of "double jeopardy." We can neither provide appellant's argument for him, nor speculate how the alleged incarceration constitutes "double jeopardy."

Appellant also fails to provide record references in support of his arguments in this issue. Without record references, cogent legal argument, or citation to relevant legal authorities, appellant has waived appellate review of this issue. See Tex. R. App. P. 38.1(h).

We overrule appellant's issue 13.

Issue 14

In issue 14, appellant complains that all actions and orders of the Honorable Jean Hughes, who presided over appellant's trial in Harris County Criminal Court at Law No. 13, were invalid because Judge Hughes failed to take her oath of office and file a statement denying her commission of bribery as required by the Texas Constitution. See Tex. Const. art. XVI, 1(c) (oath of office), (d) (anti-bribery oath). In support of this argument, appellant has included in the appendix to his brief a document from the Secretary of State's office, indicating that Judge Hughes has taken her constitutionally required oath as the elected judge of Harris County Criminal Court at Law No. 15. Although it is not entirely clear from appellant's brief, appellant appears to offer this document as some indication that Judge Hughes was not qualified or entitled to preside over Harris County Criminal Court at Law No. 13.

Appellant's argument fails for several reasons. As previously discussed, we may not consider documents attached to briefs when those documents do not appear in the appellate record. See Tex. R. App. P. 34.1; Vanderbilt, 629 S.W.2d at 717. Here, the document appellant offers in support of this argument does not appear in the appellate record.

In addition, we have recently held in Murphy v. State that the presumption of regularity of trial court judgments and proceedings applies to appellate challenges regarding an alleged failure of a trial judge to take her constitutionally required oaths. Murphy v. State, no. 01-99-00468-CR, slip op. at 4 (Tex. App.--Houston [1st Dist.] 2002, no pet. h.) (designated for publication). Other than the document attached to appellant's brief, which we may not consider, appellant cites to no proof in the record that Judge Hughes did not take the constitutionally required oaths or failed to file a statement denying her commission of bribery.

Lastly, pursuant to Government Code subsection 74.121(a), Judge Hughes, as the elected judge of Harris County Criminal Court at Law No. 15, had the authority to preside over Harris County Criminal Court at Law No. 13. Tex. Gov't Code Ann. 74.121(a) (Vernon 1988).

We overrule appellant's issue 14.

We affirm the trial court's judgments.

Justice

Panel consists of Justices Hedges, Keyes, and Evans.

Do not publish. Tex. R. App. P. 47.4.

1. Trial court cause number 1035262; appellate cause number 01-01-00383-CR.

2. Trial court cause number 1035263; appellate cause number 01-01-00384-CR.

3. Trial court cause number 1035264; appellate cause number 01-01-00385-CR.

4. Trial court cause number 1035265; appellate cause number 01-01-00386-CR.

5. Although the procedural history of these traffic offense cases is not entirely clear from the record, these appeals apparently arise from a trial de novo in County Criminal Court at Law No. 13 pursuant to section 45.042 of the code of criminal procedure. Section 45.042 provides that county courts may hear appeals from municipal or county courts. See Tex. Code Crim. Proc. Ann. 45.042 (Vernon Supp. 2002). Section 45.042 further provides that "[u]nless the appeal is taken from a municipal court of record and the appeal is based on error reflected in the record, the trial shall be de novo." Id. 45.042(b).

6. Under the heading "Issues Presented for Review" at the front of appellant's brief, he lists 20 issues; however, in the body of his brief, appellant discusses only 14 separate "arguments," which do not correspond with the order of the 20 issues initially listed in appellant's brief. Appellant has waived any issue that he did not brief. See Tex. R. App. P. 38.1(h). We will address only the 14 issues discussed in the body of appellant's brief.

7. We issued an order abating this appeal and ordering the trial court to conduct a hearing to determine whether appellant wished to prosecute these appeals and to determine whether appellant was indigent. Following a hearing, the trial court found that appellant wished to proceed with the appeals, that appellant was not entitled to appointed counsel, and that appellant was not indigent.

8. The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.