McDonald, Cedric LaSalle v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Opinion filed December 19, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01056-CR

____________

CEDRIC LASALLE MCDONALD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262th District Court

Harris  County, Texas

Trial Court Cause No. 746,569

O P I N I O N

Appellant, Cedric Lasalle McDonald, appeals his conviction for possession of cocaine in the amount of more than one gram and less than four grams. We affirm.

On April 8, 1997, appellant entered a plea of guilty to the offense of possession of cocaine and was placed on deferred adjudication for a period of six years. On September 11, 2001, appellant pled true to a motion to adjudicate guilt and stipulated that he had used PCP and cocaine while on community supervision and failed to perform community service as directed. He was sentenced to five years= confinement and a $750.00 fine. Included in the documents appellant filed with the trial court is a signed and initialed statement wherein appellant agreed to Awaive the right to have a court reporter record [his] plea of guilty or nolo contendere or true.@

In appellant=s sole point of error, he claims he was denied a meaningful record on appeal due to the court reporter=s failure to make a full record of the appellant=s punishment hearing. This argument lacks merit.

Texas courts are split on the duties of court reporters and the rules that properly govern them. The Thirteenth Court of Appeals relies upon Texas Rule of Appellate Procedure 13.1(a), which requires a court reporter to attend court sessions and make a full record of the proceedings unless excused by agreement of the parties. Mitten v. State, 79 S.W.3d 751 (Tex. App.CCorpus Christi 2002, pet. filed); Tangumav. State, 47 S.W.3d 663 (Tex. App.CCorpus Christi, 2001, pet. ref=d). Under this approach, appellant must expressly waive his right to have a reporter record the proceeding. In contrast, the First Court of Appeals finds Texas Government Code section 52.046(a) properly governs the use of court reporters. Polasek v. State, 16 S.W.3d 82 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d) (holding that rule 13.1 is void because it modifies substantive rights of litigants). Under 52.046(a), the right to a court reporter must be implemented on a party=s request. Id. at 89. We need not determine which of these analyses is correct, as appellant fails under either.

There is nothing in the record or in appellant=s brief to indicate that he requested a court reporter be present pursuant to Texas Government Code section 52.046(a). In the absence of a specific request by a party, the court has no duty to provide an official court reporter for the proceedings.

In the alternative, appellant executed a written waiver of his right to have a court reporter transcribe the proceedings. Appellant argues, however, this waiver only applied to his plea and not to the punishment phase. Upon entering a plea of guilty in a non-capital felony case, a defendant is not entitled to a bifurcated trial. Carroll v. State, 975 S.W.2d 630, 631 (Tex. Crim. App. 1998); Thom v. State, 563 S.W.2d 618, 619 (Tex. Crim. App. 1978). Upon entering a guilty plea, the procedure becomes a unitary trial to determine the remaining issue of punishment. Carroll, 975 S.W.2d at 631; Ricondo v. State, 634 S.W.2d 837, 841 (Tex. Crim. App. 1982). In a unitary trial, where a defendant has pled guilty, no separate punishment phase exists. Carroll, 975 S.W.2d at 631. This also applies to motions to adjudicate. State v. Kersh, 2 S.W.3d 636 (Tex. App.CHouston [14th Dist.]1999, pet. granted) (holding the trial court erred in improperly bifurcating issues of guilt and punishment at adjudication). Therefore, appellant=s waiver extended to the entire proceeding.

We overrule appellant=s sole point of error. The trial court=s judgment is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed December 19, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish CTex. R. App. P. 47.3(b).