Joseph Rodriquez v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-93-046-CR

JOSEPH RODRIQUEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 11,794

O P I N I O N

On January 27, 1989, Joseph Rodriquez pleaded nolo contendere to the charge of aggravated assault of a police officer with a deadly weapon. See Tex. Penal Code Ann. 22.02 (Vernon 1989 & Supp. 1994). The indictment alleged that the "deadly weapon" was "two large dogs under the control of [Rodriquez], which were in the manner of their use and intended use capable of causing death and serious bodily injury, which dogs [Rodriquez] turned loose upon the [peace officer]." Pursuant to a plea agreement, the court deferred an adjudication of guilt, set punishment at six years' imprisonment, and probated the prison term. See Tex. Code Crim. Proc. Ann. art. 42.12, 5 (Vernon Supp. 1994).

In October 1992, the State filed a "Motion to Adjudicate Guilt and Revoke Probation," and later filed an amended motion. On December 3 a different judge, Judge B.B. Schraub, presided over the hearing to revoke Rodriquez's probation. The court found that Rodriquez had violated the conditions of his probation. The court also found him guilty of the original charge of aggravated assault on a peace officer with a deadly weapon. On March 5, 1993, Judge Robert Jones presided at the punishment hearing over Rodriquez's objection that Judge Schraub should have conducted the hearing. Judge Jones assessed punishment at ten years' imprisonment.

Rodriquez appeals on three points. He asserts in his first two points that he is entitled to a new trial because, through no fault of his own, there is not a complete or properly certified statement of facts from his original plea of nolo contendere. See Tex. R. App. P. 50(e). In his third point, he asserts that the court erred in entering an affirmative finding of a deadly weapon at the December 3 hearing because there had been no affirmative finding of same at the time of his original plea. We will affirm the judgment.

Statement of Facts

If an appellant has made a timely request for a statement of facts, but the court reporter's notes and records have been lost or destroyed without the appellant's fault, he is entitled to a new trial unless the parties agree on a statement of facts. Id. If an appellant is deprived of part of the statement of facts which he has timely requested through no fault of his own or of his counsel's an appellate court cannot affirm his conviction. See id.; McLennan v. State, 796 S.W.2d 324, 326 (Tex. App. San Antonio 1990, pet. ref'd).

To prevail under Rule 50(e), the appellant must show that (1) he timely requested the statement of facts and (2) the court reporter's notes and records have been lost or destroyed without the appellant's fault. Culton v. State, 852 S.W.2d 512, 514 (Tex. Crim. App. 1993). Under Rule 53(a) a "timely request" is a request made in writing to the official court reporter on or at the time prescribed for perfecting the appeal. Id.; Tex. R. App. P. 53(a). In addition to the explicit requirements of Rule 50(e), an appellant must show due diligence in attempting to secure a complete statement of facts. Culton, 852 S.W.2d at 514; Dunn v. State, 733 S.W.2d 212, 215 (Tex. Crim. App. 1987).

Appellate counsel was appointed to represent Rodriquez on October 15, 1993. By a letter dated January 21, 1994, counsel requested a statement of facts from the 1987 plea hearing. The letter was directed to Jackie Wilson, the official court reporter of the 52nd District Court. Wilson prepared a statement of facts from that hearing and attached the following affidavit:

I, Jacquelyn Wilson, a Certified Shorthand Reporter in and for the State of Texas did not take the proceedings in the above-entitled cause in shorthand, but transcribed same from cassette tapes from said hearing, and the above-entitled transcription is an accurate transcription of said cassette tape of that part of the hearing reflected by said transcription, to the best of my ability.

Signed this the 25th day of February, 1994.

Rodriquez cites to this affidavit for the proposition that "[Wilson's] affidavit sets out that Margye Haferkamp, the official court reporter at the time of the plea[,] is no longer available and that the transcription of the statement of facts was made from cassette tapes of the hearing and those records are not certified as accurate or complete." Likewise, the State asserts, "Ms. Wilson's affidavit reflects that Margye Haferkamp was the official court reporter on January 27, 1989." Thus, the State argues, the record fails to show that Rodriquez made a proper and timely request to the official court reporter whose duty is was to prepare the record.

Contrary to both parties' contentions, Wilson's affidavit says nothing about Haferkamp being the official court reporter at the time of the hearing. // Assuming that Haferkamp was the official court reporter, there is nothing in the record to indicate that she was unavailable or that her notes had been lost or destroyed. The statement of facts was filed with this court March 1. Rodriquez filed his brief on March 11 asserting that he was entitled to a new trial because, through no fault of his own, there is not a complete statement of facts from the original plea hearing.

The case before us is analogous to Culton. See Culton, 852 S.W.2d at 514-15. Culton was placed on deferred adjudication in the 176th District Court of Harris County in 1987. The State filed a motion to adjudicate his guilt in 1990, and the case was transferred to the 248th District Court of Harris County. He was adjudged guilty and sentenced to prison. On appeal, Culton made a written request to the court reporter of the 248th District Court to prepare a statement of facts. The statement of facts from the plea proceeding in the 176th District Court was omitted from the record filed by the court reporter of the 248th District Court.

The Court of Criminal Appeals held that, once Culton learned that the 1987 plea proceeding occurred in a different court, he had the burden to obtain or to show he had attempted to obtain a sufficient record to support his contentions:

Doing nothing, once appellant is aware or should be aware of the involvement of a different court, does not meet the requirements for presenting a sufficient record under Rule 50(d) or showing due diligence under Dunn. Once counsel determines that the record submitted to the court of appeals is incomplete, the proper procedure is to (a) obtain the missing portion of the record and file a motion to supplement the record, or (b) obtain an affidavit from the court reporter explaining the absence of the missing portion of the record and file a motion to supplement the record supported by affidavit(s), thereby demonstrating due diligence. See Tex. R. App. Proc. 55.

Id. at 515. As in Culton, we find nothing in the appellate record (1) showing that Haferkamp had been contacted or (2) explaining that portions of the statement of facts are missing because the note and records were lost or destroyed through no fault of Rodriquez. See id. Thus, Rodriquez failed to show due diligence in attempting to obtain the missing portion of the record. We overrule point one.

In his second point, Rodriquez argues that he is entitled to a new trial because the partial statement of facts from the original plea hearing is not properly certified. Rule 53(f) provides, "The statement of facts shall be in sufficient form to be filed in the appellate court when it is certified by the official court reporter." Tex. R. App. P. 53(f). He complains that Wilson's affidavit does not track the language found in the "Appendix of Criminal Cases." The appendix sets out a model court reporter's certificate which states that the statement of facts is a "true and correct transcription" of the proceedings "all of which occurred in open court or chambers and were reported by [the court reporter]."

Wilson's affidavit sets forth that the statement of facts from the original plea hearing is an "accurate transcription" from the cassette tapes of the hearing. Because Wilson did not take down the original proceedings, she could not certify that she had reported the proceeding. Again, the burden lay with Rodriquez to see that a sufficient record was before this court. See Tex. R. App. P. 50(d). Because we have determined that he failed to show due diligence in attempting to obtain the missing portion of the record in point one, we also overrule point two.

Deadly Weapon Finding

In his third point, Rodriquez complains that Judge Schraub, in adjudicating his guilt, erred in entering a deadly-weapon finding because there had been no affirmative finding of a deadly weapon made at the time of the original plea. Rodriquez points out that there was no affirmative finding of a deadly weapon in the "Order Deferring Adjudication."

The 1987 "Order Deferring Adjudication" states that Rodriquez was indicted for the offense of "agvt assault on a peace officer w/ deadly weapon." The order further finds "sufficient evidence of [Rodriquez's] guilt of "agvt assault on a peace officer w/ deadly weapon." Rodriquez executed a "Stipulation of Evidence" in which he did "admit, stipulate and judicially confess" that all the facts and allegations in the indictment were true. The "Stipulation of Evidence" set forth the language of the indictment namely, that Rodriquez had threatened a peace officer with imminent bodily injury and had used a deadly weapon "to[ ]wit: two large dogs." In adjudicating Rodriquez guilty in 1992, Judge Schraub made an affirmative finding that a deadly weapon had been used "having been admitted to in the stipulation of evidence made at the trial on the merits in this matter."

The partial statement of facts from the original plea hearing contains the following statements of the court:

THE COURT: Defense rests. The evidence is closed, and the Court does find beyond a reasonable doubt, Mr. Rodriquez, that you're guilty of the offense of aggravated assault on a [peace] officer. The court will not enter a finding that you used a deadly weapon and will defer adjudication of guilt at this time and place you on probation for a period of six years.

Rodriquez argues that the statements of the court at the time it placed him on deferred adjudication precluded a later finding of use of a deadly weapon. However, a deadly weapon finding is germane to punishment affecting only Rodriquez's eligibility for parole. See Tex. Code Crim. Proc. Ann. art. 42.18, 8(b)(3) (Vernon Supp. 1994).

We do not read the court's statements as a negative finding of a deadly weapon; rather, the court deferred a finding on the deadly weapon question until such time as Rodriquez might be adjudged guilty and punishment assessed. We overrule point three and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas and

Justice Vance

(Justice Cummings not participating)

Affirmed

Opinion delivered and filed September 21, 1994

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