Darla Gayle Jackson v. The State of Texas--Appeal from County Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00211-CR

Darla Gayle Jackson,

Appellant

v.

The State of Texas,

Appellee

From the County Court

Bosque County, Texas

Trial Court No. 15393

MEMORANDUM Opinion

A jury found Darla Jackson guilty of criminal trespass. The trial court sentenced her to a fine of $500. Jackson appealed her conviction. We affirm.

Jackson represented herself at trial and represents herself on appeal. The trial court denied her application for court appointed counsel on appeal. Jackson does not appeal that decision.

By a letter dated October 30, 2006, Jackson informed us that she was unable to pay for the reporter s record. She had already paid for the clerk s record. Jackson was then warned by the Clerk of this Court that if she did not pay the reporter s fee or make arrangements to pay the reporter s fee, the appeal would be submitted on the clerk s record alone. Jackson did not pay or make arrangements to pay the reporter s fee, and no reporter s record was filed.

An appellant has the burden to properly initiate the completion of a record sufficient to illustrate error. Tex. R. App. P. 35.3; 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 the appellant does not, and an issue on appeal involves matters omitted from the record due to the appellant s failure to request or pay for same, then the appellant s actions will prevent us from adequately addressing the dispute. Cheek, 65 S.W.3d at 730; Kent, 982 S.W.2d at 641. An appellant effectively waives any complaint by so inhibiting us. Id. We may, however, consider and decide those issues that do not require a reporter s record for a decision. Tex. R. App. P. 37.3(c).

Jackson s brief does not comply with the Rules of Appellate Procedure in a number of ways, both in substance and in form. See Tex. R. App. P. 38.1. She does, however, direct our attention to five fairly defined questions of which she seeks our review. Jackson is representing herself in this appeal. We will give her considerable latitude in the consideration of what she has presented as issues for our review and the form of the brief. This latitude will allow us to address the issues in a timelier manner. See Tex. R. App. P. 2.

Jackson complains in her first issue that the trial court erred in proceeding to trial having rejected her request for legal counsel. There is nothing in the clerk s record that indicates Jackson requested a lawyer prior to or during her trial. And without a reporter s record, we have no way of knowing if an oral request was made to the court and, if so, whether the trial court s decision on that request was correct. Because Jackson did not pay for a reporter s record, she has prevented an adequate review of this issue and error, if any, is waived. See Cheek, 65 S.W.3d at 730. Jackson s first issue is overruled.

Likewise, review of Jackson s complaints that the trial court erred 1) in its determination that the State sustained its burden of proof (issue 3); 2) in the judicial process of presumption of innocence (issue 4); and 3) in not allowing cross examination of a witness (issue 5) are dependent upon the existence of a reporter s record. Because Jackson did not pay for a reporter s record, she has prevented our review of these issues and error, if any, is waived. See Cheek, 65 S.W.3d at 730. Issues three, four, and five are overruled.

Jackson complains in her second issue that the trial court erred in proceeding to trial without probable cause. In the body of her argument, however, she contends the justice of the peace did not have probable cause to issue a warrant for her arrest.

An arrest warrant must provide the magistrate with sufficient information to support an independent judgment that probable cause exists for the warrant. McFarland v. State, 928 S.W.2d 482, 509 (Tex. Crim. App. 1996); Jones v. State, 568 S.W.2d 847, 855 (Tex. Crim. App. 1978). The warrant s affidavit need only contain probable cause; it need not contain sufficient information that would convince a jury of the defendant's guilt beyond a reasonable doubt. McFarland, 928 S.W.2d at 509. The arrest warrant and affidavit in support thereof are not a part of the clerk s record in this appeal, and the trial court clerk is not required to include the arrest warrant in the clerk s record. Tex. R. App. P. 34.5 (a). A party may file with the trial court clerk a written designation specifying items to be included in the record. Id. 34.5 (b).

Jackson filed a written designation but did not request the inclusion of the arrest warrant and affidavit. Because Jackson did not request the warrant and affidavit to be a part of the clerk s record, we cannot adequately review this issue and error, if any, is waived. See Green v. Kaposta, 152 S.W.3d 839, 842 (Tex. App. Dallas 2005, no pet.); Ruiz v. State, No. 13-97-497-CR, 1999 Tex. App. LEXIS 1780, *7-8 (Tex. App. Corpus Christi 1999, no pet.). Jackson s second issue is overruled.

The trial court s judgment is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed October 17, 2007

Do not publish

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