Park, Hyung v. The State of Texas--Appeal from 12th District Court of Walker County

NUMBER 13-00-036-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

HYUNG PARK, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 12th District Court

of Walker County, Texas.

O P I N I O N

Before Justices Ya ez, Castillo, and McCormick[1]

Opinion by Justice Castillo

Appellant Hyung Park pled guilty to a Class A misdemeanor offense of possession of marijuana and was sentenced, pursuant to a plea bargain agreement, to a three hundred dollar fine.[2] Appellant filed a notice of appeal from this conviction, specifying that the substance of the appeal was raised by a written motion and ruled on prior to trial and, in a single issue, challenges the trial court=s purported decision on his motion to suppress. We affirm.

Preservation of Error

While appellant asserts that he is appealing the trial court=s denial of his pretrial motion to suppress, no such order appears in the record.[3] Although the docket sheet indicates that the motion was denied on August 17, 1999,[4] the clerk=s record contains no written order and the reporter=s record of the hearing likewise reflects no oral ruling from the bench. The record of the plea similarly makes no allusion to any ruling on the motion to suppress, nor was the plea made conditional to the right to appeal any decision on the motion to suppress. It is incumbent upon the accused to obtain a ruling on his motion to suppress in order to be able to preserve any error for appellate review. Tex. R. App. P. 33.1(a)(2)(A); Garcia v. State, 45 S.W.3d 733, 736 (Tex. App.BCorpus Christi 2001,no pet.)(where record contained no written order and reflected no oral ruling, error was not preserved even though docket sheet notation indicated that motion to suppress was denied). Appellant has failed to preserve any asserted error concerning the overruling of his motion. Garcia, 45 S.W.3d at 736. We overrule appellant=s sole issue and affirm the judgment of conviction.

ERRLINDA CASTILLO

Justice

Justice McCormick concurring.

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 18th day of July, 2002.

[1] Retired Court of Criminal Appeals Judge Michael J. McCormick assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).

[2]Tex. Health & Safety Code Ann. '' 481.121(a) & (b)(2) (Vernon Supp. 2002).

[3]Pursuant to our authority under Texas Rule of Appellate Procedure 34.5, we ordered the trial clerk to provide us with a supplemental record containing the written ruling on the motion to suppress. Tex. R. App. P. 34.5. The clerk has certified that no written record of any ruling, apart from the docket entry, exists.

[4]It is well settled that a docket sheet entry may not substitute as an order. In re Fuentes, 960 S.W.2d 261, 264 (Tex. App.BCorpus Christi 1997, original proceeding).