CHESTER ANDREW BROCKWAY,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00256-CR
NO. 05-88-00257-CR
NO. 05-88-00258-CR
NO. 05-88-00259-CR
CHESTER ANDREW BROCKWAY,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, THOMAS AND BURNETT
OPINION BY JUSTICE BURNETT
APRIL 4, 1989
        Chester Andrew Brockway appeals from a denial of a motion for new trial after a deferred adjudication and a conviction for three other counts of aggravated sexual assault of a child under fourteen. The trial court assessed punishment at ten years' probation with a deferred adjudication of guilt on the first charge and sentenced Brockway to eighteen years' confinement on each of the other three charges.
        Although Brockway presents a separate brief for each case, they were tried together and the points of error are the same. Thus, we will address them together. In three points of error, Brockway contends that the trial court erred because: 1) the evidence is insufficient to support his convictions; 2) the trial court failed to give the proper admonishments; and 3) he is entitled to a new trial because his right to a complete statement of facts on appeal was violated.
        In cause number 05-88-00256-CR, Brockway received ten years' probation with a deferred adjudication of guilt. The State insists that because the determination of guilt was deferred, this Court has no jurisdiction to hear an appeal of that case. The State relies on McDougal v. State, 610 S.W.2d 509 (Tex. Crim. App. 1981), where the court held that no appeal can be taken while a probationer is serving a deferred adjudication. However, the Code of Criminal Procedure now provides that a defendant who receives a deferred adjudication may exercise his right to appeal. TEX. CRIM. PROC. CODE ANN. art. 44.01(j) (Vernon Supp. 1989). Thus, this court may properly consider Brockway's point of error in cause number 88-00526-CR.
        Brockway was charged with the sexual assault of his seven, ten, and thirteen year old nieces. He pled nolo contendre to each charge but stipulated that each child would testify to the crimes as charged in the indictments. In his first point of error, Brockway maintains that the evidence is insufficient to support his convictions.
        In testing the sufficiency of the evidence, this court must review the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex. Crim. App. 1984). As reflected in the supplemental transcript, a stipulation as to each child's testimony was admitted into evidence. Each stipulation contains each element of the charged offense. Thus, the evidence in each case supports the conviction. Brockway's first point of error is overruled.
        In his second point of error, Brockway asserts that the trial court failed to properly admonish him as to the consequences of a nolo contendre plea. See TEX. CRIM. PROC. CODE ANN. art 26.13 (Vernon 1966). The supplemental transcript reflects that Brockway was properly admonished. Accordingly, point of error two is overruled.
        In his third point of error, Brockway contends that he is entitled to a new trial because he was deprived of his right to a full and complete statement of facts. During the punishment phase of the trial, the State introduced a letter Brockway had sent to his grandmother while awaiting trial in confinement. Although the court reporter's affidavit indicates that the letter has been lost and is no longer in the court's file, a portion of it was read into the record. Brockway admitted that he had written "that if they want me to rot in prison they better not let me see any of them again because I will kill every one of them for as long as it takes me and that's a promise."
        Under the rules of appellate procedure, an appellant is entitled, upon request, to a complete statement of facts. TEX. R. APP. P. 50. If a court reporter's notes are lost or destroyed, without an appellant's fault, generally, he is entitled to a new trial. Id. at e; See Austell v State, 638 S.W.2d 888 (Tex. Crim. App. 1982).
        In the instant case the only missing portion of the record is the letter. However, it was partly read into the record. Otherwise, the statement of facts is complete. Brockway admitted the letter was in his handwriting and admitted it contained death threats. The letter was admitted in the punishment phase to illustrate that Brockway is a continuing threat to his young victims. Given these circumstances, we cannot say that Brockway was deprived of a complete statement of facts and thus deprived of his right to appeal. Point of error three is overruled.
        The judgment of the trial court is affirmed.
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00526.F
 
 
 
File Date[01-02-89]
File Name[880256]