Christopher Alan Garcia v. The State of Texas--Appeal from 262nd District Court of Harris County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00008-CR
______________________________
CHRISTOPHER ALAN GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd Judicial District Court
Harris County, Texas
Trial Court No. 909972
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION

Christopher Alan Garcia pled guilty to indecency with a child December 4, 2002. The trial court sentenced Garcia to four years' imprisonment. There was no plea agreement. Garcia filed a timely motion for new trial January 3, 2003. See Tex. R. App. P. 21.4 (motion for new trial to be filed within thirty days of sentencing). Garcia's appeal was later transferred to this Court by the Texas Supreme Court.

Garcia is represented by retained counsel and is not appealing as an indigent; he is, therefore, responsible for paying for the preparation of the appellate record. The clerk's and reporter's records in Garcia's appeal were to be filed by April 3, 2003. See Tex. R. App. P. 35.2(b) (appellate record due within 120 days of sentencing if motion for new trial filed). The clerk's record was timely filed April 4, 2003. See Tex. R. App. P. 9.2(b) (document timely filed if postmarked by due date, properly addressed and stamped, and received within ten days of mailing). By June, however, no reporter's record had been filed.

In an order dated June 2, 2003, we warned Garcia that, if the reporter's record was not filed by June 17, 2003, or if we had not received information reflecting an adequate effort to obtain the reporter's record, or if Garcia's appellate brief based solely on the clerk's record was not received by June 17, 2003, then we would consider Garcia's appeal based on the clerk's record alone. See Tex. R. App. P. 37.3(c).

It is now July, and seven months have passed since Garcia filed his notice of appeal. We have received no communication from Garcia's retained appellate counsel since our June order. Garcia's appellate brief has not been filed. And we have no reporter's record. Garcia's retained counsel has failed to comply with our June 2, 2003, order directing counsel to file the reporter's record, to show adequate efforts to secure the reporter's record, or to file his brief based on the clerk's record alone. Therefore, under the authority of Rule 37.3(c), we will consider the issues raised by the clerk's record alone. See Tex. R. App. P. 37.3(c) (court may consider and decide issues not requiring reporter's record).

Garcia pled guilty to intentionally and knowingly engaging in sexual contact with a child under the age of seventeen, who was not Garcia's wife, by touching the victim's genitals. Indecency with a child, as alleged in this case, is a second degree felony. See Tex. Pen. Code Ann. 21.11 (Vernon 2003). The record before us indicates Garcia's guilty plea was made voluntarily with full knowledge of the consequences of his plea, including sex offender registration. Garcia signed a written statement that he was mentally competent at the time of his plea and understood the nature of the charge against him. In short, there is nothing in the record that causes us to question the validity of Garcia's plea.

Similarly, there is nothing in the record that causes us to question the propriety of the sentence assessed. Although the trial court denied Garcia's motion for community supervision, Garcia's four-year sentence was within the range provided for second degree felonies. See Tex. Pen. Code Ann. 12.33 (Vernon 2003) (punishment range for second degree felony is two to twenty years). When a trial court assesses punishment within the statutory range, we shall presume the sentence was proper absent evidence to the contrary. See Alberto v. State, 100 S.W.3d 528, 529-30 (Tex. App.-Texarkana 2003, no pet.) (punishment not cruel or excessive if within statutory range). In this case, the record demonstrates no evidence to the contrary.

For the reasons stated, we find the record raises no issues requiring reversal. We affirm the trial court's judgment.

Donald R. Ross

Justice

 

Date Submitted: July 16, 2003

Date Decided: July 17, 2003

 

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