Michael W. Gilbert v. The State of Texas--Appeal from County Court at Law No 2 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-95-068-CR

MICHAEL W. GILBERT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 942144 CR2

O P I N I O N

A Waco Municipal Court judge found Michael W. Gilbert guilty of allowing a dog to run at large in the city, failing to have the dog vaccinated against rabies, and failing to appear to answer the charges. See Waco, Tex., Code 1-6, 7-20, 7-41 (1967) (current versions at Waco, Tex., Code 1-15(b), 5-61, 5-92 (1994)). The court assessed punishment of $225 in fines. Gilbert appealed from this judgment to a McLennan County court at law. See Tex. Code Crim. Proc. Ann. arts. 4.08 (Vernon 1977), 44.17 (Vernon Supp. 1996). After a bench trial in the county court at law, Gilbert was again found guilty of the animal-running-at-large and failure-to-vaccinate offenses on January 24, 1995. He was punished by a $75 fine and ordered to pay $220 in court costs. Although Gilbert was represented by counsel in the county court at law proceeding, he proceeds pro se on appeal.

Because the fine imposed by the county court at law was less than $100, we do not have jurisdiction "unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based." Id. art. 4.03 (Vernon Supp. 1996). The city ordinance states:

Sec. 7-41. Running at large.

(a) It shall be unlawful for any person who owns, keeps, harbors or otherwise has control over any animal, livestock, fowl or wildlife within the city to allow or permit such animal, livestock, fowl or wildlife to run or be at large within the city.

. . .

(c) An animal shall be considered to be at large if it is not under the control of its owner by either a leash, chain, cord, or other suitable material attached to a collar or harness or not on the property of the owner. . . .

. . .

(e) Proof that an animal was found at large in violation of this section, together with proof that the defendant was the owner of such animal at the time, shall constitute prima facie evidence that the defendant allowed or permitted the animal to be at large.

Waco, Tex., Code 7-41 (1967) (current version at Waco, Tex., Code 5-92 (1994)).

Gilbert does not argue that the ordinance is facially unconstitutional. Instead, he argues that it is unconstitutional as applied to him under the circumstances.

The only record we have from the hearing is the court's pronouncement:

THE COURT: Mr. Gilbert, the Court having heard the testimony in this case is going to find that you are guilty as charged. The statute does not require that you own the dog. The statute simply requires that you own or keep or harbor or otherwise have control of the dog. And even from your testimony, you apparently had joint control of the dog, and the statute requires that the State prove that you had control of the dog and failed to exercise that control, and I think they've proved that case.

Gilbert objects to the court's finding of "joint control." He argues that he was not in primary control of the dog, that the dog belonged to his sister, and that he committed no wilful or negligent act in failing to control the animal. In essence, Gilbert argues that the evidence is insufficient to sustain his conviction. We do not have a record from which to determine a sufficiency question; // nor do we have jurisdiction to review a sufficiency question in this case. Tex. Code Crim. Proc. Ann. art. 4.03. In light of our restricted jurisdiction, we also do not reach Gilbert's other arguments which do not attack the constitutionality of the "dog-at-large" statute. // Id.

When we reach Gilbert's complaint that the ordinance is unconstitutional as applied to him, we find that we must overrule his complaint because we do not have a record from which we can determine its merits. The burden of providing us with a record requiring reversal lies, of course, with an appellant. Tex. R. App. P. 50(d). Because the complete record is absent and we cannot determine how the ordinance was applied in this case, we overrule Gilbert's complaint about the constitutionality of the ordinance and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 17, 1996

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