Clifton Halliburton v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-04-00351-CR

NO. 12-05-00013-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CLIFTON HALLIBURTON, APPEALS FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Clifton Halliburton appeals his convictions for indecency with a child and sexual assault of a child. In each case, Appellant contends in one issue that the trial court erred in not holding a trial to determine his competency to stand trial. We affirm.

Background

In two separate indictments, Appellant was charged with indecency with a child (trial court cause number 007-2137-03) and sexual assault of a child (trial court cause number 007-0002-04). In each case, Appellant filed a motion for examination and hearing to determine his competency to stand trial. The trial court granted Appellant s motion and appointed an expert to examine Appellant and determine his competency to stand trial. The clerk s records do not contain a report from the expert or any orders denying hearings or trials on Appellant s competency.

In each case, Appellant pleaded guilty. He and his counsel signed an acknowledgment of admonishments, a waiver of jury trial, an agreement to stipulate testimony, and judicial confession in which Appellant swore that all allegations pleaded in both indictments were true. Appellant also waived his time to file motions for new trial and in arrest of judgment and his right to appeal. The trial court adjudged Appellant guilty of both offenses and assessed punishment at fifteen years of imprisonment for indecency with a child and twenty years of imprisonment for sexual assault of a child. The terms of imprisonment are to be served concurrently. These appeals followed.1

Competency Trial

In one issue, Appellant argues in each case that the trial court erred in failing to hold a trial to determine his competency to stand trial. Article 46B.051 of the Texas Code of Criminal Procedure states that, if a court holds a trial to determine whether the defendant is incompetent to stand trial, either party or the court may request that a jury make the determination. Tex. Code Crim. Proc. art. 46B.051(a) (Vernon Supp. 2005). We review a trial court s decision not to conduct a competency hearing for an abuse of discretion. Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App. Fort Worth 2005, pet. ref d). A trial court abuses its discretion if its decision is arbitrary or unreasonable. Id.

The appellate record does not include reporter s records of any hearings or trials to determine Appellant s competency to stand trial. No reporter s records were filed in either case of any hearings conducted before Appellant pleaded guilty or of the plea hearings. According to the Texas Rules of Appellate Procedure, the official or deputy reporter is responsible for preparing, certifying, and timely filing the reporter s record if a notice of appeal has been filed, the appellant has requested that the reporter s record be prepared, and the party responsible for paying for the preparation of the reporter s record has paid the reporter s fee, or has made satisfactory arrangements with the reporter to pay the fee, or is entitled to appeal without paying the fee. Tex. R. App. P. 35.3(b). It is, therefore, an appellant s responsibility to properly initiate the process of securing a reporter s record. See Tex. R. App. P. 35.3(b); In re Spiegel, 6 S.W.3d 643, 646 (Tex. App. Amarillo 1999, no pet.); Walker v. State, No. 12-01-00313-CR, 2002 WL 31845804, at *1 (Tex. App. Tyler Dec. 20, 2002, no pet.) (not designated for publication).

Our review of the clerk s record in each case reveals that Appellant did not request a reporter s record. Nevertheless, on December 27, 2004, Appellant s counsel wrote a letter to this court regarding the indecency with a child offense. In that letter, counsel stated that the sexual assault of a child offense was a companion case. Counsel stated that appellant will make application for payment for the record, as it is his position that he is indigent. However, neither clerk s record includes an affidavit of indigence. A letter dated April 20, 2005 from this court to the court reporter informed her that the record in the sexual assault of a child case had not been filed and allowed another month in which to file the record. Appellant s counsel received a copy of that letter. Neither clerk s record includes any document showing that Appellant took further action to obtain the reporter s record in either case.

When a reporter s record is necessary for appellate review and the appellant fails to file the reporter s record, a presumption arises that the reporter s record would support the trial court s judgment. Rittenhouse v. Sabine Valley Ctr. Found., 161 S.W.3d 157, 165 (Tex. App. Texarkana 2005, no pet.); see Walker, 2002 WL 31845804, at *1. Moreover, if an appellant does not initiate the completion of a record and his issue involves matters omitted from the record due to his failure to request or pay for the record, his actions will prevent an appellate court from adequately addressing the dispute. Kent v. State, 982 S.W.2d 639, 641 (Tex. App. Amarillo 1998, pet. ref d). In these cases, Appellant did not request a reporter s record nor did he file an affidavit of indigence. Without the reporter s record, we cannot determine if the trial court abused its discretion in failing to hold trials to determine Appellant s competency to stand trial. See id. Therefore, in failing to take the steps necessary to obtain reporter s records, Appellant has effectively waived his complaint. See id.

  Because Appellant failed to properly secure a reporter s record in these cases, we presume that the missing portions of the records contain evidence to support the trial court s failure to hold trials to determine Appellant s competency to stand trial. Accordingly, Appellant s issues are overruled.

Disposition

The judgments of the trial court are affirmed.

SAM GRIFFITH

Justice

Opinion delivered March 31, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

1 Appellate cause number 12-04-00351-CR relates to the indecency with a child charge and appellate cause number 12-05-00013-CR relates to the sexual assault of a child charge. Because Appellant raises the same issue in both appeals, we consider the cases together.