Ellis v. State
| Decision Date | 08 April 1982 |
| Docket Number | No. C14-81-633-CR,C14-81-633-CR |
| Citation | 633 S.W.2d 340 |
| Parties | Cynthia F. ELLIS, Appellant, v. STATE of Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Allen D. Fobbs, Jr., Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Houston, for appellee.
Before MILLER, MORSE and JAMES, JJ.
This is an appeal from a conviction for possession of cocaine, a controlled substance. Upon trial to a jury, appellant was found guilty and sentenced to confinement in the Texas Department of Corrections for two (2) years. We affirm the judgment of the trial court.
Appellant has come before this court with a single point of error. Appellant contends that the trial court erred in "depriving the appellant of a statement of facts in the record on appeal." The sufficiency of the evidence to support her conviction is not challenged.
The record before us shows that on September 25, 1980, the jury found appellant guilty of possession and appellant was sentenced on November 3, 1980. At that time, appellant stated to the court that she would appeal and, not being a pauper, would purchase the appellate record. On February 2, 1981, upon appellant's motion, the trial court extended appellant's time to file the statement of facts until April 3, 1981. According to an affidavit filed by the court reporter, she was not requested to prepare the statement of facts until February 26, 1981. On July 8, 1981, more than three months after the date of appellant's original extension, appellant filed a second motion requesting an extension of time to file the statement of facts which was denied by the trial court.
Appellant has the burden of establishing that she has been deprived of her statement of facts. Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223 (1953). The test to be applied was set out by the Court of Criminal Appeals in Timmons v. State, 586 S.W.2d 509 (Tex.Cr.App.1979), in which the court stated:
To be entitled to a reversal of judgment of conviction where the statement of facts is not filed, an appellant must show due diligence in requesting it and that failure to file or to have the statement of facts timely filed is not in any way due to negligence, laches, or other fault on the part of the appellant and his counsel. Randolph v. State, 155 Tex.Cr.R. 432, 234 S.W.2d 235 (1950); Little v. State, 131 Tex.Cr.R. 164, 97 S.W.2d 479 (1933); Roberts v. State, 62 Tex.Cr.R. 7, 136 S.W. 483 (1911). Indeed, the circumstances in such cases should be viewed from the appellant's standpoint, Young v. State, 172 S.W.2d 500 (Tex.Cr.App.1943), and any reasonable doubt is resolved in favor of the appellant. Lamkin v. State, 138 Tex.Cr.R. 311, 136 S.W.2d 225, 228 (1940).
Even viewing the evidence from the appellant's standpoint and resolving any reasonable doubt in her favor, we cannot find that appellant and...
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