Perez v. State

• Decision Date: 24 July 2008
• Docket Number: No. 14-07-00030-CR.,14-07-00030-CR.
• Citation: 261 S.W.3d 760
• Parties: Bradley Abiud PEREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

261 S.W.3d 760

Bradley Abiud PEREZ, Appellant, v. The STATE of Texas, Appellee.

No. 14-07-00030-CR.

Court of Appeals of Texas, Houston (14th Dist.).

July 24, 2008.

Rehearing Overruled August 7, 2008.

Bradley Abiud Perez, Humble, TX, pro se.

Kristen Moore, Richmond, TX, for The State.

Panel consists of Chief Justice HEDGES and Justices FOWLER and BOYCE.

OPINION

WANDA McKEE FOWLER, Justice.

Appellant, Bradley Abiud Perez, was indicted on the offense of injury to a child. After a bench trial, the trial court found him guilty and assessed punishment at ten years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine, but probated the sentence for ten years. Appellant thereafter filed a motion to proceed in forma pauperis, and requested that the trial court provide him with a free reporter's record on appeal. The trial court denied his motion, and appellant failed to pay or otherwise make arrangements to pay for a reporter's record to be filed with this Court. Thus, this appeal presents itself to us with only a clerk's record.¹ None of the proceedings at the bench trial are before us. In seven issues, appellant challenges various aspects of his conviction. We affirm.

Factual and Procedural Background

After a bench trial, appellant was convicted of the offense of injury to a child. He was sentenced to ten years' confinement in the Texas Department of Criminal Justice, Institutional Division, probated, and a $10,000 fine. Appellant timely filed his notice of appeal.

Thereafter, appellant filed a "Motion to Continue to Proceed In Forma Pauperis," in which he requested that the trial court provide him with a free reporter's record on appeal. After conducting two evidentiary hearings to determine whether appellant was indigent, the trial court denied appellant's motion, and issued findings of fact and conclusions of law. Among them, the trial court found that (1) appellant "failed to exercise reasonable efforts to convert any of his own assets to cash"; (2) appellant "failed to make any reasonable efforts to acquire the funds necessary to purchase the reporter's record"; (3) appellant's testimony concerning his claims of indigency were "unsupported by the evidence and contradictory, at best"; and (4) appellant "failed to bring forth satisfactory evidence that he is indigent," and his testimony only established that it would be an "inconvenience to him and to his wife were he to be required to pay for the Reporter's Record." The trial court concluded, among other things, that "[a]ppellant is not indigent and therefore has no right to a free Reporter's Record." Appellant then appealed the trial court's denial of his motion.

On August 2, 2007, by written order we denied appellant's motion for a free reporter's record. We further directed appellant to pay for preparation of the reporter's record from trial, and notified appellant that the reporter's record was due by September 4, 2007. Appellant failed to pay or arrange to pay for the reporter's record. On September 12, 2007, the clerk of this Court notified appellant that no reporter's record had yet been filed and that he had fifteen days to file a reporter's record. We also requested appellant to advise the Court if he had not made arrangements to pay for the reporter's record. Again, appellant failed to pay or make arrangements to pay for the reporter's record, or to advise us of his failure to do so.

Finally, on October 3, 2007, the clerk of this Court notified appellant of the court reporter's statement that appellant had not yet arranged to pay for the reporter's record. The clerk further notified appellant that the Court would consider and decide those issues that do not require a reporter's record unless appellant — within fifteen days of notice — paid or made arrangements to pay for the reporter's record, and provided the Court with proof of payment. Appellant filed no reply. As of the date of this opinion, no reporter's record of appellant's trial on the merits has been filed with this Court.

Issues on Appeal

In seven issues,² appellant challenges his conviction for injury to a child. In his second issue, appellant complains that he was denied due process of law because the trial judge was not impartial. In his third issue, appellant asserts that the amount of pretrial bail set by the trial court was used as an instrument of oppression, and that it interfered with his ability to conduct his defense at trial. In his fourth issue, appellant argues that he was denied his Sixth Amendment right to the effective assistance of counsel because the trial court (1) appointed attorneys to represent him that, in his words, "refus[ed] to provide effective assistance of counsel," and were otherwise unfamiliar with the case; (2) refused to appoint him counsel of his choice; and (3) forced him to proceed without an attorney who was willing to defend him. In his fifth issue, appellant contends that section 22.04 of the Texas Penal Code is unconstitutionally vague, and that the indictment is void because it fails to give him adequate notice of the conduct that is forbidden and that which is permitted. In his sixth issue, appellant asserts that his parental rights were already terminated in a prior action brought by the State of Texas, and argues that his criminal trial therefore constitutes a double jeopardy violation. In his eighth issue, appellant argues that the trial court erred in denying his motion for new trial based on newly discovered evidence that the grand jury that returned his indictment was not lawfully impaneled and did not operate independently. In his seventh, ninth, tenth, eleventh, and twelfth issues, appellant complains of the trial court's admission of several pieces of evidence.

Analysis of Appellant's Issues

I. We will consider those issues that do not require a reporter's record.

An appellant has the burden to properly initiate the completion of a record sufficient to illustrate reversible error. See TEX.R.APP. P. 35.3; see also Cheek v. State, 65 S.W.3d 728, 730 (Tex.App.-Waco 2001, no pet.); Kent v. State, 982 S.W.2d 639, 641 (Tex.App.-Amarillo 1998, pet. ref'd, untimely filed). If the appellant fails to do so, and an issue on appeal involves matters omitted from the record due to the appellant's failure to request or pay for the record, then the appellant's actions will prevent us from adequately addressing the dispute. Kent, 982 S.W.2d at 641. This effectively waives any complaint on these issues. Id. We may, however, consider and decide those issues that do not require a reporter's record for a decision. See TEX.R.APP. P. 37.3(c).

A. Appellant has waived his complaint on the issue of whether the trial judge was not impartial.

In his second issue, appellant contends that he was denied due process of law because the trial judge was not impartial.³ He suggests that, because the trial judge denied his pretrial motions—all of which he alleges were unopposed by the State—the trial judge failed "to maintain an attitude of impartiality throughout the proceedings." While we agree with appellant that he has a due process right to an impartial tribunal, see U.S. CONST. Amend. V, VI; TEX. CONST. art. I, §§ 10, 19; Brumit v. State, 206 S.W.3d 639, 645 (Tex.Crim.App.2006), we conclude that appellant has waived his complaint on this issue.

The clerk's record reveals that appellant filed over sixty-five pretrial motions and other written requests and objections with the trial court. However, in his brief, appellant fails to specify the pretrial motions to which he refers. Although the clerk's record contains copies of several of appellant's pretrial motions with the trial judge's handwritten rulings, we note that several of appellant's motions were either granted by the trial judge or withdrawn by appellant. And, with respect to those pretrial motions not bearing the trial judge's handwritten ruling, from the state of the record we cannot determine which of these other motions were denied, much less which of these other motions were even considered by the trial judge.

Furthermore, even assuming that the trial judge considered and denied appellant's pretrial motions, and further assuming that these motions were unopposed by the State, appellant has failed to cite any authority for the proposition that a defendant's due process rights are violated when the trial judge denies the defendant's unopposed pretrial motions. Conclusory arguments that cite no authority present nothing for our review. See Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App. 1992); Atkins v. State, 919 S.W.2d 770, 774-75 (Tex.App.-Houston [14th Dist.] 1996, no pet.).

Thus, appellant, having failed to support his argument on this issue with either references to the appellate record or appropriate citations to legal authority, has waived his complaint on this issue. See TEX.R.APP. P. 38.1(h); see also Vuong, 830 S.W.2d at 940; Atkins, 919 S.W.2d at 774-75. We overrule appellant's second issue.

B. Appellant's complaint regarding the excessiveness of his pretrial bail is moot, and appellant has waived his complaint on the issue of whether the amount of pretrial bail interfered with his ability to conduct his defense at trial.

In his third issue, appellant contends that the amount of pretrial bail set by the trial court was used as an instrument of oppression, and that it interfered with his ability to conduct his defense at trial. Appellant asserts that his pretrial bail was set at $75,000, and argues that, because he was released on a personal recognizance bond after his conviction, pretrial bail "was impermissibly used as a means to punish him before trial" and "to interfere with, and impede, his right to conduct his defense in propia persona." We examine each of these arguments separately.

With respect to the appellant's complaint regarding the excessiveness of pretrial bail, we conclude that this issue is moot. As noted...