Rios v. State

• Decision Date: 31 August 1989
• Docket Number: No. 13-88-412-CR,13-88-412-CR
• Parties: Eduardo Enriquez RIOS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 509

791 S.W.2d 509

Eduardo Enriquez RIOS, Appellant, v. The STATE of Texas, Appellee.

No. 13-88-412-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1989.

Rehearing Granted With Opinion Dec. 21, 1989.

Opinion on Rehearing April 12, 1990.

J.C. Castillo, Houston, for appellant.

John D. Holmes, Jr., Dist. Atty., Houston, for appellee.

Before NYE, C.J., and KENNEDY and DORSEY, JJ.

OPINION

NYE, Chief Justice.

Appellant was indicted for the offense of delivery of a controlled substance, namely, at least four hundred grams of cocaine. Appellant entered a plea of guilty. The trial court assessed the recommended punishment of thirty-five years imprisonment and a fine of $100,000. As the sole point of error, appellant contends the court erred by not granting his motion to dismiss because he was entrapped as a matter of law.

Prior to entering his guilty plea, appellant filed a "Motion to Dismiss on Account of Entrapment." On July 15, 1988, the motion was dismissed by the trial court. Although the parties' briefs refer to a statement of facts transcribing a hearing on the motion that took place on July 15, 1988, that statement of facts is not in the record.

Appellant requested a complete statement of facts, including transcriptions of all pre-trial hearings in his designation of the appellate record. On October 7, 1988, this court sent a letter to appellant's attorney stating that "the statement of facts (2 volumes) in the above cause was this day marked 'received' in this Court," and it instructed the attorney to file a motion for leave to file the statement of facts. After the motion was filed and granted, we notified appellant that the statement of facts had been ordered filed.

Neither of the two volumes contains a transcription of the Motion to Dismiss hearing. That is the basis of appellant's complaint. Appellant made no objections to the appellate record. It is a rule of law that makes it appellant's duty to ensure that the record contains all materials necessary for appellate review. Tex.R.App.P. 50; see also McGlynn v. State, 704 S.W.2d 18, 20 (Tex.Crim.App.1986); Soliz v. State, 693 S.W.2d 518, 519 (Tex.App.--Corpus Christi 1985, no pet.). Absent a sufficient record to determine if the trial court erred, we overrule appellant's point of error and AFFIRM the judgment of the trial court.

DORSEY, J., concurs.

DORSEY, Justice, concurring.

As the majority points out, the transcription of the hearing on appellant's motion to dismiss is not contained in the record before us. Neither party currently has notice of this fact.

It is clear, however, that the missing volume was prepared by the court reporter; both parties make reference to page citations of the transcription in their appellate briefs. For reasons unknown to us, the volume simply was not filed with this Court.

I submit that the problem may be resolved in either of two ways. First, and most preferably, notice should be given to the parties that a complete statement of facts has not been received and that they are entitled to request supplementation of the record before an opinion is rendered by this Court. In the alternative, we should render a decision as per the majority and subsequently notify the parties that they are entitled to request supplementation of the record. See Pike v. State, 772 S.W.2d 130 (Tex.Crim.App.1989). I concur with the majority opinion on the condition that appellant be allowed to supplement the record with the missing volume of the statement of facts.

OPINION ON MOTION FOR REHEARING AND TO SUPPLEMENT THE RECORD

DORSEY, Justice.

On original submission, we overruled appellant's sole point of error alleging entrapment because appellant failed to file a complete statement of facts. In affirming the conviction, we noted by rule and by case law that it was appellant's burden to ensure an adequate record for review was before this Court. Appellant's counsel has filed a motion for rehearing in which he requests supplementation of the record with the pertinent volume of the statement of facts so that we may consider the merits of the appeal. We grant the motion.

Appellant's counsel filed two volumes of the statement of facts on October 7, 1988. One volume covered discovery and other motions. A second volume covered the entry of appellant's guilty plea. Appellant's brief was filed on December 27, 1988. The State's brief was filed on January 25, 1989. Both parties referred to pages in the apparently prepared but unfiled volume of the statement of facts covering the entrapment hearing.

The case was submitted on April 6, 1989. It was not until after submission that we learned both parties were arguing matters not included in the appellate record. Apparently appellant's counsel was unaware that he had not filed the pertinent volume of the statement of facts until he received our opinion affirming the conviction. An opinion concurring in the affirmance recommended that a motion to supplement with the missing volume of the record would be proper.

Following affirmance of the conviction, appellant's counsel forwarded to this Court a third volume of the statement of facts that contains a transcription of the entrapment hearing. In his motion to supplement, counsel offers no explanation for his failure to timely file the omitted volume of the statement of facts. However, it is apparent from his transmittal letter that counsel failed to realize that a complete statement of facts was not filed, or that it is counsel's responsibility to ensure that such documents are timely filed on appellant's behalf.

In the past, this Court has addressed counsel's duty to file an adequate record, and we have at times refused to consider a late record. See e.g., Guerra v. State, 766 S.W.2d 830 (Tex.App.--Corpus Christi 1989, no pet.); De La Garza v. State, 763 S.W.2d 62 (Tex.App.--Corpus Christi 1988, no pet). Tex.R.App.P. 83 provides that this Court may permit the late filing of the statement of facts on a showing that appellant may be deprived of effective assistance of counsel. If we were not to allow the filing of the entrapment transcription in this case, appellant would be deprived of a meaningful appeal solely because of counsel's failure to perform the simple act of forwarding the correct volume of the statement of facts to this Court. The lawyer should be sanctioned--not the client.

Appellant has a right to a meaningful appeal. Evitts v. Lucy, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Appellant personally has done nothing to obstruct the appeal, and the State has not opposed appellant's motion to supplement. Under these circumstances, we find it would be improper to penalize appellant for his counsel's error. For these reasons, we exercise our discretion under Rule 83 to allow the late filing of the entrapment volume at this time, and we will consider the appeal on its merits. Appellant's motion for rehearing and request to supplement is granted.

NYE, C.J., dissents.

NYE, Chief Justice, dissenting.

I respectfully dissent. Appellant's counsel has filed a motion for rehearing belatedly in which he now requests permission to supplement the record with a statement of facts not filed prior to original submission of this cause. For the reasons stated below, I would deny this last motion.

On October 7, 1988, this Court sent a letter to counsel stating that "the statement of facts (2 volumes) in the above cause was this day marked 'received' in this Court." The letter instructed counsel to file a motion for leave to file the statement of facts. After the motion was filed and granted, we notified counsel that the statement of facts had been ordered filed. Counsel made no objection to the appellate record, and this case was submitted on April 6, 1989.

After our opinion was handed down affirming appellant's conviction, he now attempts, in a motion for rehearing, to rely on materials that are not before this Court, contending that a complete statement of facts would establish his entrapment defense. There is, however, no evidence that the statement of facts that appellant filed before submission of this case was improperly prepared or in violation of the rules or that counsel in any way erred in his preparation of the submission of the record. At no time prior to the delivery of this opinion did counsel seek to supplement the record in compliance with the Texas Rules of Appellate Procedure.

Appellant's request also abuses the function of a motion for rehearing which is to present to the appellate court the alleged errors of law which have been committed by the court together with such argument, authorities, and statements of the record which may support the motion. Dewey v. American National Bank, 382 S.W.2d 524, 528 (Tex.Civ.App.--Amarillo 1964, writ ref'd n.r.e.), cert. denied, 382 U.S. 821, 86 S.Ct. 49, 15 L.Ed.2d 67 (1965). I am cognizant that Tex.R.App.P. 55(b) and (c) grant this Court wide discretion to supplement the transcript or statement of facts in order to include omitted matter. Such discretion, however, should be used prior to submission of the case and should not be exercised, in the absence of some unusual circumstance, to permit new material to be filed after the appellate court has written its opinion and rendered its judgment. K & S Interests, Inc. v. Texas American Bank/Dallas, 749 S.W.2d 887, 892 (Tex.App.--Dallas 1988, writ denied). Such action is contrary to the spirit and purpose of Tex.R.App.P. 54(a) (setting forth the appellate timetable), 50(d) (placing the burden on the appellant to see that a sufficient record is presented to show error requiring reversal), and it would interfere with the orderly administration of justice. See Archer v. Storm Nursery, Inc., 512 S.W.2d 82, 85 (Tex.Civ.App.--San Antonio 1974, no writ). It is somewhat akin to filing a motion for new trial after judgment without attempting to establish any basis for the filing of the new evidence.

This Court has already...