E T J v. State, No. 05-88-00390-CV

• Court: Court of Appeals of Texas
• Writing for the Court: ROWE; KINKEADE
• Citation: 766 S.W.2d 871
• Docket Number: No. 05-88-00390-CV
• Decision Date: 08 March 1989
• Parties: E____ T____ J____, Appellant, v. The STATE of Texas, Appellee.

Page 871

766 S.W.2d 871 E____ T____ J____, Appellant,
v.
The STATE of Texas, Appellee. No. 05-88-00390-CV. Court of Appeals of Texas,
Dallas. March 8, 1989.

Russell P. Brooks, Greenville, for appellant.

Page 872

W.D. Ballard, Asst. Dist. Atty., F. Duncan Thomas, Dist. Atty., for Hunt County, Greenville, for appellee.

Before STEWART, ROWE and OVARD, JJ.

ROWE, Justice.

Appellant, E____ T____ J____, is a juvenile alleged to have engaged in delinquent conduct. The trial court waived jurisdiction of this cause and transferred E____ T____ J____ to the district court for appropriate criminal proceedings. In his sole point of error, E____ T____ J____ complains that the evidence is insufficient to support the trial court's findings which serve as the basis for transferring him to the district court. We note that the record before us contains no statement of facts. ¹ In the absence of a statement of facts, we must presume that sufficient evidence was introduced in the trial court to support its findings, and we cannot consider appellant's complaint that the evidence is insufficient. Collins v. Williamson Printing Corp., 746 S.W.2d 489, 491 (Tex.App.--Dallas 1988, no writ); see Byrd v. Texas Dept. of Human Resources, 673 S.W.2d 640, 642 (Tex.App.--San Antonio 1984, no writ); Hyatt Corp. v. Trahan, 521 S.W.2d 149, 150 (Tex.App.--Dallas 1975, no writ). Accordingly, we overrule appellant's sole point of error.

We affirm the judgment of the trial court.

KINKEADE, Justice, dissenting.

Before the submission of this cause on its merits, E____ T____ J____, as appellant, filed a motion to compel the clerk of this Court to file late the statement of facts. The motions panel of this Court denied appellant's motion. It is to the motions panel's decision that I dissent.

Appellant is a juvenile charged with (among other charges) an attempted capital offense; this appeal is from the trial court's order waiving juvenile jurisdiction and allowing him to stand trial as an adult. The trial court conducted a hearing, pursuant to section 54.02(c) of the Texas Family Code, ¹ to determine: whether the alleged offense was committed in an aggressive and premeditated manner; appellant's sophistication and maturity; appellant's previous history; the prospects of adequate protection of the public; and the likelihood of appellant's rehabilitation. TEX.FAM.CODE ANN. § 54.02(f) (Vernon 1986). Because of appellant's indigency, the trial court appointed counsel to represent him at the hearing. Subsequently, when the trial court waived jurisdiction and allowed discretionary transfer of the case to criminal district court, thereby allowing appellant to stand trial as an adult, the same attorney undertook to represent appellant on this appeal; again the trial court entered an order appointing the same attorney as counsel on appeal, because of appellant's indigency.

Appellant timely filed one motion to extend the time to file the statement of facts from the certification hearing, which we granted. The statement of facts therefore became due on April 18, 1988. The statement of facts was not tendered to the Court, however, until May 18. There was no intervening second motion to extend the time to file the statement of facts; such a second motion should have been filed no later than May 3. Chojnacki v. First Court of Appeals, 699 S.W.2d 193, 193 (Tex.1985) (per curiam). Therefore, the clerk of the Court refused to file the statement of facts upon its tender on May 18. Appellant tendered a motion to compel the Court's clerk to file the statement of facts. The State did not oppose the motion. The majority of the motions panel, relying upon Chojnacki, denied the motion.

Page 873

Obviously, the trial court could make the determinations required by section 54.02(f) of the Texas Family Code only on the basis of evidence placed before it. See, e.g., Moore v. State, 713 S.W.2d 766, 768 (Tex.App.--Houston [14th Dist.] 1986, no writ). Without a statement of facts, however, we are effectively precluded from reviewing that evidence. See Collins v. Williamson Printing Corp., 746 S.W.2d 489, 491-92 (Tex.App.--Dallas 1988, no writ). It necessarily follows that the motions panel's order denying appellant leave to file the statement of facts will deprive appellant of effective assistance of counsel on this appeal. See TEX.R.APP.P. 83.

In criminal cases, the Texas Rules of Appellate Procedure address this precise problem. Rule 53(m) states:

When No Statement of Facts Filed in Appeals of Criminal Cases. ... If no statement of facts has been filed, the appellate court may order the trial court to hold a hearing to determine whether the appellant...