....'.' ;j*"s!r
(Unitri of Appeals
iTtftlf Etsirtri of Gkxas ai lallas
JUDGMENT
TOMMY LOUIS SCOTT, Appellant Appeal from the Criminal District Court
No. 2 of Dallas County, Texas. (Tr.Ct.No.
No. 05-91-01757-CR V. F91-33568-UI).
Opinion delivered by Justice James,
THE STATE OF TEXAS, Appellee Justices Lagarde and Whittington
participating.
Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered January 24, 1997.
S&sls>Sr:*«<',*??^S^
AFFIRM and Opinion Filed January 24, 1997
In The
GLaurt at Appeals
ITtfty BxzMcl at Gkxas ai lallas
No. 05-91-01757-CR
TOMMY LOUIS SCOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F91-33568-UI
OPINION
Before Justices Lagarde, Whittington, and James
Opinion By Justice James
Appellant Tommy Louis Scott appeals his conviction for burglary of a vehicle. On
April 17, 1991, appellant entered a guilty plea and the trial court deferred an adjudication
of guilt and placed appellant on four years' probation with a $750 fine. On November 1,
1991, the trial court granted the State's motion to proceed to an adjudication of guilt,
accepted appellant's plea of true, and sentenced appellant to ten years' confinement with
a $750 fine. In his sole point of error, appellant contends he is entitled to a reversal and
remand for a judgment of acquittal or to a new trial because the official reporter lost or
destroyed the notes and records from the April 17, 1991 hearing through no fault on his
part. Because appellant did not make a timely request to the official reporter to prepare
the statement of facts, we affirm the trial court's judgment.
According to Texas Rule of Appellate Procedure 50(e):
When the record or any portion thereof is lost or destroyed it
may be substituted in the trial court and when so substituted the
record may be prepared and transmitted to the appellate court
as in other cases. If the appellant has made a timely request
for a statement of facts, but the court reporter's notes and
records have been lost or destroyed without appellant's fault,
the appellant is entitled to a new trial unless the parties agree
on a statement of facts.
Tex. R. App. P. 50(e). For appellant to prevail under Rule 50(e), he must show he made
a timely request to the court reporter for the statement of facts and the court reporter has
lost or destroyed the notes through no fault on appellant's part. Culton v. State, 852 S.W.2d
512, 514 (Tex. Crim. App. 1993). A "timely request" under Rule 50(e) is a written request
to the official court reporter at or near the time appellant perfected his appeal. Id. At all
times, appellant has the burden to establish he has been deprived ofthe statement offacts.
See Stewart v. State, 856 S.W.2d 567, 572 (Tex. App.-Beaumont 1993, no pet.).
On November 1, 1991, the trial court granted the State's motion for an adjudication
of guilt and assessed a punishment of ten years' confinement and a$750 fine. Appellant had
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thirty days in which to perfect his appeal. See Tex. R. App. P. 41(b)(1). On November 15,
1991, appellant filed a document with the trial court entitled Defendant's Notice of Appeal,
Proof of Indigency, & Designation of Record. In this document, appellant asks the trial
judge to order the court clerk and the court reporter to prepare a statement of facts
reflecting all the evidence presented in the case. This document does not include a
certificate of service or any indication that appellant sent a copy to the official reporter.
According to Texas Rule of Appellate Procedure 53(a):
The appellant, at or before the time prescribed for perfecting
the appeal, shall make a written request to the official reporter
designating the portion of the evidence and other proceedings
to be included therein.
Tex. R. App. P. 53(a). The document appellant filed with the trial court is the only
document in the transcript reflecting any type of request to the official reporter to prepare
the statement of facts. The broad request included in the document does not constitute a
"timely request" as prescribed by Rule 53(a) because it is not a written request to the
official reporter. Culton, 852 S.W.2d at 515; Broxton v. State, 909 S.W.2d 912, 914 (Tex.
Crim. App. 1995). If appellant made a proper and timely request to the court reporter,
there is no such letter or motion in the transcript appellant filed with this Court. See
Broxton, 909 S.W.2d at 914. Because appellant failed to make a timely request to the
official reporter, we overrule his point of error.
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For the reasons set forth above, we affirm the trial court's judgment.
Lagarde, J., concurring opinion
Do Not Publish
Tex. R. App. P. 90
911757F.U05
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Opinion Filed January 24, 1997
In The
(£aurt at Appeals
Witttf iBtstrtri of Qkxas at Sallas
No. 05-91-01757-CR
TOMMY LOUIS SCOTT, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F91-33568-UI
CONCURRING OPINION
Before Justices Lagarde, Whittington, and James
Opinion By Justice Lagarde
I concur in the result only.
t^Ub^S
SUE^AGARDE
JUSTICE
Do Not Publish
Tex. R. App. P. 90
911757CF.U05