Stacy v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Upon his pleas of guilty appellee was convicted of six different offenses, three times for sexual assault of a child and three times for indecency with a child. On May 25, 1989, sentence was imposed at six years confinement for each offense, to run *861concurrently. Judgments were signed on June 1, 1989. Appellee filed motions for new trial contending the evidence had been insufficient to support the judgments under Article 1.15, Y.A.C.C.P., and on June 22, 1989, the trial court signed an order in each cause granting new trials on that basis. The State filed timely notice of appeal on July 5, 1989, and the transcript was filed, also in a timely manner, on August 16, 1989. On October 6, 1989, the State filed a partial statement of facts, along with a motion for extension of time to file the balance, giving problems with a change of court reporter as the reason the extension was needed. On December 4, 1989, the State filed a motion for leave to file a complete statement of facts. In an unpublished opinion delivered on January 3, 1990, the court of appeals denied the State’s motion for extension of time to file a completed statement of facts, reasoning that the motion had been untimely filed. For this proposition the court of appeals cited its recent opinion in State v. Daniels, 783 S.W.2d 691 (Tex.App.—San Antonio 1989).

On August 15, 1990, the court of appeals issued an opinion on the merits of the State’s appeal. The court held, in a published opinion, that even without the statement of facts it could determine that the trial court erred to grant appellee’s motions for new trial on the basis of insufficient evidence to support the judgments. State v. Stacy, 796 S.W.2d 520 (Tex.App.—San Antonio 1990). Relying upon recitations in the judgments that “the State of Texas has introduced legal and competent evidence into the record in this cause which shows that the [appellee] is guilty as charged in the indictment,” and that “the said evidence is sufficient under the law to support the plea of ‘Guilty’ by the [appellee] ...,” and invoking the presumption of the regularity of judgment recitals in the absence of an affirmative showing to the contrary, see, e.g., Vega v. State, 707 S.W.2d 557, 559 (Tex.Cr.App.1986) (Opinion on rehearing), the court of appeals held the State had met its burden to establish abuse of discretion in granting appellee’s motions for new trial.

In his petition for discretionary review appellee complains that the court of appeals erred in finding the evidence sufficient absent a statement of facts. He argues that it is the burden of the party appealing to present a record in the appellate court sufficient to show reversible error by the trial court, see Tex.R.App.Pro., Rule 50(d), and that absent a statement of facts the court of appeals could not conclude that the trial court erred to grant his motions for new trial. We granted appel-lee’s petition in order to examine the apparent anomaly in having the State benefit from its failure to obtain a complete record for appeal, and to consider appellee’s further contention that, in any event, the trial court’s order granting his motion for new trial was itself a sufficient showing to defeat any presumption of regularity in the judgment recitals.

Since we granted the petition in this cause, however, this court has rendered an opinion in State v. Daniels, 806 S.W.2d 838 (Tex.Cr.App.1991). There we held that, according to the “plain text” of Tex.R.App.Pro., Rule 54(b), the State shall have 120 days from the date an order granting a defendant’s motion for new trial to file the statement of facts for appeal. Under Rule 54(c), supra, the State will have an additional fifteen days to file a motion for extension of time. The court of appeals in the instant cause erred to hold that the State’s partial statement of facts was untimely filed, and that its motion for extension of time to file the remaining portion was similarly untimely. Both were filed on October 6, 1989, 110 days after the motions for new trial were granted on June 22, 1989. Thus, both were timely under our holding in Daniels.

Rather than decide whether the court of appeals erred to hold the evidence sufficient to support a guilty plea under Article 1.15, supra, absent a statement of facts, we remand the cause to the court of appeals to consider whether to grant the State’s timely filed motion for extension of time to file the statement of facts, and if it does grant the motion, to reconsider the State’s appeal on the basis of a complete *862record. Should the court of appeals exercise its discretion to deny the motion for extension of time, and persist in its present holding that the evidence is sufficient even in the absence of a statement of facts, appellee may reiterate his present claims in a new petition for discretionary review. Should the court of appeals grant the motion for extension of time and decide the question of sufficiency on the basis of a complete record, however, the present controversy will become moot.

Accordingly, the judgment of the court of appeals is vacated and the cause is remanded to that court for further consideration and disposition not inconsistent with this opinion.*

The dissent suggests our present disposition is inappropriate in that the State should have been required to petition this Court for redress from the court of appeals’ denial of its motion for extension of time to file the statement of facts. But "[o]rdinarily, this Court will not entertain a petition for discretionary review from an interlocutory order of the Court of Appeals since it does not finally dispose of the case in that court.” Measeles v. State, 661 S.W.2d 732, 733 (Tex.Cr.App.1983).