Brenda Karyl Lee-Wilson v. Dorris Carlton Wilson, Jr. ( 2002 )

WILSON V. WILSON NO. 07-02-0239-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

DECEMBER 3, 2002

______________________________



BRENDA KAY WILSON, APPELLANT

V.

DORRIS CARLTON WILSON, JR., APPELLEE



_________________________________

FROM THE 316TH DISTRICT COURT OF HUTCHINSON COUNTY;

NO. 34,736; HONORABLE STEVEN R. EMMERT, JUDGE

_______________________________

Before REAVIS and JOHNSON, JJ. and BOYD, S.J. ⁽¹⁾  

OPINION ON MOTION TO DISMISS

The trial court rendered judgment in this cause in favor of appellee Dorris Carlton Wilson, Jr. on February 25, 2002. Appellant timely filed her notice of appeal from that Judgment and filed an indigence affidavit in connection with the appeal. A contest to the indigence affidavit filed by the court reporter and appellee Dorris Carlton Wilson, Jr. was sustained by the trial court on June 14, 2002. Although appellant has filed an indigency motion in this court, we are bound by the trial court's fact finding.

Although four motions for extension of time for filing the clerk's and reporter's records have been granted by this court, with the last such extension being granted to October 8, 2002, neither the clerk's nor the reporter's records have been filed because the necessary deposits for the preparation of those records have not been made.

Both the trial court clerk and the court reporter are responsible for preparing, certifying, and timely filing their records. Tex. R. App. P. 35.3. However, neither of them is responsible for preparing and filing the record unless a timely notice of appeal has been filed and satisfactory arrangements have been made to pay the fee for the preparation of the record. Tex. R. App. P. 35.3(a)and (b); In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex.App.-Amarillo 1999, no pet.).

Appellant's failure to perform the steps necessary to obtaining a record for our perusal after repeated extensions of time is indicative of a failure to adequately prosecute this appeal. This is particularly true in view of the trial court's ruling refusing to find she is indigent.

Accordingly, this appeal must be and, it is hereby dismissed. Tex. R. App. P. 42.3(b), 42.3(c).

John T. Boyd

Senior Justice

Do not publish.

1.

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

o jurisdiction over the appeal simply because appellant filed a general notice of appeal.

Issue One

Again, through her only issue, appellant contends that the trial court erred when it failed to consider the full range of punishment. We overrule the contention.

To preserve a complaint for review, the record must show that the complainant urged it to the trial court by a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint unless the grounds are apparent from the record. Tex. R. App. P. 33.1(a); Vidaurri, 49 S.W.3d at 885-86. The record illustrates that appellant never contended below (by objection, motion or otherwise) that the trial court failed to consider the full range of punishment. Thus, the issue was not preserved for review.

Nor did appellant provide us with citation to any legal authority supporting her short argument that the failure to consider the full range of punishment constitutes reversible error. This too results in the waiver of the matter. See Tex. R. App. P. 38.1(h) (requiring that appellants provide the reviewing court with citation to legal authority); Pachecano v. State, 881 S.W.2d 537, 545 (Tex. App.--Fort Worth 1994, no pet.) (holding that because the appellant did not provide citation to legal authority, he waived the complaint).

Accordingly, the judgment of the trial court is affirmed.

Brian Quinn

Justice

Publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. gov't code ann. §75.002(a)(1) (Vernon Supp. 2002).

2.

In Kirtley, the appellant was asserting that he was denied effective assistance of counsel at the punishment hearing. Appellant had pled guilty and received deferred adjudication and community supervision. The trial court subsequently adjudicated him guilty, and Kirtley appealed. In response to the contention that appellant's general notice of appeal did not vest the reviewing court with jurisdiction, the Court of Criminal Appeals noted that Rule 25.2(b)(3) does not apply when asserting issues unrelated to the conviction. Kirtley, 56 S.W.3d at 51-52. Then it stated that a claim of ineffective assistance of counsel "at the punishment hearing after adjudication of guilt is 'unrelated to' a claim regarding the propriety of the conviction." Id. at 51 (emphasis in original). In italicizing the phrase "at the punishment hearing," the Court of Criminal Appeals evinces that error arising during that phase of the trial is unrelated to the conviction.