Terron Penevrick Mitchell v. State ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00015-CR
______________________________
TERRON PENEVRICK MITCHELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 145th Judicial District Court
Nacogdoches County, Texas
Trial Court No. F1018049
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Following guilty verdicts by a Nacogdoches County1 jury, Terron Penevrick Mitchell was
sentenced to thirty-five years’ imprisonment for tampering with physical evidence and to five
years’ imprisonment following conviction of possession of less than one gram of cocaine. On
appeal, Mitchell claims the trial court erred in overruling his motion to suppress the evidence. We
affirm the trial court’s ruling, because the nonindigent Mitchell has not filed a reporter’s record of
the suppression hearing, a hearing central to Mitchell’s appeal.
“The appellate record consists of the clerk’s record and, if necessary to the appeal, the
reporter’s record.” TEX. R. APP. P. 34.1. It is the appealing party’s burden to ensure that the
record on appeal is sufficient to resolve the issue he or she presents. Amador v. State, 221 S.W.3d
666, 675 (Tex. Crim. App. 2007); Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim. App.
2003).
In the appellate brief written by his retained counsel, Mitchell claimed that he was indigent,
although he also had retained counsel during the trial of this case. We abated this appeal so that
the trial court could conduct an indigency determination. At the hearing, held June 1, 2011, the
trial court took testimony from Mitchell, to the effect that he could afford to continue with hired
counsel, and found that Mitchell was not indigent. That determination has not been challenged.
1
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
Further, no reporter’s record of the suppression hearing has yet been filed. Without the
reporter’s record from the hearing, “appellant cannot even reach first base.” Guajardo, 109
S.W.3d at 462. Without that record, we may not review the merits of Mitchell’s claim that the
trial court failed to suppress the evidence.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 14, 2011
Date Decided: November 22, 2011
Do Not Publish
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