Ex Parte David Sidney McKeand

Opinion issued August 5, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00126-CR
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EX PARTE DAVID SIDNEY MCKEAND, Appellant
On Appeal from the County Criminal Court at Law No. 10
Harris County, Texas
Trial Court Case No. 1932729
OPINION
Appellant, David Sidney McKeand, appeals the denial of his application for
writ of habeas corpus. According to his application for writ of habeas corpus,
appellant was charged with driving while intoxicated and felony evading arrest.1
Appellant, an attorney who represented himself in the underlying proceedings,
1
See TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2011) (driving while intoxicated);
id. § 38.04 (Vernon 2011) (evading arrest).
accepted a plea bargain of the maximum fine of $2,000 and one year probation for
the DWI offense, and the felony charge of evading arrest was dismissed.
Appellant subsequently petitioned for a writ of habeas corpus, asserting that, even
though his sentence was discharged, he continues to suffer collateral consequences
arising from the conviction, that his guilty plea was involuntary, and that he lacked
the experience to represent himself effectively in the underlying proceeding. The
trial court denied appellant’s application for a writ of habeas corpus on January 9,
2014, and he then filed his notice of appeal.
The trial court clerk filed the clerk’s record on February 14, 2014. The
reporter’s record in this case was due February 19, 2014. See TEX. R. APP. P.
4.1(a), 31.1. However, the court reporter notified this Court that appellant had
neither requested nor paid for the reporter’s record. This Court’s Clerk notified
appellant that the Court might consider his appeal without a reporter’s record
unless the appellant: (1) caused the record to be filed in this Court by paying for
the record; (2) filed proof that he has made arrangements to pay the reporter’s fee
to prepare the reporter’s record; or (3) filed proof that he is entitled to proceed
without payment of costs by May 9, 2014. See TEX. R. APP. P. 31.1 (requiring
reporter to prepare and certify record if requested by appellant); see also TEX. R.
APP. P. 34.6(b)(1) (requiring appellant to request in writing that reporter prepare
record), 35.3(b) (imposing duty on court reporter to prepare, certify, and file
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reporter’s record if appellant requests and pays for record), 37.3(c) (authorizing
appellate court to consider case without reporter’s record if appellant fails to
request or pay for record). Appellant has not responded to this request, and this
Court has not received the reporter’s record for the hearing on appellant’s
application.
Texas Rule of Appellate Procedure 37.3 allows courts to review a case
without the reporter’s record. It provides that when “the appellant failed to request
a reporter’s record” or when “appellant [has] failed to pay or make arrangements to
pay the reporter’s fee to prepare the reporter’s record; and . . . the appellant is not
entitled to proceed without payment of costs,” the appellate court “may—after first
giving the appellant notice and a reasonable opportunity to cure—consider and
decide those issues or points that do not require a reporter’s record for a decision.”
TEX. R. APP. P. 37.3(c). In the absence of a reporter’s record, an appellate court
considering a habeas corpus application will presume that there was evidence to
support the trial court’s judgment. In re Mott, 137 S.W.3d 870, 875 (Tex. App.—
Houston [1st Dist.] 2004, orig. proceeding). However, in a proceeding to review a
denial of an application for writ of habeas corpus, the applicant still bears the
burden of proving that he is entitled to relief by a preponderance of the evidence.
Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).
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In reviewing the trial court's order denying habeas corpus relief, the
appellate court affords “almost total deference to the judge’s determination of the
historical facts that are supported by the record, especially when the fact findings
are based on an evaluation of credibility and demeanor.” Ex parte Wilson, 171
S.W.3d 925, 928 (Tex. App.—Dallas 2005, no pet.); see also Phuong Anh Thi Le
v. State, 300 S.W.3d 324, 327 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(holding that, in reviewing trial court’s ruling on habeas corpus petition, reviewing
court must defer to all of trial court’s implied factual findings supported by
record). The appellate court “will sustain the lower court’s ruling if it is
reasonably supported by the record and is correct on any theory of law applicable
to the case.” State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
Thus, in a case like this one, where all of the evidence was presented at the
hearing on the application for a writ of habeas corpus, unless a complete record is
filed, nothing is presented for review. See Ex parte Henderson, 565 S.W.2d 50,
51–52 (Tex. Crim. App. 1978) (holding that trial court’s judgment in habeas
corpus proceeding will be affirmed if appellant fails to request or pay, if appellant
is able to do so, for reporter’s record); Ex parte Sims, 565 S.W.2d 45, 49 (Tex.
Crim. App. 1978) (op. on reh’g) (“We hold . . . that in a habeas corpus proceeding
the judgment will be affirmed absent a statement of facts or bills of exception
where nothing has been presented for review.”); see also TEX. R. APP. P. 37.3(c)
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(providing that, after giving notice and opportunity to cure, this Court may only
consider issues that do not require reporter’s record); Blacklock v. State, No. 14-
01-00808-CR, 2001 WL 1249680, at *1 (Tex. App.—Houston [14th Dist.] Oct. 18,
2001, no pet.) (not designated for publication) (“In a habeas corpus proceeding,
without a complete record, nothing is presented for review.”).
Here, although the reporter’s record was due February 19, 2014, appellant
did not file a reporter’s record of the habeas hearing. On February 28, 2014, this
Court notified appellant that his reporter’s record was past due and ordered him to
file the record within ten days. Again, on April 9, 2014, appellant was notified that
his appeal would be considered without a reporter’s record unless he provided
proof that the record was to be filed or caused the record to be filed by May 9,
2014. Appellant did not cause the record to be filed. Because appellant failed to
file a complete record of his habeas corpus proceeding, nothing is presented for our
review. See TEX. R. APP. P. 37.3(c); Ex parte Sims, 565 S.W.2d at 49; Blacklock,
2001 WL 1249680, at *1.
Accordingly, we affirm the judgment of the trial court.
PER CURIAM
Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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