NO. 07-03-0411-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D SEPTEMBER 1, 2005

______________________________ ALLEN Mc CHRISTIA N, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 181 ST DISTRICT COURT OF POTTER COUNTY; NO. 46,782-B; HON. JOHN BOARD, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS, and CAMPBELL, JJ. Appella nt, Allen McChristian, appeals his convicti on for sex ual assa ult of a c hild. In three issues, he complains that the trial co urt erred in 1) fai ling to comply wi th art. 36.01 of the Code of Criminal Procedur e, 2) failing to provide his trial counsel with a copy of the transcript of his previous trial for the same offense which resulted in a mistrial, and 3) failing to includein the a ppellate record of this cause the transcript of his first trial so that he could
assess whether counsel rendered effective assistance. We affirm the judgment of the trial court.2 Issue One - Plea to the Indictment In his first issue, appellant contends that the State failed to followart. 36.01 of the Code of Criminal Procedure with respect to his p lea. Tha t is, he p osits tha t it was e rror to allow his trial attorney to announce appellant’s plea to the indictment. We overrule t h e issue. According to art. 36.01, “special pleas , if a ny, shall be read by the defendant’s counsel, and if the plea of not guilty is also relied upon, it sh all also be stated .” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.01 (a)(2) (Ve rnon Sup p. 2004-0 5). This allows defense counsel to enter his client’s plea, absent anyone’sobjectio n. Presley v. State, 686 S.W.2d 764, 770 (Tex. App.– Fort Worth 1985, pet. ref’d). Furthermore, no one objected to that p rocedure being ut ilized h ere. Issue Two - Transcript of Prior Trial Next, appellant contends that the trial co urt erred in denyi ng him atranscript of his prior trial for the same charge. That proceeding resulted in a mistrial. We overrule the issue. To preserve a complaint for appellate rev i ew, the record must show that the appellant

made the trial court aware of the co mplain t by a timely request, objection, or motion. T EX
. R. A PP
. P. 33.1(a)(1) & (2). So too must it be shown that the trial court either 1) expressly or implicitly denied the request or motion or 2) refused to act upon it and the complaining party obj ected to t he refusa l. Id. at 33.1(a)(2)(A) & (B)

. While th e record contains the motion of appellant’s trial counsel requesting the transcript, nothing of record indicates thatthe trial court knew of the motion or acted upon it. And, assuming arguendo that the trial court refu sed to ac t, nothing of record illustrates that appellant objected to the court’s purported refusal. Given this, appellant did not preserve his complaint as required1 The reco rd ind icates that ap pellan t had the sa me trial cou nse l at both of his trials

. 3 by Rule 33 .1(a). See DeBlanc v. S tate, 799 S.W.2d 701, 709 (Tex. Crim. App. 1990) (stating that because the record did not show that the trial court was apprized of the issue, though written objections may have been filed with the court’s papers, i t was waiv ed); In
re Villarr eal, 96 S.W.3d 708, 710 n.2 (Tex. App.–Amarillo 2003, orig. proceeding) (stating that the c lerk’s kn owledgeof a fili ng is no t imputed to the tri al court)

. Next, and assuming arguendo thatthe purported error was preserved and the trial court impl iedly d enied the request, the record indicates that appellant’s trial counsel had
access in some manner to the prior testimony. 1 Several times counsel asked the victim if she recalled having previou sly testi fied in adifferen t way. Th e record also indicates, in one instance, that counsel showed her a “question and answer” and asked her to read from it. Appellant

does not deny that

he had access to questions propounded and answers given at the pri or trial. Therefor e, it doe s not app ear that a ppellan t suffered any harm. Issue Three - Transcript of Prior Trial for Appeal In his final issue, appellant asserts that thetrial court erred in refusing to include in the appellate record a transcript of his first trial. Thiswas purportedly needed to assist him in determining whether trial couns el a fforded appellant effective assistance during the second trial, especially when cross-examining the complaining witness. We overrule the issue. Authority

requires that an indigent defenda nt be furn ished a transcrip tion of th e court reporter’s notes of a prior tr ial whe n needed to prosecute an effective defense or appeal. Britt v. North Carolina , 404 U.S. 226 , 227, 92 S.Ct. 431 , 433, 30 L.Ed.2d 400, 403 (1971); Jackson v. State , 5 36 S.W.2d 371, 374 (Tex. Crim. App. 1976). Moreover, need i s presumed, and the burden l ies with the Stateto dispr ove it. Armour

v. State , 606 S.W.2d4

891, 894 (Tex. Crim. App. 1980). Yet, the failure to p rovide one may be harmless, as evinced in Britt

and Jackson . For

instance, when the trial court reb uffed app ellant’ s effort, in Jackson , to include the transc ript in the appellate record of the subsequent trial, our Court of Criminal Appeals overruled the objections. It di d so because Jackson had an alternatesource fo r obtaini ng the de sired in formation

. Jackson v . State , 536 S.W.2d at 374; see alsoBritt v. N orth Carolin a, 404 U.S. at 230, 92 S.Ct. at 435, 30 L.Ed.2d at 405 (holding that the lower court did not err in rejecting the request sin ce the appellant had avail able a n informal alternative that appeared to be substantially eq uivalent to a transcrip t). As mentione d under i ssue one , the reco rd indicates that ap pellant had acce ss to or otherwise possessed an item containing questions posed to the complaining witness in the former trial and her responses to them. Moreover, appellant’s counsel used the item while examining that samewitnessin the s ubsequen t suit. T hus, it app ears that he had an alternative source for the information he now suggests was im por tant in determining the effectiveness of trial counsel when examining the victi m, i.e. t he p rior testimony of the victim and the question s propoun ded to he r. M oreov er, no one suggests that this alternative source was insufficient to serve the needs of appella nt. Given this, therecord does not support a finding that he suffered harm due to the trial court’s decision. Accordingly, the judgment of the trial court is affirmed.

Brian Quinn Chief Justice Do not publish.