NO. 12-22-00070-CR 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

AARON GALEN WALLS, JR., 

APPELLANT

V.

THE STATE OF TEXAS, 

APPELLEE

§

§ 

§ 

APPEAL FROM THE 114TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Aaron Galen Walls, Jr. appeals his conviction for possession of a controlled substance. 

In one issue, he argues that he is entitled to a new trial because portions of the record are lost. 

We affirm.

BACKGROUND

On May 13, 2021, Appellant was indicted for possession of a controlled substance in an 

amount of less than one gram, a state jail felony, enhanced to a third-degree felony with two 

previous state jail felony convictions.1 On December 13, 2021, Appellant appeared before the 

trial court and entered a plea of “guilty” to the charged offense and “true” to the enhancement 

allegations. The trial court ordered a pre-sentence investigation report (PSI) and set the matter 

for a sentencing hearing on January 14, 2022. 

Appellant failed to appear for the hearing and a warrant was issued for his arrest. 

Subsequently, the State withdrew its punishment recommendation of four years imprisonment. 

Appellant appeared before the court on March 4 for his sentencing hearing. The court 

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West Supp. 2021); see also TEX. PENAL CODE 

ANN. § 12.425(a) (West 2019) (“If it is shown on the trial of a state jail felony...that the defendant has previously 

been finally convicted of two state jail felonies...on conviction the defendant shall be punished for a felony of the 

third-degree.”).
2 

admonished Appellant that the State had withdrawn its punishment recommendation, and that 

Appellant could withdraw his “guilty” plea. Appellant told the trial court he wished to persist 

with his plea of “guilty” and have the trial court assess punishment. The trial court took judicial 

notice of the PSI, heard argument of counsel, and sentenced Appellant to ten years 

imprisonment. This appeal followed. 

After the appeal was filed, the parties discovered that three volumes of the record in this 

case are missing. Specifically, there is not a reliable record of three hearings: (1) a status hearing 

where the parties announced “ready” and the case was set for trial (volume four); (2) a hearing 

where Appellant entered his plea of “guilty” to the offense (volume five); and (3) a sentencing 

hearing for which Appellant failed to appear and a capias was issued (volume six).2

 

MISSING RECORD

In his sole issue, Appellant argues that missing portions of the record entitle him to a new 

trial pursuant to Rule 34.6 of the rules of appellate procedure. See TEX. R. APP. P. 34.6. The 

State counters that the missing portions of the record are not necessary to the disposition of the 

appeal and, therefore, Appellant is not entitled to a new trial. 

Discussion

The Texas Rules of Appellate procedure provide that an Appellant is entitled to a new 

trial under the following circumstances 

(1) if the appellant has timely requested a reporter’s record;

(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court 

reporter’s notes and records has been lost or destroyed or—if the proceedings were electronically 

recorded—a significant portion of the recording has been lost or destroyed or is inaudible;

(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed

exhibit, is necessary to the appeal’s resolution; and

(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by 

agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of 

the parties or with a copy determined by the trial court to accurately duplicate with reasonable 

certainty the original exhibit.

2 The court reporter who was responsible for recording volumes four, five, and six in this case has 

previously failed to accurately transcribe records in other unrelated cases. This court remanded those cases to the 

trial court for a hearing to determine whether the records could be recreated. The trial court realized that the reporter 

had been responsible for preparing volume four in this case and found that the record could not be recreated. 

Appellant and the State later realized that the same court reporter also prepared volumes five and six in this case as 

well. The parties agree that volumes four, five, and six are lost and cannot be recreated. 
3

TEX. R. APP. P. 34.6(f)(1-4). In Nava v. State, the Texas Court of Criminal Appeals discussed 

the third requirement of Rule 34.6(f), which is at issue in the instant case:

The third requirement—that the missing record be necessary to the appeal—was meant to mitigate 

against the harshness of a rule that might require a new trial even when no error actually occurred 

in the proceedings. The provision in the rule that the appellant show that the missing portion of the 

record is necessary to her appeal is itself a harm analysis. When an appellant has not been harmed 

by the missing portion of the record, he should not be granted relief. (internal quotations omitted).

415 S.W.3d 289, 306 (Tex. Crim. App. 2013) (citing Routier v. State, 112 S.W.3d 554, 571 

(Tex. Crim. App. 2003)). 

While Appellant notes in his brief that volumes four and six are missing, he confines his 

argument on appeal to volume five, the hearing at which he entered his “guilty” plea. Appellant 

does not specifically state how he is harmed by the missing portion of the record, beyond the 

following:

Without an accurate record of what transpired during the guilt/innocence hearing, appellate 

counsel, nor this Court can determine whether error occurred in the taking of the plea, the verbal 

admonishments provided, whether sufficient evidence supported the trial court’s findings, and 

whether there are any other errors in the judgments for the case.

The State correctly argues that a claim that “error” might exist is insufficient to show that 

a missing part of the reporter’s record is necessary to the resolution of an appeal. See In Interest 

of J.G., 587 S.W.3d 25, 31 (Tex. App.—Tyler 2018, no pet.). Furthermore, a suggestion by an 

appellant that the destroyed portion of the reporter’s record could potentially assist her on appeal, 

without more, does not make the missing portions of the record necessary to the appeal’s 

resolution. See Routier, 112 S.W.3d at 571. As the State correctly argues, Appellant offers only 

pure speculation regarding any potential points of error that could have been raised about his 

guilty plea hearing without any showing as to how that volume is necessary for the resolution of 

this appeal. However, as required by the rules of appellate procedure, we liberally construe 

Appellant’s argument to be that the record of the proceedings at which he waived his rights and 

pleaded “guilty” is fundamentally necessary to the resolution of his appeal. We disagree with 

this argument. 
4

The code of criminal procedure provides that 

The defendant in a criminal prosecution for any offense other than a capital felony case in which 

the state notifies the court and the defendant that it will seek the death penalty shall have the right, 

upon entering a plea, to waive the right of trial by jury, conditioned, however, that, except as 

provided by Article 27.19, the waiver must be made in person by the defendant in writing in open 

court with the consent and approval of the court, and the attorney representing the state. The 

consent and approval by the court shall be entered of record on the minutes of the court, and the 

consent and approval of the attorney representing the state shall be in writing, signed by that 

attorney, and filed in the papers of the cause before the defendant enters the defendant’s plea.

TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (West Supp. 2021). As the State points out, the 

written admonishments required by the code of criminal procedure were executed by Appellant 

on the day of his plea and are contained in the clerk’s record for our review. See id. art. 26.13

(West Supp. 2021) (listing the admonishments required before trial court can accept a plea of 

guilty or nolo contendere). Moreover, Article 26.13 provides that the trial court can admonish 

the defendant orally or in writing, with the exception of the admonition regarding consequences 

for defendants who are not citizens of the United States, which is required to be pronounced both 

orally and in writing.3 Id. We have reviewed the clerk’s record and it contains written 

admonishments, signed by Appellant, his attorney, the attorney representing the State, and the 

trial court, that address the range of punishment, plea bargains, citizenship, sex offender 

registration, community supervision, and competency, in compliance with Article 26.13. Id.

Further, the admonishments signed by Appellant and his attorney state that the waivers are 

“entered into by the Defendant freely, intelligently, knowingly and voluntarily.” See id. art. 

1.14(a) (West 2005). Moreover, Appellant signed a stipulation of evidence wherein he judicially 

confessed to each and every element of the offense as charged by the indictment. See Menefee 

v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) (stipulation of evidence which embraces 

3 Article 26.13 requires that an admonition regarding consequences for non-citizens be made both orally 

and in writing. TEX. CODE CRIM. PROC. ANN. art. 26.13(d-1) (West Supp. 2021). We note that the written 

admonishments contain an admonition regarding the consequences of pleading guilty if the defendant is not a United 

States citizen. Appellant does not specifically argue on appeal that he was not orally admonished regarding 

citizenship, nor does he assert that he is not a citizen of the United States. Moreover, Appellant does not argue he 

was harmed by any lack of oral admonition regarding citizenship, and we note that the lack of admonition regarding 

citizenship has been subject to a harm analysis. See Hill v. State, No. 12-20-00191-CR, 2022 WL 398814, at *6 

(Tex. App.—Tyler Feb. 9, 2022, no pet.) (mem. op., not designated for publication) (when record is silent as to 

whether the appellant is a citizen, the failure to admonish regarding citizenship consequences is not a basis to 

conclude the error is constitutional in nature or affects substantial rights.). The record in this case is silent as to 

whether Appellant is a United States citizen. 
5 

every constituent element of charged offense sufficient to support guilty plea). In conjunction 

with the stipulation, Appellant executed waivers of his right to trial by jury and his right to 

confront and cross examine witnesses. See TEX. CODE CRIM. PROC. ANN. art. 1.13(a). All of the 

aforementioned documents were executed in open court on the day the trial court accepted 

Appellant’s plea of “guilty.” Additionally, the trial court’s judgment reflects that Appellant 

waived the right to a trial by jury. See Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 

2002) (recitation in judgment that defendant waived trial by jury sufficient to render violation of 

Article 1.13 harmless, in absence of evidence to contrary). 

Finally, we note that Appellant was given the opportunity to withdraw his guilty plea at 

the February 4, 2022 hearing during which the State withdrew its plea offer. But instead, 

Appellant told the trial court he wished to persist with his guilty plea and have the court assess 

his sentence. Thereafter, at his open sentencing hearing, the trial court again asked Appellant if 

he wished to persist with his guilty plea, to which he responded “yes.” 

In sum, Appellant’s bare assertion that volume five is necessary to the resolution of this 

appeal is insufficient to warrant a new trial. See In Interest of J.G., 587 S.W.3d at 31. This is 

especially true in light of the existing record in the case, which shows full compliance with the 

necessary admonishments, and contains a signed stipulation of evidence and waiver of the right 

to a jury trial. See TEX. CODE CRIM. PROC. ANN. arts. 1.13(a); 1.14 (a),(b); 26.13(a-d1). For the 

above reasons, we overrule Appellant’s sole issue. 

CONCLUSION

 Having overruled Appellant’s sole issue, we affirm the trial court’s judgment. 

BRIAN HOYLE

Justice

Opinion delivered August 24, 2022. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT 

AUGUST 24, 2022 

NO. 12-22-00070-CR

AARON GALEN WALLS, JR., 

Appellant 

V.

THE STATE OF TEXAS, 

Appellee

Appeal from the 114th District Court 

of Smith County, Texas (Tr.Ct.No. 114-0900-21) 

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment. 

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of 

the court below be in all things affirmed, and that this decision be certified to the court below 

for observance.

Brian Hoyle, Justice. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.