## NO. 12

- 22

- 00070 -CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

AARON GALEN WALLS, JR. , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ A PPEAL 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.

B ACKGROUND 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 wa s 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 T EX

. H EALTH & S AFETY C ODE A NN

. § 481.115(b) (West Supp. 2021 ) ; see also T EX

. P ENAL C ODE A NN

. § 12.425(a) (West 2019) (“If it is sho wn 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- degree.”).2 admonished Appellant that the State had withdrawn it s punishment recommendation, and that Appellant could withdraw his “guilty” plea.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 par ties discovered that three volumes of the record in this case are missing. Specifically, there is not a reliable reco rd of three hearings: (1) a status hearing where the parties announced “ready” and the case was set for trial (volume four) ; (2) a hearing
wher e Appellant entered his plea of “guilty” to the offense (volume five ) ; and (3) a sentencing hearing for which App ellant failed to appear and a capias was issued (volume six ). 2

M ISSING R ECORD In his sole issue, Appellant argues that missing portions of t he record entitle him to a new trial pursuant to Rule 34.6 of the rules of appellate procedure. See T EX

. R. A PP

. P. 34.6. The
State counters that the missing portions of the record are not necessary to the disposition of the appeal and , there fore, Appella nt is not entitled to a new trial.
Discussion The Texas Rules of Appellate procedure provide that a n 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 t h e 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 o r 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 ca nnot be rep l aced 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 i n 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 t rial 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 p arties agree that volumes four, five, and six are lost and cannot be recreated.3 T EX

. R. A PP

. P. 3 4.6(f) (1

- 4). In Nava v. Stat e , the Texas Court of Criminal Appeals discussed the third requirement of R ule 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 aga i nst 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 appell ant show that the missing portion of the record is necessary to her appeal is itself a harm analys i s. 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. 20 0 3) ). While Appellant notes in his brief that volumes four and six are missing, he confines his argument on appe al to volume five, the hearing at which he entered his “guilty” plea. Appellant
does not specifically state how he is harmed by the missing p ortion of the record, beyond the following :

Without an accurate record of what transpired during the guilt/innoc ence hearing, appellate counsel, nor this Court can determine whether error occurred in the taking of the plea, the verbal admonishments prov i ded, whether sufficient evidence supported the trial court’s findings, and whether there are any other errors in t he judgments for the case.

The State correctly argues that a claim that “error” might exist is insufficient to show that a missing part of t he 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 nece ssary to the appeal ’ s

res olution. See Routier , 112 S.W.3d at 571

. As the State correctly argues, Appellant offers only pure speculation regarding any potential poin t s 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 arg ument to be that the record of the proceedings at which he waive d his rights and pleaded “guilty” is fundamentally necessar y to the resolution of his appeal. We disagree with this argument

.4 The code of criminal procedure provides that

The defendant in a crimin al prosecution for any offense other than a capital felony case in which the state noti fies the court and the defe ndant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditione d, howeve r, that, except as provided by Article 27.19, the waiver must be made in person by the defendant in writing in ope n court with the consent and approval of the court, and the attorney representing the state. The consent and approval by the court s hall be e ntered of record on the minutes of the court, and the consent and approval of the attor ney 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.

T EX

. C O DE C RIM

. P RO C

. A NN

. a rt. 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 re view. See id

. a rt. 26.13 (West Supp. 2 021 ) (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 regard ing 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 writ ten admonishment s , signed by Appellant, his attorney, the attorney representing the State , and the
trial court , th at address the range of punishment, plea bargains, citizenship, sex offender registration, community supervision , and competency , in complianc e with Article 2 6.13. Id. Further, the ad monishments 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 stipul atio n 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 embrac es

3 Article 26.13 requires that an admonition regarding consequences for non

- citizens be made both orally and in writing. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 2 6.13 (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 orall y admonished regardi ng citizenship, no r 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 t hat 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) ( whe n record is silent as to whether the appellant is a citize n , the failure to ad monish regarding c itizenship consequences is no t 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 constit uent element of cha rged offe nse sufficient to support guilty plea). In conjunction with the stipu lation, Appellant executed waivers of his right to trial by jury and his right to
confront an d cross examine witnesses. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 1.13(a)

. All of the
aforementioned documents were executed in open court on the day the trial cour t 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 3 46, 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 Appella nt was given the opportunity to withd r aw 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. T hereafter, at his open sent encin g 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 li ght of the existing record in the case, which shows full compliance with the necessary admonishments, and contains a signed stipulation of evi dence and waiver of the rig ht to a jury trial. See T EX

. C ODE C RIM

. P ROC

. A NN . arts. 1.13 (a) ; 1.14 (a),(b) ; 26.13(a- d1). For the above reasons, w e overrule Appellant’s sole issue.

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

B RIAN H OYLE Justice
Opinion delivered August 24, 2022. Panel consisted of Worthen, C.J., Ho yle, 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 brief s 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 bel ow for observance.
Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.