                     ....'.'   ;j*"s!r




                                         (Unitri of Appeals
                     iTtftlf Etsirtri of Gkxas ai lallas
                                               JUDGMENT

TOMMY LOUIS SCOTT, Appellant                        Appeal from the Criminal District Court
                                                    No. 2 of Dallas County, Texas. (Tr.Ct.No.
No. 05-91-01757-CR                        V.        F91-33568-UI).
                                                    Opinion delivered by Justice James,
THE STATE OF TEXAS, Appellee                        Justices Lagarde and Whittington
                                                    participating.


      Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.




Judgment entered January 24, 1997.
                        S&sls>Sr:*«<',*??^S^




AFFIRM and Opinion Filed January 24, 1997




                                                     In The

                             GLaurt at Appeals
                     ITtfty BxzMcl at Gkxas ai lallas
                                               No. 05-91-01757-CR



                             TOMMY LOUIS SCOTT, Appellant

                                                      V.


                                THE STATE OF TEXAS, Appellee


                   On Appeal from the Criminal District Court No. 2
                                Dallas County, Texas
                            Trial Court Cause No. F91-33568-UI



                                                OPINION

                    Before Justices Lagarde, Whittington, and James
                                Opinion By Justice James

       Appellant Tommy Louis Scott appeals his conviction for burglary of a vehicle. On

April 17, 1991, appellant entered a guilty plea and the trial court deferred an adjudication

of guilt and placed appellant on four years' probation with a $750 fine. On November 1,

1991, the trial court granted the State's motion to proceed to an adjudication of guilt,

accepted appellant's plea of true, and sentenced appellant to ten years' confinement with
a $750 fine. In his sole point of error, appellant contends he is entitled to a reversal and

remand for a judgment of acquittal or to a new trial because the official reporter lost or

destroyed the notes and records from the April 17, 1991 hearing through no fault on his

part. Because appellant did not make a timely request to the official reporter to prepare

the statement of facts, we affirm the trial court's judgment.

       According to Texas Rule of Appellate Procedure 50(e):

              When the record or any portion thereof is lost or destroyed it
              may be substituted in the trial court and when so substituted the
              record may be prepared and transmitted to the appellate court
              as in other cases. If the appellant has made a timely request
              for a statement of facts, but the court reporter's notes and
              records have been lost or destroyed without appellant's fault,
              the appellant is entitled to a new trial unless the parties agree
              on a statement of facts.


Tex. R. App. P. 50(e). For appellant to prevail under Rule 50(e), he must show he made

a timely request to the court reporter for the statement of facts and the court reporter has

lost or destroyed the notes through no fault on appellant's part. Culton v. State, 852 S.W.2d

512, 514 (Tex. Crim. App. 1993). A "timely request" under Rule 50(e) is a written request

to the official court reporter at or near the time appellant perfected his appeal. Id. At all

times, appellant has the burden to establish he has been deprived ofthe statement offacts.
See Stewart v. State, 856 S.W.2d 567, 572 (Tex. App.-Beaumont 1993, no pet.).

       On November 1, 1991, the trial court granted the State's motion for an adjudication

of guilt and assessed a punishment of ten years' confinement and a$750 fine. Appellant had



                                              -2-
                1-*^J?w>S/**-*S'*   .................   !^**S;!?




thirty days in which to perfect his appeal. See Tex. R. App. P. 41(b)(1). On November 15,

1991, appellant filed a document with the trial court entitled Defendant's Notice of Appeal,

Proof of Indigency, & Designation of Record. In this document, appellant asks the trial

judge to order the court clerk and the court reporter to prepare a statement of facts

reflecting all the evidence presented in the case. This document does not include a

certificate of service or any indication that appellant sent a copy to the official reporter.

       According to Texas Rule of Appellate Procedure 53(a):

              The appellant, at or before the time prescribed for perfecting
              the appeal, shall make a written request to the official reporter
              designating the portion of the evidence and other proceedings
              to be included therein.


Tex. R. App. P. 53(a). The document appellant filed with the trial court is the only

document in the transcript reflecting any type of request to the official reporter to prepare

the statement of facts. The broad request included in the document does not constitute a

"timely request" as prescribed by Rule 53(a) because it is not a written request to the

official reporter. Culton, 852 S.W.2d at 515; Broxton v. State, 909 S.W.2d 912, 914 (Tex.

Crim. App. 1995). If appellant made a proper and timely request to the court reporter,

there is no such letter or motion in the transcript appellant filed with this Court. See

Broxton, 909 S.W.2d at 914. Because appellant failed to make a timely request to the

official reporter, we overrule his point of error.




                                                                   -3-
      For the reasons set forth above, we affirm the trial court's judgment.




Lagarde, J., concurring opinion

Do Not Publish
Tex. R. App. P. 90
911757F.U05




                                           -4-
Opinion Filed January 24, 1997




                                           In The

                               (£aurt at Appeals
                       Witttf iBtstrtri of Qkxas at Sallas
                                     No. 05-91-01757-CR



                           TOMMY LOUIS SCOTT, Appellant




                            THE STATE OF TEXAS, Appellee


                     On Appeal from the Criminal District Court No. 2
                                  Dallas County, Texas
                           Trial Court Cause No. F91-33568-UI


                              CONCURRING OPINION

                      Before Justices Lagarde, Whittington, and James
                                Opinion By Justice Lagarde

      I concur in the result only.


                                                                        t^Ub^S
                                                    SUE^AGARDE
                                                    JUSTICE


Do Not Publish
Tex. R. App. P. 90
911757CF.U05
