Opinion issued August 5, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00126-CR
                           ———————————
            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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