$2,848.69 U.S. Currency, 77 Gambling Devices, Assorted Gambling Equipment, Paraphernalia and Proceeds v. State

• Court: Court of Appeals of Texas
• Decided: June 25, 2015
• Docket: 13-13-00524-CV
• Status: Published

Opinion

NUMBER 13-13-00524-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI—EDINBURG

$2,848.69 U.S. CURRENCY, 77 GAMBLING DEVICES, ASSORTED GAMBLING EQUIPMENT PARAPHERNALIA, AND PROCEEDS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 445th District Court of Cameron County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez, and Justices Benavides and Perkes Memorandum Opinion by Justice Perkes

This is a civil-forfeiture case. Appellant Patricio Marco Ahumada Jr. appeals the

trial court’s judgment in favor of the State. See TEX. CODE CRIM. PROC. ANN. art. 18.18(b)

(West, Westlaw through 2015 R.S.). By three issues, appellant argues: (1) the State did not provide notice that appellant would not be prosecuted, as mandated by article

18.18(b); (2) the trial court improperly struck all of appellant’s testimony because he

invoked his Fifth Amendment right not to incriminate himself; and (3) the trial court’s

actions prevented appellant from properly defending himself. We affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

Pursuant to a search warrant, the Brownsville Police Department seized

computers and networking equipment, cash, and other miscellaneous property located in

an establishment named the “Gold Mine 777.” The State filed an original petition for

forfeiture, alleging the property constituted gambling devices, and assorted gambling

equipment, paraphernalia, and proceeds. The State’s petition further alleged that

appellant was a party with an interest in the seized property.

Appellant filed an answer generally denying the State’s allegations and asserting

affirmative defenses and special exceptions. After a bench trial, the trial court granted

forfeiture. This appeal followed.

The clerk’s record was filed in this case, but the reporter’s record was not filed.

The reporter’s record was due on November 8, 2013; however, the court reporter has

informed this Court that appellant failed to request the reporter’s record and make

arrangements for payment of the reporter’s record. The Clerk of this Court informed

appellant’s counsel that appellant had ten days to request and arrange payment for the

reporter’s record. That deadline passed and no reporter’s record was filed. See TEX. R.

APP. P. 37.3(c).

II. ABSENCE OF REPORTERS RECORD

Appellate courts must base their decisions on the record as made and brought

forward, not on a record that should have been made or that could have been made. Mar.

2 Overseas Corp. v. Ellis, 971 S.W.2d 402, 411 (Tex. 1998). Moreover, “[a]n appellant has

the burden to bring forth sufficient record and authority to support reversible error.”

Rosenblatt v. City of Houston, 31 S.W.3d 399, 407 (Tex. App.—Corpus Christi 2000, pet.

denied). A point of error not supported by authority is waived. Id. (citing Trenholm v.

Ratcliff, 646 S.W.2d 927, 934 (Tex.1983)).

Examination of appellant’s issues on appeal require a transcript of the court's

hearing. It was appellant’s burden to properly initiate the completion of a record sufficient

to demonstrate reversible error. Aguero v. Aguero, 225 S.W.3d 236, 237 (Tex. App.—El

Paso 2006, no pet.); see Willie v. Donovan & Watkins, Inc., No. 01–03–00890–CV, 2005

WL 375328, at *2 (Tex. App.—Houston [1st Dist.] Feb. 17, 2005, no pet.) (mem. op.).

This Court has determined that no transcript of the reporter's record was requested by

appellant. Because appellant has failed to request a transcript of the hearing and has

raised points of error on appeal involving matters omitted from the record before us, his

actions have prevented us from adequately addressing his dispute. Aguero, 225 S.W.3d

at 237. “By so inhibiting an appellate court, the appellant waives his complaint.” Id.; see

also Southland Lloyd's Ins. Co. v. Tomberlain, 919 S.W.2d 822, 832 n. 6 (Tex. App.—

Texarkana 1996, writ denied). Accordingly, appellant’s first, second, and third issues are

overruled.

IV. CONCLUSION

We affirm the trial court’s judgment.

GREGORY T. PERKES Justice

Delivered and filed the 25th day of June, 2015.