Ex Parte Leslie Neal Wiley

• Court: Court of Appeals of Texas
• Decided: June 26, 2014
• Docket: 01-14-00010-CR
• Status: Published

Opinion

Opinion issued June 26, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00010-CR ——————————— EX PARTE LESLIE NEAL WILEY

On Appeal from the County Criminal Court at Law No. 3 Harris County, Texas Trial Court Case No. 1929135

MEMORANDUM OPINION

Appellant, Leslie Neal Wiley, appeals the denial of his pretrial application

for writ of habeas corpus. According to his first amended application for the writ

of habeas corpus, appellant was charged with the misdemeanor offense of driving

while intoxicated and the case proceeded to trial, but the trial court granted a

motion for mistrial he filed after the jury was selected and empaneled. Appellant sought the writ of habeas corpus to “bar the State from any re-trial [of his case] on

the grounds of double jeopardy.” The trial court denied his application for the writ

of habeas corpus on December 12, 2013. Appellant filed his notice of appeal on

December 20, 2013.

The appellate record was due in this Court on January 6, 2014. See TEX. R.

APP. P. 4.1(a), 31.1. Although the trial court clerk filed the clerk’s record on

January 3, 2014, appellant “has failed to file a reporter’s record from the hearing

on his application.” 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).

On January 7, 2014, the court reporter notified this Court that appellant had

neither requested nor paid for the reporter’s record. 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 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). On January 8, 2014, the Clerk of this Court notified

appellant that the Court might consider this appeal without a reporter’s record

unless appellant caused the record to be filed, provided proof of having made

2 payment arrangements for the reporter’s record, or provided proof that he was

exempt from paying for the reporter’s record by January 21, 2014. See TEX. R.

APP. P. 37.3(c). Appellant failed to respond.

“In a habeas corpus proceeding, without a complete record, nothing is

presented for review.” Blacklock, 2001 WL 1249680, at *1; 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, 49–50 (Tex. Crim. App. 1978) (“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 In re Mott,

137 S.W.3d 870, 875 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding) (“In

the absence of a reporter’s record, the court considering a habeas corpus

application will presume that there was evidence to support the trial court’s

judgment of contempt.”).

Accordingly, we affirm the judgment of the trial court.

PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).