Frank Leon Farmacka v. State

• Court: Court of Appeals of Texas
• Decided: March 7, 2007
• Docket: 12-06-00212-CR
• Status: Published

Opinion

                                                NO. 12-06-00212-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FRANK LEON FARMACKA,         §                      APPEAL FROM THE 217TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant was charged with aggravated sexual assault of a child and pleaded “guilty.”  The matter proceeded to a bench trial on punishment.  Ultimately, the trial court sentenced Appellant to imprisonment for thirty-five years.  This appeal followed.  In two issues, Appellant argues that the trial court erred in failing to consider the entire range of punishment and that his sentence constitutes cruel and unusual punishment.  We affirm.

            An appellant’s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.  See Tex. R. App. P. 38.1(h).  Failure to cite to the record in support of an issue provides an appellate court with nothing to review.  See Derrick v. State, 773 S.W.2d 271, 274 (Tex. Crim. App. 1989); Nguyen v. State, 177 S.W.3d 659, 669 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d).

            In the case at hand, Appellant wholly failed to make reference to the record to support any factual assertion in his brief.  Therefore, we hold that by his failure to comply with Rule 38.1(h), Appellant has waived his issues on appeal.  Appellant’s first and second issues are overruled.¹

            Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered March 7, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

---

¹ Even had Appellant not waived his issues by his failure to comply with Rule 38.1(h), the outcome of this appeal would not differ.  Our review of the record indicates that Appellant made no objection to the trial court raising the issue of cruel and unusual punishment and has, therefore, waived such an issue on appeal.  See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); see also Tex. R. App. P. 33.1.  Furthermore, there is no indication in the record that the trial court failed to consider the full range of punishment, nor did Appellant make any objection to the trial court concerning his contention that it failed to do so.  See Tex. R. App. P. 33.1.