Richard Melvin Hack v. State

• Court: Court of Appeals of Texas
• Decided: December 31, 2019
• Docket: 02-19-00235-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00235-CR No. 02-19-00236-CR ___________________________

RICHARD MELVIN HACK, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court Nos. 1497903D, 1526936D

Before Birdwell, Womack, and Wallach, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

Richard Melvin Hack raises a single issue in his appeals from the trial court’s

orders adjudicating him guilty of theft and evading arrest or detention with a motor

vehicle: “The trial court erred in failing to make an adequate record of the probation

revocation proceeding so that the matter could be reviewed on appeal.” We affirm.

The reporter did not record the adjudication proceedings,1 but nothing in the

clerk’s record indicates why. Nor does the clerk’s record show that appellant

complained to the trial court about this failure. The Texas Court of Criminal Appeals

has held that such a complaint must be preserved in the trial court to be addressed on

appeal; in other words, this complaint is subject to normal error-preservation

principles. See Davis v. State, 345 S.W.3d 71, 77 & n.21 (Tex. Crim. App. 2011)

(“[E]ven if Rule 13.1 does impose a preliminary burden on the trial court to ensure the

presence of a court reporter at all proceedings, our case law also imposes an

additional, independent burden on the appealing party to make a record

demonstrating that error occurred in the trial court.”). Thus, although appellant argues

that the trial court’s error deprived him of due process under the Fourteenth

Amendment, we may not address that complaint because he failed to ensure that the

clerk’s record shows he raised it in the trial court. See id.; Yazdchi v. State, 428 S.W.3d

831, 844 (Tex. Crim. App. 2014); see also Boykin v. Alabama, 395 U.S. 238, 241–42, 89

S. Ct. 1709, 1711 (1969) (reviewing adequacy of record to show whether Boykin’s

1 Appellant pleaded true to the State’s allegations in both cases.

2 guilty plea was knowing, voluntary, and intelligent because Alabama law did not

require preservation of that complaint in the death penalty context).

We overrule appellant’s sole issue and affirm the trial court’s judgments.

/s/ Wade Birdwell

Wade Birdwell Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: December 31, 2019