Robinson, Elmer Ray

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1369-05 ELMER RAY ROBINSON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

Keller, P.J., filed a dissenting opinion.

The Court acknowledges that we have no evidence in the record regarding the trial court's intent when it denied appellant's pro se motion for new trial. Because a trial court can "deny" a represented defendant's pro se motion for the reason that the motion is not properly before the court, the silent record in this case does not support appellant's claim for relief.

The Court, however, remands this case to the court of appeals to "determine" the trial court's intent. Since the record contains no indicia of intent, how will the court of appeals determine it? The only possible method would be to remand the case to the trial court to elicit an answer. But no authority exists for such a remand. The appellate rules permit a remand to the trial court if the trial court committed an error that impedes the presentation of the cause to the court of appeals. ⁽¹⁾ It is not enough that the trial court could supply information useful to evaluating a party's claim if the absence of that information was not due to any error on the trial court's part. ⁽²⁾

The burden is on the losing party to ensure that the record shows that he is entitled to relief. Rather than remand to allow the losing party in this case to add to the trial record, I would hold that appellant has not met his burden. I would affirm the judgment of the court of appeals.

With these comments, I respectfully dissent.

Delivered: November 21, 2007

Publish

1. Tex. R. App. P. 44.4 (remand permitted to remedy "erroneous action or failure or refusal to act").

2. Fakeye v. State, 227 S.W.3d 714, 717-18 (Tex. Crim. App. 2007).