Opinion
NO. 03-15-00685-CRNO. 03-15-00686-CRNO. 03-15-00687-CRNO. 03-15-00688-CR
04-28-2016
OK Kum Lowe, Appellant v. The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY, NOS. KI14-10645, KI14-10646, KI14-10647, KI14-10648, HONORABLE JOHN MICHAEL MISCHTIAN, JUDGE PRESIDINGMEMORANDUM OPINION
Appellant OK Kum Lowe was charged by complaint with two counts of tampering with a water-distribution system and two counts of unlawfully taking water. See Killeen, Tex., Code of Ordinances ch. 30, art. II, §§ 30-36, 30-37 (1963). After a jury trial in a municipal court of record, the jury convicted appellant on all counts and assessed punishment at fines of $2,000 and $1,000 for the two counts of tampering with a water-distribution system and a fine of $500 for each of the counts of unlawfully taking water. See id. The trial court further assessed court costs for each count.
Appellant filed a motion for new trial, which was denied by the municipal court. Appellant appealed the municipal court's judgment to the county court at law, which affirmed the municipal's court judgment. Proceeding pro se, appellant now appeals her convictions in three issues, arguing that the municipal court erred in (1) "not discovering the fact that [the] offenses . . . never occurred, but [appellant] was brought . . . to trial"; (2) "overlooking the illegal behaviors of the prosecutor committed against the Will of the U.S. Constitution"; and (3) failing to "repair" appellant's "situation . . . under the Power of the Bill of Rights." We will affirm the judgment of the county court at law.
DISCUSSION
The limited record before us shows that this is a case in which the State alleged that appellant used water without paying the City of Killeen and tampered with the city's water-distribution system at a residence owned by appellant. In appellant's brief, her main argument is that she should not have been prosecuted and convicted because the only documentary evidence showing that water was used without payment listed the names of appellant's tenants and made no reference to appellant. Because appellant references a lack of evidence connecting her to the offense, we interpret appellant's first issue as a challenge to the sufficiency of the evidence to support her conviction. Appellant's second and third issues are an extension of her first issue in that she argues that, given the lack of evidence against her, the State acted improperly in prosecuting her and the trial court acted improperly in allowing the prosecution to proceed.
However, none of the arguments presented in appellant's brief were mentioned in her motion for new trial. To perfect an appeal from a municipal court's judgment, the appellant must file a written motion for new trial with the municipal clerk setting forth the points of error of which the appellant is complaining, and the reviewing court must then determine the appeal based on the errors that were set forth in the appellant's motion for new trial. See Tex. Gov't Code § 30.00014(b), (c). Thus, an issue is not preserved for appellate review if the issue is not first raised in a motion for new trial. See Manno v. State, No. 03-14-00147-CR, 2015 WL 3453761, at *1 (Tex. App.—Austin May 27, 2015, no pet.) (mem. op., not designated for publication); Brooks v. State, 226 S.W.3d 607, 609 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Here, appellant stated the following in her motion for new trial: "I . . . am requesting a motion for a new trial because my witnesses could not come to the initial court date. I feel that I should have another chance to reveal my cases. I am truely [sic] innocent." Thus, appellant did not raise any of the issues in her motion for new trial that she raises in this appeal, and she has therefore failed to preserve error on all three issues. See Tex. Gov't Code § 30.00014(b), (c); Manno, 2015 WL 3453761, at *1; Brooks, 226 S.W.3d at 609.
Even if her motion for new trial could be construed as raising a challenge to the sufficiency of the evidence to support her conviction, appellant waived her right to have a record made of the trial-court proceedings, and we therefore have no reporter's record with which to determine the sufficiency of the evidence or whether appellant properly raised her appellate issues in the trial court. In a criminal case, if an appellant complains that "the evidence is insufficient to support a finding of guilt, the record must include all the evidence admitted at the trial on the issue of guilt or innocence and punishment." Tex. R. App. P. 34.6(c)(5); see O'Neal v. State, 826 S.W.2d 172, 173 (Tex. Crim. App. 1992) ("[A] defendant who wishes to raise a sufficiency issue on appeal has the burden of ensuring that the entire record of the trial before the fact finder is before the appellate court."). Notations in the clerk's record in this case indicate that witnesses testified at trial and that exhibits were admitted into evidence, but none of the evidence is before us in this appeal. Without a reporter's record of the evidence before the jury, appellant cannot demonstrate that the evidence is insufficient. See Skinner v. State, 837 S.W.2d 633, 634 (Tex. Crim. App. 1992) ("[A]n appellate court cannot determine the merits of a challenge to the sufficiency of the evidence without a review of the entire record of the trial before the fact finder."); Martin v. State, 13 S.W.3d 133, 140 (Tex. App.—Dallas 2000, no pet.).
For the above reasons, we overrule appellant's three issues.
CONCLUSION
Having overruled all of appellant's issues, we affirm the judgment of the county court at law.
/s/_________
Cindy Olson Bourland, Justice Before Chief Justice Rose, Justices Pemberton, and Bourland Affirmed Filed: April 28, 2016 Do Not Publish