Opinion
No. 05-83-00475-CR.
November 8, 1983.
Appeal from the 195th District Court, Dallas County, R.T. Scales, J.
A. Scott Shearer, Dallas, for appellant.
Before GUITTARD, C.J., and STEWART and SHUMPERT, JJ.
Ramiro Tanguma appeals his conviction for the offense of attempted murder. Punishment was assessed at eight years' imprisonment. By his motion to set aside the verdict, appellant maintains that he is entitled to a new trial because the trial court has failed to provide him with a statement of facts. We disagree and overrule the motion.
On April 1, 1983, appellant timely gave notice of appeal. No designation of the record was filed, and we find no other request for preparation of the statement of facts. Notice of completion of the record was filed on June 24, 1983. No objections to the record were filed. Accordingly, the trial court approved what record then existed, the transcript, on July 15, 1983. On October 5, 1983, appellant filed his motion to set aside the verdict, on the ground that the court reporter's notes were lost. In support of the motion, he tendered an affidavit from the court reporter to this effect, dated August 8, 1983.
To be entitled to reversal where the statement of facts is not filed, an appellant must show due diligence in requesting it and that the failure to file is not the result of negligence, laches, or other fault of appellant or his counsel. Timmons v. State, 586 S.W.2d 509, 512 (Tex.Cr.App. 1979). We conclude that appellant has failed to show due diligence. The record contains no designation of the record within twenty days after the notice of appeal, as required by Section 2 of article 40.09, Texas Code of Criminal Procedure (Vernon Supp. 1982-1983), or at any other time. Appellant did not request an extension of time to file the statement of facts nor did he file any objections to the record when it was completed. In Timmons the defendant made a prompt oral request for the statement of facts, filed a timely designation of the record, requested two extensions, and filed objections to the record. Here, so far as the record shows, appellant made no effort to obtain a statement of facts until more than four months after giving notice of appeal. The reporter's notes may well have been available if a prompt request had been made. Consequently, we hold that appellant is not entitled to have the verdict set aside on this ground.
Motion overruled.