majority">

OPINION

NYE, Chief Justice.

Appellant was indicted for the offense of delivery of a controlled substance, namely, at least four hundred grams of cocaine. Appellant entered a plea of guilty. The trial court assessed the recommended punishment of thirty-five years imprisonment and a fine of $100,000. As the sole point of error, appellant contends the court erred by not granting his motion to dismiss because he was entrapped as a matter of law.

Prior to entering his guilty plea, appellant filed a “Motion to Dismiss on Account of Entrapment.” On July 15, 1988, the motion was dismissed by the trial court. Although the parties’ briefs refer to a statement of facts transcribing a hearing on the motion that took place on July 15, 1988, that statement of facts is not in the record.

Appellant requested a complete statement of facts, including transcriptions of all pre-trial hearings in his designation of the appellate record. On October 7, 1988, this court sent a letter to appellant’s attorney stating that “the statement of facts (2 volumes) in the above cause was this day marked ‘received’ in this Court,” and it instructed the attorney to file a motion for leave to file the statement of facts. After the motion was filed and granted, we notified appellant that the statement of facts had been ordered filed.

Neither of the two volumes contains a transcription of the Motion to Dismiss hearing. That is the basis of appellant’s complaint. Appellant made no objections to the appellate record. It is a rule of law *510that makes it appellant’s duty to ensure that the record contains all materials necessary for appellate review. Tex.R.App.P. 50; see also McGlynn v. State, 704 S.W.2d 18, 20 (Tex.Crim.App.1986); Soliz v. State, 693 S.W.2d 518, 519 (Tex.App.—Corpus Christi 1985, no pet.). Absent a sufficient record to determine if the trial court erred, we overrule appellant’s point of error and AFFIRM the judgment of the trial court.

DORSEY, J., concurs.

DORSEY, Justice,

concurring.

As the majority points out, the transcription of the hearing on appellant’s motion to dismiss is not contained in the record before us. Neither party currently has notice of this fact.

It is clear, however, that the missing volume was prepared by the court reporter; both parties make reference to page citations of the transcription in their appellate briefs. For reasons unknown to us, the volume simply was not filed with this Court.

I submit that the problem may be resolved in either of two ways. First, and most preferably, notice should be given to the parties that a complete statement of facts has not been received and that they are entitled to request supplementation of the record before an opinion is rendered by this Court. In the alternative, we should render a decision as per the majority and subsequently notify the parties that they are entitled to request supplementation of the record. See Pike v. State, 772 S.W.2d 130 (Tex.Crim.App.1989). I concur with the majority opinion on the condition that appellant be allowed to supplement the record with the missing volume of the statement of facts.

Citation profile

Relationships

How this case has been treated — in progress