Anthony Allen Whisenand v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-94-243-CR ANTHONY ALLEN WHISENAND, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0934646, HONORABLE JON N. WISSER, JUDGE PRESIDING PER CURIAM A jury found appellant guilty of burglary of a vehicle. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 30.04, 1973 Tex. Gen. Laws 883, 927 (Tex. Penal Code Ann. § 30.04, since amended). The district court assessed punishment at imprisonment for seven years and a $300 fine, probated. By a single point of error, appellant contends he is entitled to a new trial because the statement of facts does not contain the jury arguments of counsel. Tex. R. App. P. 50(e). Appellant timely requested a statement of facts including the jury arguments. Appellant has filed a motion to supplement the record supported by an affidavit from the court reporter stating that she has lost her notes containing the jury arguments and is therefore unable to complete the statement of facts. The State concedes that appellant has shown himself entitled to a new trial under Rule 50(e). See Culton v. State, 852 S.W.2d 512 (Tex. Crim. App. 1993). The point of error is sustained. The judgment of conviction is reversed and the cause is remanded to the district court for a new trial. Before Justices Powers, Aboussie and B. A. Smith Reversed and Remanded Filed: January 18, 1995 Do Not Publish