Ex Parte Ronald E. Duncan

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-03-540 CR ____________________ EX PARTE RONALD E. DUNCAN On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 03-08-05975-CV MEMORANDUM OPINION (1) This is an appeal from an order withdrawing an application for writ of habeas corpus after relief had been previously granted. On August 18, 2003, the trial court caused the writ of habeas corpus to issue. On August 21, 2003, the trial court found Ronald Edwin Duncan to be indigent and unable to pay fines assessed by a lower court for illegal discharge of sewage, and ordered Duncan's liability for the fines to be discharged. On August 21, 2003, the trial court signed an order granting a motion to withdraw application for writ of habeas corpus. Alleging that he "conceded" to give up his rights to habeas corpus "under coercion and threats of re-incarceration," Duncan filed a motion to reinstate the habeas proceeding. The trial court denied the motion without a hearing. The appellant presents no issues for review on appeal. The brief filed by the appellant does ask this Court to remand the case to the trial court for a hearing on the writ. The record reflects that the application was withdrawn on the appellant's motion. On appeal, Duncan disputes the voluntariness of that action, and discusses at length his claim of actual innocence on a citation for "Illegal Discharge of Septic." He did not file a reporter's record of the hearing conducted by the trial court. The appellant has the burden of presenting an appellate record sufficient to show that the trial court erred; in the absence of a complete record, an appellate court is not in a position to overrule the trial court. Ex parte Gutierrez, 987 S.W.2d 227, 230 (Tex. App.--Austin 1999, pet. ref'd). Neither the involuntariness claim nor the actual innocence claim are supported by evidence to be found in the appellate record. Having reviewed the appellate record, and considering the arguments presented in the appellant's brief, we conclude no error requires reversal. The judgment of the trial court is affirmed. AFFIRMED. PER CURIAM Submitted on August 12, 2004 Opinion Delivered September 8, 2004 Do Not Publish Before McKeithen, C.J., Burgess and Gaultney, JJ. 1. Tex. R. App. P. 47.4.