Socorro Rodriguez v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00108-CR ______________________________



SOCORRO RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law No. 2 McLennan County, Texas Trial Court No. 20063184CR2

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss





MEMORANDUM OPINION

Socorro Rodriguez appeals from her conviction for the misdemeanor offense of following too closely. She was found guilty by a jury which assessed a fine of $200.00. She was sentenced accordingly. Rodriguez is not indigent.

Rodriguez filed her notice of appeal April 9, 2007. The clerk's record was filed June 18, 2007. That record contained no certification of Rodriguez' right of appeal. Unless the record contains a certification showing that a defendant has the right of appeal, we must dismiss the appeal. See Tex. R. App. P. 25.2(d). We informed Rodriguez of this defect in a letter dated July 10, 2007, and gave her until August 2, 2007, to supplement the record with the trial court's certification. That certification has not been filed.

Further, the reporter's record was due May 25, 2007. Rodriguez has not contacted the reporter to have that record prepared, nor has Rodriguez filed a docketing statement with this Court. See Tex. R. App. P. 32.2. Rodriguez is representing herself on appeal.

Rodriguez has made no effort to take the steps necessary to prosecute this appeal. In these circumstances, the prosecution of this appeal is Rodriguez' sole responsibility, and the failure to prosecute the appeal is solely attributable to Rodriguez' choices.

Accordingly, we dismiss this appeal for want of prosecution. See Stavinoha v. State, 82 S.W.3d 690, 691 (Tex. App.--Waco 2002, no pet.); Bush v. State, 80 S.W.3d 199, 200 (Tex. App.--Waco 2002, no pet.); see also McDaniel v. State, 75 S.W.3d 605, 605-06 (Tex. App.--Texarkana 2002, no pet.); Rodriguez v. State, 970 S.W.2d 133, 135 (Tex. App.--Amarillo 1998, pet. ref'd).

We dismiss the appeal for want of prosecution.

Josh R. Morriss, III

Chief Justice

Date Submitted: August 15, 2007

Date Decided: August 16, 2007

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consideration of the PSI report that contained much of the extraneous-offense evidence which now forms the basis of his appellate complaint. Therefore, his failure to object to the at-issue evidence at the earliest point of its admission means this issue has not been preserved for appellate review. See Tex. R. App. P. 33.1(a). Additionally, Bacon's insistence on the application of Blakely to the procedural posture of this case is entirely inappropriate because he voluntarily waived his right to have a jury determine his punishment in this case.

Moreover, as the State correctly notes in its appellate brief, our law expressly permits a trial court to admit evidence offered by either the State or the defendant

as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act . . . .

Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (Vernon Supp. 2007).

In pronouncing its sentence, the trial court made several comments about the extraneous-offense evidence brought forth. The trial court's comments suggest the court found the evidence of the at-issue extraneous offense(s) to have been proven beyond a reasonable doubt. Such a sufficiency finding was inherently necessary before the trial court could consider such acts in assessing Bacon's punishment. See id. (requiring finding that act committed beyond a reasonable doubt). Since Bacon does not now challenge that underlying finding, since our law expressly permits the trial court's consideration of such evidence, and since Blakely is entirely inapplicable to the procedural and factual posture of this case, we find no merit in Bacon's sole point of error.

We affirm the trial court's judgment.

Bailey C. Moseley

Justice

Date Submitted: April 2, 2008

Date Decided: April 3, 2008

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