in the Interest of C.H., C.H. and C.H., Minor Children ( 2004 )

NO. 07-04-0428-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 25, 2004

______________________________



IN THE INTEREST OF C.H., C.H. AND C.H., CHILDREN



_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2002-518,450; HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant, Deanna McCann filed a pro se notice of appeal on August 17, 2004. The clerk's record was filed on September 24, 2004, but no reporter's record has been received. ⁽¹⁾ The court reporter filed a request for extension of time to file the record and informed this court that as of October 15, 2004, appellant has not paid or made arrangements to pay for the record.

On September 17, 2004, appellant was directed by letter to certify to the clerk of this court, by September 27, 2004, in writing, whether Rules 34.5(10), 34.6(b)(1), and 35.3(a)(2), (b)(2) of the Texas Rules of Appellate Procedure had been complied with; if so, the date of the compliance, and if not, a reasonable explanation for non-compliance. She was informed that failure to comply with the court's directive might result in dismissal. After appellant failed to respond, a second letter was sent on September 30, 2004, informing appellant that failure to comply by October 11, 2004, would result in dismissal of the appeal.

On October 12, 2004, this court received appellant's response, but the response does not include the information appellant was directed to provide. Because appellant has failed to provide proof that she has paid for the reporter's record or made satisfactory arrangements for the payment of the record as directed by the court, we dismiss the appeal pursuant to Texas Rule of Appellate Procedure 42.3(b) and 42.3(c).

Per Curiam

1. ' '

Anders brief and motion to withdraw filed by his counsel. Appellant has not filed a brief or other response. Nor has the State filed a brief in this appeal.

In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.). If this court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).

The sole potential issue discussed in counsel's brief addresses objections made during voir dire concerning enhancement of punishment based on prior convictions. The objection was prompted by the following statement by the prosecutor:

However under our law, we have a number of what we call habitual offender statutes. And what those habitual statutes do is if you've been convicted of a felony before or two felonies and you've gone to prison, you can have your punishment range enhanced. In a state jail felony, if you have been convicted of two prior state jail felonies, your punishment range is enhanced.

Defense counsel objected on the basis the comments "are obviously implying my client has been convicted of more than one felony prior to this, and I think that tends to prejudice the jury from the very outset that he has been convicted of a crime." After the objection was overruled, the prosecutor continued his discussion of the issue, stating "I can't talk to you about what the facts are in this specific case. . . . I'm not going to sit and talk to you about capital murder, when I know that issue is not going to come up during the trial." The prosecutor individually questioned several panel members about their views on the effect of prior convictions on appropriate punishment.

Defense counsel renewed his objection to which the court responded that it may have been error not to instruct the prosecution not to discuss the causes of enhanced punishment because the prosecutor's questions made the prior convictions "just so clear to them." The court ultimately overruled the objection.

Appellate counsel's brief does not cite authority relevant to the issue but concludes any error was waived when appellant testified to his criminal history on both direct and cross-examination at the guilt or innocence stage of the trial.

Enhancement allegations or evidence of prior offenses ordinarily may not be presented to the jury or venire prior to the punishment stage of trial. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon supp. 2004) (allegations in indictment of prior convictions for purpose of enhancement shall not be read to jury before punishment phase). See also Hollen v. State, 117 S.W.3d 798, 799 (Tex.Crim.App. 2003). We agree appellant's admission of his prior convictions waived any error and no issue is presented for appeal. See Penry v. State, 691 S.W.2d 636, 655 (Tex.Crim.App. 1985) (admission of the same evidence elsewhere without objection cures any error).

Our review of counsel's brief and the record convinces us that appellate counsel conducted a thorough review of the record. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Stafford, 813 S.W.2d at 511. We agree it presents no meritorious grounds for review. We affirm the judgment of the trial court.

The court takes notice that appellate counsel died during the pendency of this appeal. We dismiss counsel's motion to withdraw as moot.

James T. Campbell

Justice

Do not publish.