in the Interest of A. T. D., a Child ( 2007 )

NO. 07-06-0477-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 6, 2007

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IN THE INTEREST OF A.T.D., A CHILD

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 70,341-D; HONORABLE DON EMERSON, JUDGE

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Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

By the entry of an Order of Termination, signed November 21, 2006, the trial court terminated the parental rights of Appellant, Channon Michelle Adams, to her child, A.T.D. Appellant perfected this accelerated appeal by filing a pro se notice of appeal on December 11, 2006. The clerk's record and reporter's record were both filed and Appellant's brief was originally due February 12, 2007. On February 20^th this Court notified Appellant that unless the brief, or a response reasonably explaining Appellant's failure to file a brief, were filed on or before March 2, 2007, the appeal would be subject to dismissal for want of prosecution. Tex.R.App.P. 38.8(a). On March 14, 2007, Appellant filed a Motion For Extension of Time to File Appellant's Brief, which motion was granted thereby extending the deadline for the filing of Appellant's brief until the earlier of twenty days following the filing of a supplemental reporter's record or April 13, 2007. Appellant did not seek an extension of this deadline; however, the reporter did request an extension of time to file the supplemental reporter's record. The reporter's request was granted on April 17, 2007, extending the deadline for filing the supplemental reporter's record until May 15, 2007. At the same time, this Court sua sponte extended the deadline for filing Appellant's brief until 20 days following the filing of the supplemental record. The supplemental record was filed on May 15, 2007, making Appellant's brief due on Monday, June 4, 2007. On June 11^th this Court again notified Appellant that unless the brief, or a response reasonably explaining Appellant's failure to file a brief, were filed on or before June 21, 2007, the appeal would be subject to dismissal for want of prosecution without further notice pursuant to Rules 38.8(a)(1) and 42.3(b) of the Texas Rules of Appellate Procedure. To date this Court has received neither a brief nor another request for extension of time to file Appellant's brief.

Having failed to meet any of the five previous deadlines for the filing of Appellant's brief, the appeal is dismissed.

Per Curiam

up with Wilbon on June 14, 2004, searched her for money, weapons, or contraband, and fitted her with a recording device. Holder then drove Wilbon to an apartment complex, gave her $200, and dropped Wilbon off. Shortly thereafter, Wilbon came back to Holder's vehicle with crack cocaine.

In turn, Scott informed the jury that Wilbon indicated to him she could purchase crack cocaine from a person named Spunk. According to police records, that name referred to appellant. Scott also had Wilbon view a photo spread, and she identified appellant as Spunk. So too did Scott and his men conduct visual surveillance of Wilbon after she left Holder. Wilbon was seen walking through the apartment complex to an apartment. She talked to people at the abode while waiting for appellant to return. Soon, appellant arrived, and as he did, a child could be heard saying, "What's up, Spunk?" Thereafter, Wilbon left the apartment and was seen entering a vehicle with appellant who Scott recognized. Additionally, the vehicle's license plate was traced to a woman known to be appellant's girlfriend. Wilbon also was heard indicating to appellant that she was buying the cocaine for someone else and that she was going to make money off the transaction. So too was she heard counting the money in appellant's presence and requesting from him something in which to put the drugs.

The testimony of Holder and Scott was more than ample to connect appellant to the offense. See Dennis v. State, supra (finding the corroborating evidence sufficient when the informant and his vehicle were searched prior to the purchase, the defendant was observed coming out of a house and approaching the informant's vehicle, the informant called the defendant by name, words on an audio recording indicated the exchange of a substance for $400, the officer identified one of the voices on the tape as the defendant's, and when the informant returned to the officer he gave him cocaine); Jefferson v. State, 99 S.W.3d 790, 792-93 (Tex. App.-Eastland 2003, pet. ref'd) (holding the corroborating evidence sufficient even though the informant went by herself to a house to make the purchase since she had been searched before she left, the officer watched her go into the house, a recording was made of the transaction, the officer testified that the defendant's voice was on the recording, and the informant gave the officer cocaine when she returned to his vehicle). And, while appellant's voice was not identified, he nonetheless was visually identified by an officer as entering the vehicle in which the transaction occurred.

Issue 2 - Extraneous Offense

Appellant next contends that the trial court erred in admitting evidence of another sale of cocaine by him to Wilbon four days after the June 14, 2004 buy. ⁽¹⁾ The evidence was purportedly inadmissible under both Texas Rules of Evidence 404(b) and 403. We overrule the contention.

Evidence of extraneous offenses or bad acts may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). And, whether the trial court correctly admitted such evidence depends on whether it abused its discretion. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). That is, if the decision came within the zone of reasonable disagreement, then it was not wrong. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

Here, appellant concedes that "[t]rial counsel could have arguably raised the issue of whether [he] [a]ppellant committed the act he was accused of through cross-examination of the State's witnesses." Indeed, in attempting to discredit the testimony of Wilbon and Scott identifying him as the seller during the June 14^th sale, he place the issue of identity into play.

Next, it is true, as contended by appellant, that before evidence of an extraneous offense can be used to establish identity, the extraneous offense "must be so similar to the offense charged that the offenses are marked as the accused's handiwork." Lane v. State, 933 S.W.2d at 519; accord Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2002) (stating the same). Yet, there are several ways to satisfy this requirement. It may be done through proof of a common modus operandi or through proof of proximity in time and place. Lane v. State, 933 S.W.2d at 519. Moreover, the similarities between the offense for which the accused is being tried and the extraneous offense are sufficient if they make the latter relevant to the issue of identity. Jimenez v. State, No. 08-05-0046-CR, 2006 Tex. App. Lexis 9282 at *18 (Tex. App.-El Paso, October 26, 2006, no pet. h.); Thomas v. State, 126 S.W.3d 138, 144 (Tex. App.-Houston [1^st Dist.] 2003, pet. dism'd). For example, in Ranson v. State, 503 S.W.2d 810 (Tex. Crim. App. 1974), the extraneous offense was deemed admissible on the issue of identity since the same offense was committed both times, they occurred within a three-day period in the same city, and appellant (who was identified as participating in both) had a confederate in both. Id. at 813. The court in Jimenez also found the evidence admissible since the crimes were the same, the appellant was identified as participating in both, they occurred within a month of each other at dark in the same neighborhood, the same type gun was used, and the accused shot at his victims as they fled. Jiminez v. State, 2006 Tex. App. Lexis 9281 at *18. In each instance, the evidence may not have been of the ilk to show that the accused and only the accused could have done both. Instead, the similarities in manner, place, and time were enough to allow the trial court to reasonably infer that if he committed the extraneous offense, then he also committed the crime underlying his current prosecution. And, the same is true here.

First, we have a close proximity in time between the two offenses; only four days had lapsed. The proximity of location between the two is also remarkable; both drug transactions occurred around the same apartment complex on the 2100 block of East 4^th Street. So too were the crimes the same, i.e. a drug sale, and appellant was spied at each by the same police officer. Moreover, both transactions occurred within a vehicle controlled by appellant, the buyer and seller were alone during the transaction, the deals were completed in a very short period of time, and the contraband purchased was the same in each instance. These similarities between the two crimes suffice to render the extraneous evidence relevant on the issue of identity. Thus, we cannot say the trial court abused its discretion in concluding that the requirements of Rule 404(b) were satisfied.

As for the allegation that the relevance of the evidence was substantially outweighed by its alleged prejudice, we are told to consider four factors when deciding whether the trial court correctly ruled upon the Rule 403 objection. ⁽²⁾ They consist of assessing 1) whether the evidence compellingly made a fact of consequence more or less probable, 2) what the potential was for the evidence to impress the jury in some irrational, yet indelible, way, 3) how much time was spent developing the evidence, and 4) how great was the need for the evidence. Lane v. State, 933 S.W.2d at 520. Assessment of those criteria here leads us to no Rule 403 violation.

First, we again note that identity was at issue, and the similarity between the crimes noted above did much to identify appellant as the dealer in both instances. Thus, it can be said that the evidence in dispute was sufficiently compelling to make more probable a fact of consequence. Next, the trial court attempted to minimize the risk of the evidence causing an irrational impression by restricting the topics on which the jury could consider it. Third, while the extraneous offense was established through the testimony of two witnesses, they spoke about many other matters and were only two of the seven individuals to testify during the guilt/ innocence phase of the trial. So, a disproportionate amount of time was not spent developing the extraneous offense. Regarding the last criteria, we note that appellant wholeheartedly endeavored to discredit Wilbon, a drug abuser, as part of his trial strategy. Moreover, she was the sole eyewitness to the actual, initial drug transaction. This provided the trial court with reasonable basis to conclude that while the need for the evidence may not have been dire, it nonetheless existed. So, in sum, we cannot say that the trial court's decision to overrule the Rule 403 complaint fell outside the zone of reasonable disagreement and constituted an instance of abused discretion.

Having overruled each issue of appellant, we affirm the judgment of the trial court.

Brian Quinn

Chief Justice

Publish.

1. To the extent that appellant complains on appeal of the procedure used by the trial court in ruling on the admissibility of the evidence at a pretrial hearing, he failed to make such a complaint to the trial court and thereby waived any error.

2.

According to Texas Rule of Evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or of needless presentation of cumulative evidence.