Alberto George Barron v. State ( 2004 )

NO. 07-03-0005-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 15, 2004

______________________________



ALBERTO GEORGE BARRON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;

NO. B 3664-0111; HONORABLE ED SELF, JUDGE

_______________________________

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

ORDER OF ABATEMENT AND REMAND

Appellant Alberto George Barron has given notice of appeal from a conviction and sentence in Cause No. B 3664-0111 in the 242nd District Court of Swisher County, Texas (the trial court). The appellate court clerk received and filed the trial court clerk's record on April 9, 2003, and received and filed the trial court reporter's record on October 15, 2003.

This court has granted two extensions of the time for filing appellant's brief. The brief was due on January 23, 2004, pursuant to the most recent extension of time granted for filing of the brief. On February 24, 2004, the appellate clerk sent appellant's counsel a letter requesting the status of the appellant's brief. A response to that letter was to be filed no later than March 9, 2004. There has been no response to that letter. The clerk's record reflects that appellant's counsel is retained, not appointed.

The series of motions to extend time for filing of appellant's brief, which has not been filed as of the date of this order, warrants remand of this matter to the trial court for determination of what measures would be appropriate to assure diligent pursuit of the appeal.

Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 38.8(b)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appellant has knowledge of and concurs in the delay in filing of his appellate brief to the extent that any sanctions for delay in filing of appellant's brief would be appropriately assessed against appellant; and (3) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued. If the trial court determines that the present attorney for appellant should be replaced, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter's record; (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the supplemental reporter's record; and (5) cause the records of the proceedings to be sent to this court. Tex. R. App. P. 38.8(b)(3). In the absence of a request for extension of time from the trial court, the supplemental clerk's record, supplemental reporter's record, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than April 22, 2004.

Per Curiam

Do not publish.

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NO. 07-10-0257-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

 JUNE 1, 2011

OLIVIA REYES TIENDA, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 137^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2009-422,182; HONORABLE CECIL G. PURYEAR, JUDGE

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

MEMORANDUM OPINION

            Following a jury trial, Appellant, Olivia Reyes Tienda, was convicted of credit card abuse,[1] a state jail felony, and sentenced to two years confinement.  In a single issue, Appellant asserts the trial court erred in admitting her written statement to law enforcement into evidence at trial without redacting two statements pursuant to Rule 403 of the Texas Rules of Evidence.[2]  We affirm.   

Background

            In January 2009, a Lubbock County Grand Jury returned an indictment alleging that, on or about November 20, 2008, Appellant presented an American Express credit card to David Miller,[3] with intent to fraudulently obtain a benefit, knowing that the credit card had not been issued to her, and with knowledge that the card was being used without the effective consent of the cardholder, Martha Van Zandt.

            In a two day trial, the jury heard evidence from two Target employees, Van Zandt, and three police officers.  The evidence showed that, on November 20, 2008, Appellant attempted to purchase more than $3,600 worth of electronic goods at Target using an American Express credit card issued to Van Zandt.  When the card was declined, the cashier sought assistance from Jason Vasquez, a Target supervisor.  Vasquez continued to swipe the card and it continued to be declined. As he was doing so, persons accompanying Appellant took two carts loaded with electronic goods to their car to load. Vasquez informed Appellant the goods would have to be returned and he then asked Miller to assist him. 

            Miller proceeded to the front of the store and observed two cars pull up to the store's entrance.  The occupants got out of the cars and began unloading the merchandise into carts.  Miller took the merchandise into the store and later determined that electronic goods worth approximately $390 were missing.  The entire transaction was videotaped and Appellant was identified by several witnesses as the person attempting to use the American Express credit card.

            In November 2008, Van Zandt, age seventy-seven, had recently undergone hip surgery.  She sought a housekeeper and found Appellant through the newspaper. Thereafter, Appellant cleaned her house three or four times.  When a Target representative called asking whether she had given permission to anyone to use her American Express credit card, she told them, "No."  She testified that Appellant was the only one, other than her husband, to have access to her bedroom where she kept the credit card in her dresser drawer. 

            During the testimony of Detective Tammie McDonald, over Appellant's objection, the State introduced Appellant's written statement given on December 10, 2008.  Specifically, Appellant sought to redact two statements:  "I know with my background I may not have a leg to stand on, but I am innocent," and "People have not judged me for my background."  Her attorney argued that the word "background" injected "some possibility of bad conduct or misconduct or an implication of something," and sought redaction under Rules 404(b), 402 and 401 of the Texas Rules of Evidence. The trial court overruled Appellant's objection and admitted the entire statement.

            Thereafter, the jury convicted Appellant and the trial court sentenced her to two years confinement.  This appeal followed.

Discussion

            Appellant asserts the trial court erred because it failed to redact portions of her written statement to law enforcement because the statements "injected some possibility of bad conduct or misconduct or an implication of something."  Further, Appellant contends the statements were irrelevant and any probative value was substantially outweighed by the danger of unfair prejudice and confusion of the issues.[4]

            To obtain reversal of a conviction based on an alleged error in the admission of evidence, an appellant must show that the trial court's ruling was in error and that the error harmed the appellant, i.e., that it affected his or her substantial rights.  See Tex. R. App. P. 44.2(b); Ladd v. State, 3 S.W.3d 547, 568 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1070, 120 S. Ct. 1680, 146 L. Ed. 2d 487 (2000).  In assessing harm, an appellate court considers everything in the record, including testimonial and physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case.  Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000)). 

            Having reviewed the entire record and summarized the evidence at trial above, we are confident that even if the trial court's admission of the statements was error, the admission of that evidence did not have a substantial or injurious influence on the jury's decision to convict her of credit card abuse.  See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001) ("We have determined that substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.")  See also King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) (disregarding the erroneous admission of evidence if that evidence did not have a substantial or injurious influence on the jury's decision). Accordingly, Appellant's single issue is overruled.

Conclusion

            The trial court's judgment is affirmed.

                                                                                    Patrick A. Pirtle

                                                                                          Justice

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[1]See Tex. Penal Code Ann. § 32.31 (West 2003).

[2]In this proceeding, the State did not file a brief nor request additional time to do so.  Accordingly, we have conducted an independent analysis of the merits of Appellant's claim of error, limited to the arguments raised at trial by the State, to determine if there was error.  See Little v. State, 246 S.W.3d 391, 397-98 (Tex.App.--Amarillo 2008, no pet.). The decision to independently review the merits of Appellant's issue should not be construed as approval of the State's failure to file a brief.  See Tex. Code Crim. Proc. Ann. art. 2.01 (West 2005) ("Each district attorney shall represent the State in all criminal cases in the district courts of his district and appeals therefrom . . . .)

[3]Miller testified that he was the asset protection manager at a Target store where the events the subject of this case occurred.

[4]Although Appellant's objection at trial was limited to relevancy under Rules 401 and 402 and character evidence generally under Rule 404, in the interest of justice, we will consider Appellant's argument that, although the evidence may have been relevant, its probative value was substantially outweighed by the danger of unfair prejudice under Rule 403.  See Tex. R. Evid. 401, 402, 403, 404.