Benedict Chinonso Emesowum v. State ( 2015 )

Opinion issued July 28, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00116-CR
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BENEDICT CHINONSO EMESOWUM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 10
Harris County, Texas
Trial Court Case No. 1849562
MEMORANDUM OPINION
Benedict Emesowum appeals his conviction for assault.1 He has made no
arrangements to supply a court reporter’s record to the Court. See TEX. R. APP. P.
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TEX. PENAL CODE ANN. § 22.01 (West 2011).
35.2. Emesowum claims that he is indigent and thus entitled to a reporter’s record
free of cost. See TEX. R. APP. P. 35.3(b)(3).
Previously, we remanded this case to the trial court to determine whether
Emesowum was indigent. See TEX. R. APP. P. 37.3(a)(2), 38.8(b). After two
hearings, the trial court found that Emesowum is not indigent. We subsequently
denied Emesowum’s “Motion to Review the Arbitrary Indigency Ruling by Trial
Court” and ordered the court reporter to file an information sheet disclosing
whether arrangements had been made for payment of a reporter’s record within 12
days of that order.
Emesowum unsuccessfully petitioned the Court of Criminal Appeals to
review our order. After we received notice that the Court of Criminal Appeals
dismissed the petition as untimely, we issued another order (1) noting that we had
received the court reporter’s information sheet indicating that she had not been
paid for the reporter’s record, (2) announcing our intention “to move forward with
this appeal on any points and issues which do not require a reporter’s record,” and
(3) informing Emesowum of his appellate brief’s due date. See TEX. R. APP. P.
37.3(c), 38.8(b)(4).
In his brief, Emesowum asserts that we erroneously denied his petition for
writ of mandamus in In re Emesowum, No. 01-13-00703-CR, 2013 WL 5276097,
at *1 (Tex. App.—Houston [1st Dist.] Sept. 19, 2013, no pet.) (mem. op., not
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designated for publication). There, we denied Emesowum’s petition regarding
certain pretrial matters in this case. Id. With respect to our holding in In re
Emesowum, the deadline to file a motion for rehearing or a petition for
discretionary review has passed. TEX. R. APP. P. 49.1, 49.7, 53.7(a).
Emesowum further contends that the State failed to disclose unspecified trial
evidence before trial; certain witnesses gave false, incredible, or unfairly
prejudicial testimony; the State and the trial court prevented Emesowum from
calling certain favorable witnesses; the trial court improperly denied a motion for
mistrial; the trial court erroneously denied several motions to strike various
venirepersons during voir dire; and the State knowingly conspired to introduce
fabricated testimony.
These issues involve jury selection and trial, and we cannot determine their
merits without a reporter’s record detailing what actually occurred in the
courtroom. It is Emesowum’s burden to request and pay for a reporter’s record.
TEX. R. APP. P. 35.3(b); see Ex Parte McKeand, 454 S.W.3d 52, 53 (Tex. App.—
Houston [1st Dist.] 2014, no pet.). Because he has failed to do so, we overrule
these issues.
Finally, Emesowum raises several additional issues in his reply brief,
including a challenge to the trial court’s finding that he is not indigent. “Generally,
an appellant must raise an issue in [his] principal brief to have it reviewed on
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appeal.” Wilson v. State, No. 01-11-01125-CR, 2015 WL 1501812, at *9 (Tex.
App.—Houston [1st Dist.] Mar. 31, 2015, pet. filed) (mem. op., not designated for
publication) (citing TEX. R. APP. P. 38.3; Barrios v. State, 27 S.W.3d 313, 322
(Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)).
Accordingly, we overrule any new issues presented in the reply brief.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Justices Jennings, Bland, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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