Roger Guy Russell, Jr. v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00190-CR

Roger Guy Russell,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 03-01884-CRF-361

ABATEMENT ORDER

          The State has filed a motion to abate this appeal to the trial court for entry of written findings of fact and conclusions of law in compliance with article 38.22, section 6 of the Code of Criminal Procedure. The motion is granted.  See Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004).

            The trial court shall, within thirty days after the date of this Order: (1) make appropriate findings of fact and conclusions of law; and (2) deliver those findings of fact and conclusions of law to the trial court clerk.

          The trial court clerk shall: (1) prepare a supplemental clerk’s record containing the findings of fact and conclusions of law which the trial court renders or makes; and (2) file a supplemental clerk’s record containing those findings and conclusions with the Clerk of this Court within forty-five days after the date of this Order.

          The Appellant’s brief has already been filed.  The Appellant will have twenty-one days after the date the supplemental clerk’s record is filed to file an amended or supplemental brief.  The State’s brief will be due thirty days after the Appellant files his amended or supplemental brief.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal abated

Order issued and filed January 4, 2006

Do not publish

jury on the law of parties. An instruction on the law of parties is only required when the defendant, if guilty, is guilty only as a party and not as a primary actor. Rasmussen v. State, 608 S.W.2d 205, 210 (Tex. Crim. App. [Panel Op.] 1980) (on rehearing). Appellant admitted in his confession that he reached into the boat and removed a lifejacket. Under these facts, Appellant could have been convicted as a primary actor of the offense charged, and an instruction on the law of parties was not required. See id. Furthermore, he waived any error when he failed to object or request the instruction. See Bowers v. State, 570 S.W.2d 929, 931 (Tex. Crim. App. [Panel Op.] 1978).

Point three is overruled. The judgment is affirmed.

                     BOB L. THOMAS

DO NOT PUBLISHChief Justice