Theron Belton v. Conagra Poultry Co. ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00344-CV

Theron Belton,

                                                                                    Appellant

 v.

Conagra Poultry Co.,

                                                                                    Appellee

From the 278th District Court

Madison County, Texas

Trial Court No. 9649

MEMORANDUM  Opinion

            Theron Belton attempts to appeal from an order rendered by the trial court almost one year prior to the filing of the notice of appeal.  In a letter by the Clerk of this Court, the Clerk warned Belton that his appeal was subject to dismissal for want of jurisdiction because it appeared the notice of appeal was untimely.  Belton was informed that in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed and that his notice of appeal was filed almost one year after the order complained of was signed.  Tex. R. App. P. 26.1(c).  The Clerk also warned Belton that his appeal may be dismissed unless, within 42 days of the date of the letter, a response is filed showing grounds for continuing the appeal. 

            Forty-two days have passed, and we have not received a response from Belton.  Accordingly, this appeal is dismissed.  Tex. R. App. P. 42.3(a). 

            Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing.  Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998).  See also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 5; Tex. Gov’t Code Ann. § 51.207(b) (Vernon 2005).  Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case.  Tex. R. App. P. 2. 

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal dismissed

Opinion delivered and filed January 9, 2008

[CV06]

story and statements that he was under the influence of drugs and alcohol at the time of the offense. Overall objected that the report contained false information; however, the court did not resolve the alleged inaccuracies in the report. He offered to produce testimony and asked for a continuance, but the judge accepted the report over his objections. He contends that a presentence investigation report can adversely affect a convict during his time in prison and on parole.

      In his first point, Overall contends that the court erred in denying his motion for a new trial because Ms. Edmond failed to disclose during voir dire her personal and business relationship with Mr. Bellah. A juror's relationship with a victim in a criminal case may lead to an improper verdict if that juror is persuaded and forms a biased opinion. See Brandon v. State, 599 S.W.2d 567, 572 (Tex. Crim. App. 1979).

      The first question is whether Overall's attorney had sufficient notice to ask appropriate questions on voir dire concerning potential bias. See Babin v. State, 194 S.W.2d 563, 568 (Tex. Crim. App. 1946) (on rehearing). If so, he is given the opportunity to ask all questions and then utilize challenges for cause and peremptory strikes. See Von January v. State, 576 S.W.2d 43, 45 (Tex. Crim. App. 1978). "When a partial, biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel, who has acted in good faith upon the answers given to him on voir dire not knowing them to be inaccurate, good ground exists for a new trial." Id. However, if there is anything that gives sufficient notice to the defense counsel, or if he fails to exercise diligence, then no such good ground for a new trial exists. Id. In fact, if counsel fails to pursue the matter on voir dire, then the defendant should not later be allowed to claim error. Drousche v. State, 651 S.W.2d 883, 890 (Tex. App.—Austin 1983, pet. ref'd). "If appellant desired to know the extent of that acquaintance, he should have inquired of the juror." Babin, 194 S.W.2d at 568.

      The second concern is whether, even when a defendant is deprived of the right to challenge a juror, the information withheld is material. Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978). The Texas Court of Criminal Appeals in Salazar stated: "We do not hold that an appellant is entitled to a reversal of his conviction in any case in which he discovers that a juror withheld information during voir dire. Where the information is not material and the juror can state that it will not affect his deliberation or verdict, an appellant may be unable to show harm." Id. at n.5.

      Though Overall cites Von January as allowing a new trial because of a biased juror, the case is readily distinguishable. See Von January, 576 S.W.2d at 43. In that case, the potential juror failed to answer a question posed by defense counsel asking if any prospective jurors knew members of the victim's family. Here, Ms. Edmond was never asked any question that she failed to answer. The most critical distinction, however, is that questions during voir dire were sufficient to put Overall on notice that Ms. Edmond possibly harbored a potential bias. Ms. Edmond was explicitly asked and clearly answered questions concerning any relationship with Mr. Bellah. She indicated her relationship with the victim by raising her hand. Because Overall had notice, an exercise of diligence would include inquiring further about the relationship during voir dire.

      Because there was sufficient notice in this case, we do not need to address the question of materiality. We overrule the first point.

      In his second and third points, Overall claims that the court erred in overruling his objections to the presentence report and in not resolving allegations of factual inaccuracies in the presentence report. "The court shall allow the defendant or his attorney to comment on the report and, with the approval of the court, introduce testimony or other information alleging a factual inaccuracy in the report." Tex. Code Crim. Proc. Ann. art. 42.12 § 9(e)(Vernon Supp. 1993). The trial court did allow Overall to comment on the report and place objections to the report in the record. Because it is within the court's discretion to allow introduction of testimony alleging a factual inaccuracy, the court did not abuse its discretion by not receiving evidence and not resolving alleged factual inaccuracies. See id.

      Under Article 42.18, section 8(e), of the Texas Code of Criminal Procedure, the pardons and paroles division shall secure all pertinent information relating to a prisoner. Id. at art. 42.18 § 8(e). The objections to the presentence investigation report noted in the record are forwarded to the pardons and paroles division of the Texas Department of Criminal Justice. Id. Overall's counsel can forward his written comments to them as well. The court's failure to resolve the alleged factual inaccuracies in the presentence report is not error. Points two and three are overruled.

      We affirm the judgment.

                                                                                     BOB L. THOMAS

                                                                                     Chief Justice

Before Chief Justice Thomas,

      Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 10, 1993

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