Vinton Derrick Cummings v. State ( 2010 )

                                                            NO. 07-10-0014-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                     PANEL D

                                                                 APRIL 7, 2010

                                            ______________________________

                                                 VINTON DERRICK CUMMINGS,

Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

Appellee

                                         _________________________________

         FROM THE CRIMINAL DISTRICT COURT NO. ONE OF TARRANT COUNTY;

                             NO. 1132330D; HON. SHAREN WILSON, PRESIDING

                                           _______________________________

                                                                       ORDER

                                           _______________________________

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

            Vinton Derrick Cummings, appellant, appeals a conviction for the offense of murder and a sentence of forty years in the Institutional Division of TDCJ. Appellant timely perfected this appeal by filing notice of appeal on December 2, 2009.  The clerk’s record was filed on January 13, 2010.  The reporter’s record was due on January 11, 2010. On January 20, 2010, this Court directed the court reporter to advise the Court on the status of the record, and in response, the reporter filed a motion for an extension to file the record, which was granted to March 15, 2010.  Subsequently, this Court received a fax and phone calls from the reporter, advising that the record could be filed no later than April 2, 2010.  She stated that “although the record will most likely be filed by Tuesday, March 30, I want to ensure that I will not need to request additional time to file the record.”  To date, no reporter’s record has been received by the Court.

We therefore order Valerie K. Allen, the court reporter for the Criminal District Court No. One of Tarrant County, to prepare and file a reporter’s record in this cause on behalf of Vinton Derrick Cummings, in compliance with the Texas Rules of Appellate Procedure.  The reporter’s record will consist of a transcription of all the hearings, evidentiary or otherwise, and the trial held in this cause no. 1132330-D.  Ms. Allen is further ordered to file said reporter’s record with the clerk of this Court at 501 S. Fillmore, Suite 2-A, Amarillo, Texas, in a manner assuring that it will be personally received by said clerk on or before 5:00 p.m. on April 21, 2010.  Failure to comply with this directive will result in a hearing directing Ms. Allen to show cause why she should not be held in contempt.

                                                                                    Per Curiam

Do not publish.

clusion that Mendoza was contemplating additional criminal mischief or any other criminal activity. The evidence to which appellant points does not make a prima face case for defense of property. See Hudson v. State, 145 S.W.3d 323, 325 (Tex.App.–Fort Worth 2004, pet. ref’d) (when there is no evidence of a belief that force is needed to defend property, a criminal defendant is not entitled to a jury instruction on defense of property); Hernandez v. State, 914 S.W.2d 218, 224 (Tex.App.–El Paso 1996, pet. ref’d) (appellant not entitled to an instruction on defense of property because there was no evidence of imminent criminal mischief as the drive-by shooting of appellant’s home had already been completed prior to utilization of deadly force). We overrule appellant’s second issue.

Issue Three--Exclusion of Evidence of Mendoza’s Character and

Circumstances of Relationship

          In appellant’s last issue, he contends that the trial court harmfully erred by excluding relevant evidence relating to Mendoza’s violent tendencies and the circumstances of the relationship between Mendoza and appellant. The trial court, however, permitted the testimony of a number of defense witnesses regarding the relationship between the parties. We find the excluded evidence related only to self-defense and defense of property. Given our disposition of appellant’s first two issues, it follows the trial court properly excluded this evidence. We overrule appellant’s third issue.

          Having overruled each of appellant’s three issues, we affirm the judgment of the trial court.

James T. Campbell

Justice

Do not publish.