Antone Richie v. State ( 2002 )

RICHIE V STATE NO. 07-01-0434-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 21, 2002 ______________________________

ANTONE RICHIE

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 180^th DISTRICT COURT OF HARRIS COUNTY;

NO. 857,643; HON. LARRY FULLER, PRESIDING _______________________________

ABATEMENT AND REMAND _______________________________

Before BOYD, C.J. QUINN, and REAVIS, JJ

Antone Richie appealed, on May 24, 2001, his conviction for delivery of a controlled substance. Eventually, the clerk's record was filed October 17, 2001 and the reporter's record on November 27, 2001. These circumstances, when applied to the pertinent rule of appellate procedure, required that appellant file his brief by December 27, 2001. He did not. On January 9, 2002, we informed appellant, by letter, of the December 27^th deadline and directed him to explain why he did not comply with same. So too did we inform him that the cause would be abated pursuant to Texas Rule of Appellate Procedure 38.8(b) if such a response was not forthcoming within ten days. The response received consisted of a motion to extend the deadline. Same was granted, and the deadline was extended to February 13, 2002. Like its predecessor, that date also lapsed without appellant complying with same or otherwise contacting the court and explaining why his brief had not been filed.

Consequently, we abate this appeal and remand the cause to the 180th District Court of Harris County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be served upon the parties and, thereafter, conduct a hearing to determine the following:

1. whether appellant desires to prosecute the appeal;

2. whether appellant is indigent; and,

• whether appellant has been denied the effective assistance of counsel due to counsel's failure to timely file a brief. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed. 2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief).

The trial court is further ordered to execute findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue this appeal, is indigent, and was denied effective assistance of counsel, then we also direct it to appoint new counsel to assist appellant in the prosecution of the appeal. The name, address, phone number, telefax number, and state bar number of the new counsel appointed to represent appellant must also be included in the court's findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk's record containing the findings of fact and conclusions of law, and 2) a reporter's record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's record and reporter's record to be filed with the clerk of this court on or before March 25, 2002. Should additional time be needed to perform these tasks, the trial court may request same on or before March 25, 2002.

It is so ordered.

Per Curiam

Do not publish.

t relevant under Texas Rule of Evidence 402. ⁽¹⁾ Further, if the evidence was relevant it was inadmissible under Rule 404(b). Rule 404(b) states that:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show the person acted in conformity therewith . . . .

Appellant posits that the evidence regarding the use and sale of marijuana served no other purpose than to show that appellant was a bad person. Accordingly, it was not admissible and the admission was harmful.

However, appellant's discussion of this evidentiary issue does not include the admissibility of this evidence pursuant to article 38.37 of the Texas Code of Criminal Procedure. This statute applies to prosecutions for sexual offenses committed against children under 17 years of age. See Tex. Code Crim. Proc. Ann. art. 38.37 § 1 (Vernon Supp. 2006). The statute also provides that,

Not withstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including;

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann. art 38.37 § 2 (Vernon Supp. 2006).

Given the statutory language, the evidence of the use and sale of marijuana was relevant and admissible to demonstrate the attempt by appellant to cultivate a relationship with the minor. As such, this evidence goes directly to the state of mind of appellant and the minor. See O'Canas v. State, 140 S.W.3d 695, 698 (Tex.App.-Dallas 2003, pet. ref'd.); McCoy v. State, 10 S.W.3d 50, 54 (Tex.App.-Amarillo 1999, no pet.).

However, the appellant further alleges that, even if the evidence is relevant and admissible, the trial court committed further error by allowing the jury to hear the testimony in the face of a Rule 403 objection about the prejudicial effect of that evidence. Under appellant's theory, the admission of the evidence was harmful because the sole result of the admission was to make him out as a drug dealer without adding anything probative to the trial.

For purposes of appellant's contention, the applicable portion of Rule 403 provides that relevant evidence may still be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. In making a Rule 403 determination of probative value and unfair prejudice, there are four areas of inquiry: (1) how compelling the extraneous offense evidence serves to make a fact of consequence more or less probable - a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way"; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent's need for this evidence to prove a fact of consequence, that is, does the proponent have other evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000). After this determination, a reviewing court should only reverse in cases of a clear abuse of discretion. Id.

The evidence complained of went to show the relationship that existed between M.A.F. and appellant prior to the sexual assault. It tended to demonstrate the attempts of appellant to "groom" M.A.F. for the assault. See generally Hernandez v. State, 973 S.W.2d 787, 790 (Tex.App.-Austin 1998, pet. ref'd). The proof of the extraneous offense, through the testimony of M.A.F., was relatively clear and definitive about the facts of the offense. It took only a few moments of M.A.F.'s testimony to present the evidence and it was in fact presented as part of the chronological order of events. Accordingly, there was little chance that this evidence distracted the jury from the consideration of the indicted offense. It is true that possession and distribution of marijuana carry with it some emotional baggage; however, it is not such as will impress the jury in some irrational manner, more so when the manner of presentation of the evidence is considered. The State's need for the evidence might be considered slight, especially in light of appellant's confession, however, the State is entitled to present the surrounding facts and circumstances of the indicted offense. This was the only evidence at the State's disposal to show the previous relationship between the victim and appellant or to shed light on the state of mind of appellant. See Tex. Code Crim. Proc. Ann. art. 38.37 § 1 (Vernon Supp. 2006). Accordingly, we hold that the admission of the extraneous offense evidence was not a clear abuse of discretion and appellant's contention is overruled. ⁽²⁾

Previous Imprisonment

Appellant next contends that the trial court erred when it allowed his statement to be published to the jury without redacting the following phrase, "since I got out of prison." Appellant's trial objection was pursuant to Rule 403. However, appellant's brief only refers to Rule 403 in stating what the trial objection was. There are no citations to authority and no analysis upon which we are to base our decision on this matter, save a very conclusory statement. Appellant has failed to brief this issue in conformity with the rules of appellate procedure. Tex. R. App. P. 38.1(h). Accordingly, he has failed to present anything for review. See Tufele v. State, 130 S.W.3d 267, 271 (Tex.App.-Houston [14^th Dist.] 2004, no pet. h.).

Conclusion

Having overruled appellant's contentions, we affirm the judgment of the trial court.

Mackey K. Hancock

Justice

Do not publish.

1. Further citation to Texas Rule of Evidence will be by "Rule ___".

2. We note that even if the court erred in admitting this evidence, the error was not one that, in light of the entire record, had a substantial and injurious effect or influence in determining the jury's verdict. Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).