Benedict Chinonso Emesowum v. State

Opinion issued July 28, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00116-CR
———————————
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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