NO. 07-03-0087-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 14, 2003
______________________________
ELIAS A. MARTINEZ, APPELLANT
V.
FIDELIS C. ABIGIDE AND WILLIE BROOKS, APPELLEES
_________________________________
FROM THE 242nd DISTRICT COURT OF HALE COUNTY;
NO. B30451-9907; HONORABLE EDWARD SELF, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
On February 11, 2003, a copy of a Notice of Appeal from a Judgment in Cause No. 30451-9907 in the 242nd District Court of Hale County, was filed with the clerk of this court. The Judgment was signed on November 20, 2000, and the notice of appeal was filed with the trial court clerk on December 1, 2000.
On February 19, 2003, the trial court clerk's record was filed with the clerk of this court, who notified appellant that his brief was due March 21, 2003. Appellant responded with a letter requesting more time, and we extended the due date for his brief to April 21, 2003.
By letter dated July 10, 2003, appellant was advised that neither appellant's brief nor a motion to extend time for filing the brief had been filed and that unless a response reasonably explaining the failure to file the brief and a showing that appellee had not been significantly injured by such failure was received by July 23, 2003, the appeal would be subject to dismissal. Appellant filed a Request for Extension of Time on July 22, 2003 indicating that he would be unable to file the brief by July 23, 2003 and that he has been unable to employ an attorney to represent him. Appellant's request does not adequately respond to our July 10 letter.
We must expect litigants who represent themselves to comply with the applicable rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Greenstreet v. Heiskell, 940 S.W.2d 831, 834-35 (Tex.App.-Amarillo 1997, no writ). Appellant has been provided ample opportunity to pursue appeal of the judgment against him. Accordingly, this appeal is dismissed for want of prosecution. Tex. R. App. P. 38.8(a)(1). Costs are taxed to appellant. Tex. R. App. P. 43.4.
Per Curiam
In his second and third issues, appellant contends that the State should not have been allowed to argue that 1) "[o]n August 16, 2003, but for the law enforcement agent, a 13 year old girl would have been sexually assaulted . . . [i]t is as easy as that" and 2) appellant "scoured the internet, entered a 13 through 17 year old chat room and met this girl for one reason." The former was improper since "[n]othing in the record even remotely suggests that a thirteen year old girl would have been sexually assaulted . . . had appellant not been arrested," according to appellant. The latter was allegedly improper because it suggested that a "'real girl'" was involved, as opposed to a male undercover police officer. In other words, the prosecutor misstated the facts of record. We overrule the issues.
As to the first utterance, the statement was used by the prosecutor to end her description of the actions undertaken by appellant in preparing to have sex with someone appellant believed to be a 13-year-old girl. And, when seen in context, it connotes that given the evidence of appellant's belief, intent, or goal, and conduct in pursuit of that intent, he would have engaged in sex with a 13-year-old female had the object of his intent been such a girl rather than an undercover officer. See Chen v. State, 42 S.W.3d 926, 930 (Tex. Crim. App. 2001) (stating that if the officer had been a 13-year-old girl, what the defendant intended to accomplish would have been an actual crime). So viewed, the comment can be interpreted as a reasonable deduction from the evidence, and a proper mode of argument. Wesbrook v. State, supra.
Regarding the second utterance, the context of the statement is again of import. Through it, the prosecutor endeavored to explain how he met and what appellant intended to do with someone he believed to be a 13-year-old girl. Furthermore, nothing was said by the State of the "girl" being "real" as alleged by appellant. Indeed, the record is replete with evidence illustrating that the "girl" to which the State referred was "Carrie," the fictitious child played by the undercover officer. Given this, the statement also can be interpreted as a summation or characterization of the evidence actually before the factfinder, and a proper mode of argument.
Accordingly, the judgments of the trial court are affirmed.
Brian Quinn
Chief Justice
Do not publish.