Before QUINN and REAVIS and CAMPBELL, JJ.
Appellant Catherine Mendoza, a/k/a Catherine Mendoza Menzinni, filed a pro se notice of appeal with this court on December 7, 2003, appealing a judgment terminating her parental rights. In her notice of appeal, she indicated that she was indigent. We abated the appeal and remanded the cause so the trial court could determine if Ms. Mendoza was indigent and entitled to representation by counsel in her appeal. Tex. Fam. Code Ann. § 263.405(e) (Vernon 2002).
The trial court held an evidentiary hearing on April 4, 2004, and determined that appellant is not indigent. As a result, the clerk of this court notified appellant by letter on June 3, 2004, that she was not entitled to proceed as an indigent and ordered her to pay the appellate filing fee by July 2, 2004. See Tex. R. App. P. 5. Appellant was also notified that failure to pay the filing fee could result in dismissal. See Tex. R. App. P. 42.3. That date has passed and no response has been received.
All parties have had more than ten days notice that dismissal could result from appellant's failure to comply with the rules and this court's orders. Tex. R. App. P. 42.3(c). Consequently, the appeal is dismissed.
James T. Campbell
Justice
diately before trial began and the trial court denied the motion without explaining why, appellant did not object to the lack of an explanation. This alone warrants rejection of his issue for one must preserve his complaint about supposed error through a timely or contemporaneous objection or request. Tex. R. App. P. 33.1(a). Appellant having failed to object to the omission or request that the trial court make findings, the issue was not preserved.
Yet, even if appellant preserved his complaint, we nonetheless would remain obligated to reject it. This is so for several reasons. First, noticeably absent from the wording of §3.04 of the Penal Code is any requirement that the trial court inform the litigants why it opted to grant or deny a motion to sever under §3.04(c). Given that it is the function of the legislature to create law, not the courts, we hesitate to write into §3.04 that which the legislature omitted.
Furthermore, we note the similarity between the test mandated by §3.04(c) and that of Texas Rule of Evidence 403. The latter also deals with the issue of unfair prejudice, but in the context of admitting evidence at trial. And, if the court finds that the admission of a particular bit of evidence would, among other things, "unfairly prejudice" a litigant, it may exclude the item. Tex. R. Evid. 403. Moreover, in determining whether such prejudice exists, the trial court must undertake a balancing test; that is, it must balance the probative value of the evidence against its potential for unfair prejudice. Yet, no independent hearing need be convened for it to fulfill the duty. Patino v. State, No. 03-0131-CR, 2005 Tex. App. Lexis 3934 at 5-6 (Tex. App.-Amarillo May 19, 2005, no pet.); Franco v. State, 25 S.W.3d 26, 28 (Tex. App.-El Paso 2000, pet. ref'd). Nor must it illustrate, of record, that it undertook the requisite balancing. Patino v. State, 2005 Tex. App. Lexis 3934 at 5-6; Parmer v. State, 38 S.W.3d 661, 670 (Tex. App.-Austin 2001, pet. ref'd). Indeed, by the trial court considering and overruling the objection, it can be said that it necessarily engaged in the requisite balancing. Patino v. State, 2005 Tex. App. Lexis 3934 at 5-6; Parmer v. State, 38 S.W.3d at 670.
To the extent that the Court of Criminal Appeals has set up a mechanism by which a trial court must analyze the potential for unfair prejudice under one circumstance, there seems little reason to implement a different mechanism when the same test (i.e. unfair prejudice) is involved under another circumstance. Simply put, we see no reason to reinvent the wheel. So, to the extent that §3.04(c) of the Penal Code obligates the trial court to assess the potential for unfair prejudice, we hold that it may utilize the analytical mechanism applied when facing a Rule 403 objection. That is, it need not illustrate, of record, how it undertook the requisite analysis. Nor must it specify the indicia or evidence it considered during its analysis. And, unless the record affirmatively shows otherwise, we may presume that by acting upon the request, it performed the duties imposed by §3.04(c), and the record does not so illustrate here.
Thus, we overrule appellant's sole issue and affirm the judgment.
Brian Quinn
Chief Justice
Publish.
1. We note the absence from appellant's brief of argument purporting to illustrate that he suffered any prejudice, much less unfair prejudice.