IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 23, 2005
______________________________
RICK MARION HUBBARD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 45,667-B; HONORABLE JOHN B. BOARD, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONFollowing a plea of not guilty, appellant Rick Marion Hubbard was convicted of engaging in organized criminal activity, and on January 12, 2005, punishment was assessed at 18 months confinement. Appellant timely filed a motion for new trial; his notice of appeal was filed on April 18, 2005. We dismiss for want of jurisdiction.
When a timely motion for new trial is filed, a notice of appeal is due to be filed with the trial court clerk within 90 days after the day sentence is imposed. See Tex. R. App. P. 26.2(a)(2). The deadline may be extended if, within 15 days, the party files the notice and a motion complying with Rule 10.5(b)(2) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 26.3. When a notice of appeal, but no motion for extension of time is filed within the 15-day window, this Court does not have jurisdiction to dispose of the appeal in any manner other than by dismissal for want of jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Cr.App. 1996) (en banc). See also Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Cr.App. 1998). Additionally, we do not have authority to invoke Rule 2 of the Texas Rules of Appellate Procedure in an effort to obtain jurisdiction of the case. Thus, we cannot create jurisdiction where none exists. Slaton, 981 S.W.2d at 210.
Appellant's sentence was imposed on January 12, 2005, and following his timely motion for new trial, the deadline in which to file his notice of appeal, including the 15-day window, was extended to April 27, 2005. Although his notice filed on April 18, fell within the 15-day extension period, it was not accompanied by a motion for extension of time.
Accordingly, the purported appeal is dismissed for want of jurisdiction. (1)
Don H. Reavis
Justice
Do not publish.
1. Appellant may have recourse by filing a post-conviction writ of habeas corpus returnable to the Court of Criminal Appeals for consideration of an out-of-time appeal. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004-05).
(Tex.Crim.App. 2003).
The parties agree we must review the trial court's ruling for abuse of discretion. See Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id. To evaluate appellant's contention the trial court abused its discretion in its application of the balancing test required for a ruling on a Rule 403 objection, we apply the factors discussed in Montgomery, 810 S.W.2d at 389-90, and listed in Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000). Appellant contends that all the listed factors, with the "possible exception" of the time it took to develop the evidence, weigh against admissibility of evidence of the other incidents of sexual intercourse. We disagree.
Appellant's case was presented through cross-examination of the State's witnesses, and focused on contesting the credibility of the victim and her friends. During cross-examination of the State's first witness, Brownfield police officer Clint Jackstas, for example, defense counsel adduced testimony that the victim was in police custody and was "in trouble" when she first told her mother and the officer of her sexual relationship with appellant. (2) Such testimony would suggest to the jury that the victim's statements against appellant were fabrications, intended to divert attention from her own troubles with law enforcement authorities. That theory is easier to argue if the jury heard evidence only of a one-time sexual encounter between appellant and the victim than if the jury is made aware of multiple acts of sexual intercourse between them. Consistent with the statutory provision that such evidence is admitted for its bearing on the relationship between appellant and the victim, the evidence that appellant engaged in sexual intercourse with the victim more than once thus serves to counter his attack on her credibility. Considered in light of appellant's defensive strategy, the evidence has significant probative value. See Wyatt, 23 S.W.3d at 26 (one factor in balancing test is degree to which extraneous offense evidence serves to make a fact of consequence more or less probable).
Appellant argues the evidence he committed the extraneous offenses was weaker than the evidence of the tried offense. We agree the references in testimony to the "Tahoka Road" incident lacked important details, but the victim testified she and appellant "had sex again" in the Budget Inn room. Her testimony was supported, to a degree at least, by her friend's statement that the victim and appellant were in bed together in the room. The extraneous offense testimony was not so weak as to require its exclusion. See id.
We do not agree with appellant that the evidence of the extraneous acts of sexual intercourse had significant potential to impress the jury "in some irrational but nevertheless indelible way." Wyatt, 23 S.W.3d at 26. He is unable to identify any specific way in which the evidence may have improperly impressed the jury. See Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App. 2006) (discussing possible bases for unfair prejudice). The trial court's limiting instruction minimized the risk of such irrational impressions. See Smith v. State, 211 S.W.3d 476, 480 (Tex.App.-Amarillo 2006, no pet.) (noting that consequence of limiting instruction). By the victim's testimony, the extraneous acts of intercourse differed from the tried offense only in their locations and dates. Her terse descriptions of the acts varied little.
As appellant's brief notes, the evidence of the extraneous offenses generally was presented along with that of the tried offense. The time the State devoted to the extraneous offenses is not a significant factor in the Rule 403 balancing test in this case, nor do we think there was a significant risk here of distracting the jury from consideration of the offense being tried. Wyatt, 23 S.W.3d at 26.
Appellant lastly argues the State had little need for the extraneous offense evidence. Again, we disagree. As noted, in our view, the trial court reasonably could have determined appellant's challenge to the victim's credibility supported the State's need for the evidence of their multiple sexual encounters. See Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon 2005) (making such evidence admissible to show relationship between defendant and the child).
Finding the record fails to show the trial court abused its discretion by admitting the extraneous offense evidence, we overrule appellant's first issue. Disposition of this issue obviates the need to address his second issue. We affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
1. Subsequent discussion shows the State relied on article 38.37 of the Code of Criminal Procedure allowing admission of other crimes by a defendant against the same child victim in certain classes of cases, including sexual assault. Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon 2005). The statute makes the evidence admissible to show the state of mind of the defendant and the child and their previous and subsequent relationship, "[n]otwithstanding rules of evidence 404 and 405."
2. Jackstas testified he placed the runaway victim in handcuffs to impress upon her "the fact she was in trouble."