IN THE
TENTH COURT OF APPEALS
No. 10-95-046-CV
     ROOSEVELT BEASLEY, ET AL.,
                                                                                              Appellants
     v.
     WARDEN JAY T. MORGAN, ET AL.,
                                                                                              Appellees
From the 87th District Court
Freestone County, Texas
Trial Court # 95-046-B
                                                                                                   Â
MEMORANDUM OPINION
                                                                                                   Â
      Roosevelt Beasley, et al. appealed from the court's dismissal of their in forma pauperis petition. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (Vernon Supp. 1995). Beasley filed a notice of appeal on March 2, 1995, and the transcript was filed in this court on March 6. Although his brief was due on April 5, no appellant's brief has been filed. See Tex. R. App. P. 74(k). Appellate Rule 74(l)(1) provides:
Civil Cases. In civil cases, when the appellant has failed to file his brief in the time prescribed, the appellate court may dismiss the appeal for want of prosecution, unless reasonable explanation is shown for such failure and that appellee has not suffered material injury thereby. The court may, however, decline to dismiss the appeal, whereupon it shall give such direction to the cause as it may deem proper.
Id. 74(l)(1).
      More than thirty days have passed since Beasley's brief was due. We notified him of this defect by letter on May 4. See id. 60(a)(2), 83. He has not responded to our letter showing grounds for continuing the appeal, nor has he provided a reasonable explanation for failing to file a brief. Therefore, this appeal is dismissed for want of prosecution. See id. 74(l)(1).
                                                                               PER CURIAM
Before Chief Justice Thomas,
      Justice Cummings, and
      Justice Vance
Dismissed for want of prosecution
Opinion delivered and filed May 17, 1995
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n the telephone from 9:20 a.m. to 9:34 a.m. She testified that Sandoval called from his motherÂs landline, not a cellular telephone. She knew this because she saw the number on her caller ID, Sandoval had previously called from that number, and she checked the number on 411.com, which listed the number as a landline.
The State requested fifteen minutes to investigate the status of this telephone number.  Investigator Don Marshall contacted Southwestern Bell security and learned that the number had been assigned to a T-Mobile cellular telephone since September 2004. He did not inquire as to the owner of the number or whether the number was assigned to a cellular telephone on the day of the robbery.
USE OF FALSE TESTIMONY
Arguing that MarshallÂs testimony was false or misleading, Sandoval contends in his first two issues that: (1) the State knowingly used false testimony in violation of his due process rights provided by the Fourteenth Amendment to the United States Constitution; and (2) the State negligently used false testimony in violation of his due course of law rights provided by article I, section 19 of the Texas Constitution.
            A defendant must object to the StateÂs use of allegedly false evidence to preserve the complaint for appeal.  Davis v. State, No. 10-06-00009-CR, 2008 Tex. App. LEXIS 7146, at *18-19 (Tex. App.ÂWaco Sept. 24, 2008, no pet. h.) (citing Haliburton v. State, 80 S.W.3d 309, 315 (Tex. App.ÂFort Worth 2002, no pet.)); see Tex. R. App. P. 33.1.  At the time of MarshallÂs testimony that the number was assigned to a cellular telephone, Sandoval was aware of contrary information suggesting that the number was assigned to a landline. He could have objected to MarshallÂs testimony at trial, but failed to do so. His first and second issues are not preserved for appellate review.
MOTION FOR NEW TRIAL
In his third issue, Sandoval challenges the denial of his motion for new trial on grounds that the State used false or misleading evidence to negate his alibi defense. We review a trial courtÂs denial of a motion for new trial for abuse of discretion. Benton v. State, 237 S.W.3d 400, 404 (Tex. App.ÂWaco 2007, pet. refÂd) (citing Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001)).
In his motion for new trial, Sandoval argued that he did not receive a fair trial because the State used Âinaccurate hearsay testimonyÂ, i.e., MarshallÂs testimony that the telephone call to Perales was made from a cellular telephone rather than a landline, which Âcompletely destroyed [his] alibi defense.ÂÂ In an affidavit, Guy Cox, SandovalÂs trial attorney, described this testimony as Âinaccurate and potentially misleading.ÂÂ Cox opined that PeralesÂs testimony that Sandoval called her from a landline approximately twenty-six minutes before the robbery, coupled with TommyÂs testimony that he and Sandoval drove around for about an hour before the robbery, made SandovalÂs Âpresence at the robbery very remote.ÂÂ Cox was surprised by MarshallÂs testimony because he had Âreceived information to the contrary and did not believe its veracity was an issue.ÂÂ Also attached to SandovalÂs motion was a computer printout from 411.com listing the number as a landline and telephone book pages showing the number in the residential listings.
Sandoval subsequently filed telephone records from the AT&T custodian of records, which identified the number as a landline at the time of the robbery. Additional AT&T records showed an incoming call to Perales from this number at 8:29 a.m., a three-minute call, and 9:20 a.m., a fourteen-minute call.
At the hearing on SandovalÂs motion, Wanda Mathews, AT&T custodian of records, testified that the number was a landline at the time of the robbery. Mathews testified that cellular telephone numbers are not listed in the residential pages of the telephone book, and Sandoval introduced residential pages from the AT&T telephone book, which listed the number. According to Mathews, the address listed in the telephone book matched the address on AT&TÂs billing records. She further testified that it was possible that the number was assigned to a cellular telephone at some point in the past.
Cox testified that MarshallÂs testimony Âseriously undermined SandovalÂs alibi defense. He had hoped that PeralesÂs testimony establishing that Sandoval was possibly at a different place at a different time than testified to by Tommy would convince the jury to find Sandoval not guilty. On cross-examination, he agreed that the telephone records and books were not new evidence. The State provided Cox with a Google map showing the distance from the house to the mall as 2.9 miles or seven minutes. Cox agreed that a forty-four-minute time period existed between the end of the call to Perales at 9:34 and the 9-1-1 call at 10:18; thus, Sandoval had time to get to the mall even assuming that the number was a landline. However, he did not believe that the 9-1-1 call was the most significant, as Ryall had estimated that the robbery occurred at 9:50.
The prosecutor testified that Ryall did not identify a specific time when the robbery occurred. She believed that the robbery occurred no earlier than 10:05 because Ryall had testified that she was late for work and the mall opens at 10:00. The prosecutor also believed that, assuming the number was assigned to a landline and the robbery occurred sixteen minutes after the call ended, Sandoval still had time to commit the robbery. In fact, she was able to drive the route from SandovalÂs home to the mall in seven minutes and seventeen seconds, after stopping at a major intersection and driving the forty mile-per-hour speed limit.
The prosecutor further testified that, although she had subpoenaed Perales as a punishment witness, she learned about the landline allegation during PeralesÂs testimony. She requested Âfive minutes to investigate this testimony and asked Marshall to contact the telephone company. She was not present when he contacted Southwestern Bell; however, she also testified that the specific digits of the number indicated to her that it was assigned to a cellular telephone, which made sense according to TommyÂs testimony. She would not have put someone on the stand to say that the number was assigned to a cellular telephone when it had not been.
At the conclusion of the hearing, the trial court noted that SandovalÂs mother was Âin the courtroom during the trial when the defense was putting on their evidence.ÂÂ He denied SandovalÂs motion.
Analysis
A defendant is entitled to a new trial based on the StateÂs use of false evidence where: (1) the State Âused the testimony; (2) the testimony was ÂfalseÂ; (3) the testimony was Âknowingly usedÂ; and (4) if these questions are affirmatively answered, there is a reasonable likelihood that the false testimony could have affected the judgment of the jury. Ramirez v. State, 96 S.W.3d 386, 394-95 (Tex. App.ÂAustin 2002, pet. refÂd) (citing Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935); Pyle v. Kansas, 317 U.S. 213, 63 S. Ct. 177, 87 L. Ed. 214 (1942); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)).  A defendant need not show that a witness Âknew the testimony was false or otherwise harbored a sufficient culpable mental state to render the witness subject to prosecution for perjury or that the ÂwitnessÂs specific factual assertions were technically incorrect or Âfalse. Id. at 395. ÂIt is sufficient if the witnessÂs testimony gives the trier of fact a false impression. Id.
Evidence presented at the hearing on SandovalÂs motion for new trial establishes that the number is a landline and that Perales received a telephone call from that number on the morning of the robbery. MarshallÂs testimony to the contrary is false and misleading. The State used this testimony during closing to argue that Sandoval called Perales from a cellular telephone while driving around looking for someone to rob. The State further argued that Sandoval failed to present anything to rebut this fact.Â
The record contains no evidence suggesting that Marshall or the State knew the testimony was inaccurate, or even potentially inaccurate, at the time the testimony was elicited. Nor does the record establish that the State should have known that MarshallÂs testimony was false or misleading. The evidence presented at trial did not conclusively establish that the number was assigned to either a landline or a cellular telephone. Neither the State nor Sandoval provided the jury with documentary evidence confirming their respective positions or sought additional time to do so. Not until the motion for new trial did Sandoval present evidence other than PeralesÂs testimony to establish the number as a landline.
In fact, at the motion for new trial hearing, Mathews testified that the telephone records would have been available at the time of trial. She would have appeared at trial with the records had she received a subpoena. Neither were the telephone book pages new. Sandoval could have procured other evidence supporting his contention that the number was assigned to a landline, but he failed to do so.
Even assuming that the State was aware of or should have been aware of the error and refused to correct it, we cannot say beyond a reasonable doubt that MarshallÂs testimony affected the judgment. During closing argument, the State presented the possibility that, assuming the number was assigned to a landline, the call to Perales ended in time to allow Sandoval to arrive at the mall with sufficient time to commit the robbery. The call to Perales ended at 9:34, travel time to the mall takes five to ten minutes, and the 9-1-1 call came in at 10:18. Moreover, SandovalÂs palm print was found on the passenger side of the vehicle.
Even had the State presented no evidence that the number was assigned to a cellular telephone, the jury could still find Sandoval guilty of robbery by: (1) discounting TommyÂs testimony and determining that Sandoval committed the robbery after ending the conversation with Perales; or (2) accepting TommyÂs testimony and determining that Perales testimony failed to conclusively establish that the number belonged to a landline. As the sole judge of the weight and credibility of witness testimony, the jury was entitled to resolve any inconsistencies in the witnessÂs testimony and decide which evidence to believe.[1]  See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
In summary, we cannot say that the trial court abused its discretion by denying SandovalÂs motion for new trial. We overrule issue three.
The judgment is affirmed.
Â
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed November 5, 2008
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[CR25]
[1] Sandoval also attempted to show that Tommy was either lying or mistaken when he identified Sandoval as the robber. According to the record, SandovalÂs brother Rocky helped abandon AlanizÂs car and his earnings statement was found in the car. The jury was at least presented with the possibility that Rocky, not Sandoval, committed the robbery.