Phyllis Rich v. Jack Seeley

Phyllis Rich v. Jack Seeley

IN THE

TENTH COURT OF APPEALS

No. 10-01-056-CV

     PHYLLIS RICH,

                                                                              Appellant

     v.

     JACK SEELEY,

                                                                              Appellee

From the 82nd District Court

Falls County, Texas

Trial Court # 33,392-D

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Phyllis Rich filed suit against Jack Seeley seeking a divorce from the parties’ alleged common-law marriage. Following a bench trial, the court rendered judgment that the parties did not have a common-law marriage. Rich appeals.

      Rich timely filed a notice of appeal. The clerk’s record was filed in this Court on March 8, 2001, and the reporter’s record was filed on May 7. Rich filed one motion for an extension of time to file her brief, which we granted on June 13. Following this extension, Rich’s brief was due on June 25. To date, no appellant’s brief has been filed. See Tex. R. App. P. 38.6(a).

      Appellate Rule 38.8(a)(1) provides that if an appellant fails to timely file her brief, the Court may:

dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant’s failure to timely file a brief.

Id. 38.8(a)(1).

      More than thirty days have passed since Rich’s brief was due. We notified her of this defect by letter dated September 17, 2001. Id. 42.3, 44.3. She has not responded to our letter showing grounds for continuing the appeal, nor has she provided a reasonable explanation for failing to file a brief. Id. 42.3, 38.8(a)(1). Therefore, this appeal is dismissed for want of prosecution. Id. 38.8(a)(1).

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed for want of prosecution

Opinion delivered and filed January 16, 2002

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[CV06]

e cocaine.  The baggy was still wet with saliva and had mud on it.  Richardson said that the baggy was not his, but Richardson was arrested on the prior warrants and possession of cocaine.  A chemist for the Department of Public Safety Crime Laboratory in Garland testified that the substance in the baggy contained cocaine, and the contents weighed 0.02 grams.

            Lola Richardson testified that there had been a family get-together at her home earlier in the evening, but later that night, she and Richardson had a heated argument.  Richardson wanted to come inside the house, but she did not want him to come in, and he began banging on the window.  She called 9-1-1 and told the dispatcher that she and Richardson were having an argument and that she needed someone to come get him.

            When the police arrived, they talked to Richardson and then came to her front door.  Two police officers came into her living room to talk to her while Richardson was outside.  She told the officers that she and Richardson were having an argument, that he had been drinking, and that she wanted him to leave.  She did not tell them that Richardson was high on cocaine.  When the officers went back outside, she went to the window and saw Richardson handcuffed and leaning over the truck.  She watched until they put Richardson in the car and drove off.  She never saw Richardson drop or spit anything.

            Richardson testified that he and Lola had gotten into an argument and that she went inside and locked the door.  When the police arrived, he was sitting in his truck.  He told the officer that he and Lola were having an argument and that he was going to stay out in the truck.  The officer then went to talk to Lola.  He did not tell Richardson to do anything.  While the officer talked to Lola, Richardson got back into his truck where he was drinking a beer.

            Richardson further testified that after talking to Lola, the officer called in to see if Richardson was wanted.  Richardson was wanted for a hot check and a ticket.  The officer handcuffed Richardson before the warrants were confirmed.  While handcuffed, Richardson noticed that the officer had a flashlight pointed on the ground on a crack pipe.  Richardson stated that the officer claimed that it was Richardson’s, but it was not.  The officer who was standing four or five feet away from Richardson then looked next to his own foot and picked up a little baggy and said “we got him now.”  Richardson stated that the only way the baggy could have gotten there is by the officer putting it there; he never spit anything out.  Richardson claimed that the officer set him up because they were tired of him.

            A person commits an offense if he knowingly or intentionally possesses less than one gram of cocaine.  See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (b) (Vernon 2010).  Richardson argues that the evidence is insufficient to support his conviction because “Wilder’s version of events is not logical or reasonable.”  Richardson points to Lola’s testimony that Wilder went inside the house to speak with her.  He argues that if he had had cocaine and a crack pipe, he would have disposed of them during this time when he was left unsupervised.  Richardson also relies on his own testimony that Wilder planted the drugs so that he could arrest Richardson and remove him from the premises.  However, by finding Richardson guilty, the jury obviously believed Wilder’s version of events and disbelieved Richardson’s.

The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony.  Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981)).  A jury may believe all, some, or none of any witness’s testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  As the reviewing court, we “should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.”  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); see also Sharp, 707 S.W.2d at 614.  We must defer to the jury’s determination concerning what weight to give any contradictory testimonial evidence.  See, e.g., In re A.B., 133 S.W.3d 869, 873-74 (Tex. App.—Dallas 2004, no pet.); Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex. App.—San Antonio 1997, no pet.); Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d).

Viewing all the evidence in the light most favorable to the verdict, we thus conclude that a rational trier of fact could have found Richardson guilty of the offense of possession of a controlled substance beyond a reasonable doubt.  We overrule Richardson’s issues and affirm the trial court’s judgment.

 

REX D. DAVIS

Justice

 

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed June 29, 2011

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[CR25]

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[1] Lola Richardson later testified that she and Richardson had actually divorced in May 2008.