NO. 07-10-00152-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 15, 2011
KANAYO EUGENE UBESIE, JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT OF NAVARRO COUNTY;
NO. 61,354; HONORABLE JOHN JACKSON, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER OF ABATEMENT AND REMAND
Appellant, Kanayo Eugene Ubesie, Jr., filed a notice of appeal from his conviction for driving while intoxicated, and sentence of 180 days incarceration in the Navarro County Jail and $1,000 fine. Sentence was suspended by the trial court and appellant was placed on community supervision for a period of two years. The appellate court clerk received and filed the trial court clerk=s record on April 30, 2010. The official court reporter’s record was filed on June 7. Consequently, appellant’s brief was due on July 8. On July 7, this Court received appellant’s request for extension of time to file his brief, which was granted to extend the deadline for appellant’s brief to August 6. On August 16, appellant filed a second request for extension of time to file his brief. Again, this request was granted and the deadline for appellant’s brief was set on September 7. Just before the September 7 deadline, appellant’s counsel sought permission to withdraw from representation of appellant. This Court granted counsel’s motion. As a result, appellant filed a pro se motion for extension of time to file his brief on September 13, which this Court granted. On September 17, this Court entered an Order abating and remanding the cause because the trial court’s certification of defendant’s right of appeal was defective. The appeal was reinstated on October 28. On November 23, this Court granted appellant’s fourth request for extension of time to file his brief, extending the deadline to December 23. On January 3, 2011, this Court sent appellant notice that his brief was past-due and directing him to file his brief by January 13 or the appeal would be abated and remanded to the trial court. On January 6, newly retained counsel for appellant filed a request for extension of time to file appellant’s brief, which was granted to January 24. However, after appellant failed to meet this deadline, he was notified that failure to file his brief by February 10 may result in the appeal being abated and remanded. On February 3, appellant filed another request for extension of time to file his brief on the basis that he had discovered that certain necessary exhibits had been omitted from the reporter’s record. This motion for extension of time was granted and the deadline for appellant’s brief was extended to February 14. Appellant again failed to comply with the deadline set by this Court and, on March 11, appellant requested yet another extension of time to file his brief. By letter dated March 15, this Court denied this sixth request for extension of time to file appellant’s brief and directed appellant to file his brief on or before March 20.
No brief having been filed for appellant by April 8, we abated this appeal and remanded it to the trial court to determine whether appellate counsel had abandoned the appeal. After a hearing, the trial court entered findings of fact and conclusions of law. The trial court found that appellant’s counsel had been seriously ill with an undiagnosed complaint which prevented him from completing the brief and that the illness had recurred several times, but that counsel anticipated that he would complete the brief within 10 days. Further, in the event of a recurrence of counsel’s illness, counsel had engaged another attorney to assist in the preparation of the brief. The trial court also recommended that the filing of the brief should be required by the last day of May 2011 and that the absence of such filing should result in the dismissal of the appeal, forfeiture of appellant’s appeal bond, and the issuance of a capias for the arrest of appellant.
On May 10, 2011, the appeal was reinstated. In the letter informing appellant of the reinstatement of the case, this Court notified appellant that his brief was due on or before May 31, 2011, and that failure to comply with this deadline may result in the appeal being considered without briefs. When, once again, appellant’s brief was not received by this May 31 deadline, this Court sent appellant notice on June 16, informing him that his failure to file his brief by June 27 may result in the appeal being abated and remanded to the trial court for further proceedings. To date, this Court has not received appellant’s brief nor any response to our June 16 correspondence.
Accordingly, we now abate this appeal and remand the cause to the trial court. See Tex. R. App. P. 38.8(b)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given requiring appellant to personally appear and to then conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appellant is indigent; (3) if appellant desires to prosecute this appeal and is indigent, whether appellant=s present counsel should be replaced; (4) whether present counsel for appellant has abandoned the appeal; and (5) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant=s appeal if appellant does not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued. If the trial court determines that the present attorney for appellant should be replaced, the trial court should cause the Clerk of this Court to be furnished the name, address, and State Bar of Texas identification number of the newly appointed or newly retained attorney.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact and conclusions of law and cause them to be included in a supplemental clerk=s record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter=s record; (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk=s record or the supplemental reporter=s record; and (5) cause the records of the proceedings to be sent to this Court. In the absence of a request for extension of time from the trial court, the supplemental clerk=s record, supplemental reporter=s record, and any additional proceeding records, including any orders, findings, conclusions, and recommendations, are to be sent so as to be received by the Clerk of this Court not later than August 15, 2011.
It is so ordered.
Per Curiam
Do not publish.
:none;text-underline:none'>, 205 S.W.3d at 77.
Appellant did not object at trial to the court's failure to so instruct the jury. See Herron, 86 S.W.3d at 632 (applying harm analysis to similar errors). The failure to preserve jury-charge error is not a bar to appellate review, but rather establishes the degree of harm necessary for reversal. Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App. 2008). Because appellant did not object to the instruction's omission, the error does not result in reversal "unless it was so egregious and created such harm that appellant was denied a fair trial." Id.
The defendant is not egregiously harmed by the omission of a corroborating-evidence instruction if evidence other than the testimony of the informant is present to fulfill the purpose of the instruction. Simmons, 205 S.W.3d at 77, citing Herron, 86 S.W.3d at 632. A harm analysis for error in omitting the cautionary instruction on the requirement of corroborating evidence must be "flexible," taking into consideration both the existence and the strength of such other evidence. Id. In determining the strength of the corroborating evidence, we must examine: (1) its reliability or believability; and (2) the strength of its tendency to connect the defendant to the offense. Id. Omission of the article 38.141 instruction will generally not result in egregious harm "unless the corroborating evidence is so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Simmons, 205 S.W.3d at 77, citing Saunders v. State, 817 S.W.2d 688, 689 (Tex.Crim.App. 1991).
To corroborate confidential informant testimony, like accomplice testimony, all the law requires is that there be some independent evidence which tends to connect the accused to the commission of the offense. Cantelon v. State, 85 S.W.3d 457, 460-61 (Tex.App.--Austin 2002, no pet.), citing Hernandez v. State, 939 S.W.2d 173, 178-79 (Tex.Crim.App. 1997). To determine the sufficiency of the corroboration, we eliminate the testimony of the informant and ask whether other inculpatory evidence tends to connect the accused to the commission of the offense, even if it does not directly link the accused to the crime. McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App.1997), Casias v. State, 36 S.W.3d 897, 901 (Tex.App.--Austin 2001, no pet.). We must view the corroborating evidence in the light most favorable to the verdict. Knox v. State, 934 S.W.2d 678, 686-87 (Tex.Crim.App. 1996); Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994).
Evidence corroborating Fernandez’s testimony includes the audio recording of the transaction. Although Chandra insisted during her testimony that the recording must have been made at another time and location,[2] she nonetheless identified her own voice and also identified the male voice on the recording as appellant’s. Viewed in the light most favorable to the verdict, her testimony, coupled with that of the trooper concerning the time and place the recording was made, placed appellant at the residence at the time of the drug buy. The drug buy took place at appellant’s residence. Fernandez and her car were searched before and after the buy. Troopers testified Fernandez did not have any drugs before she left for the buy but returned after the buy with crack cocaine. A trooper testified he recorded the serial number of the $50 bill he gave to Fernandez and testified a $50 bill with a matching number was recovered after the search warrant was executed at appellant’s residence, hours after the buy. Appellant was present at his residence when the search warrant was executed.
The evidence corroborating Fernandez’s testimony is sufficient to satisfy the “tends-to-connect” standard. We find the jury could have considered the corroborating evidence of appellant’s guilt reliable and believable, and that it had a strong tendency to connect appellant with the offense. Simmons, 205 S.W.3d at 77. The corroborating evidence is not so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive. Accordingly, while the trial court erred in failing to instruct the jury pursuant to article 38.141, appellant did not suffer egregious harm from the court's failure to do so. We overrule appellant's second point of error.
Sufficiency of the Evidence
By appellant’s third point of error, he contends the evidence was legally and factually insufficient to show he constructively delivered cocaine. This point of error is premised on his first two points of error; that is, he argues that once the informant’s and his wife’s testimony is excluded, there is insufficient evidence of his commission of the offense.
Since appellant’s brief was filed, the Court of Criminal Appeals decided Brooks v. State, 323 S.W.3d 893, 2010 Tex.Crim.App. LEXIS 1240 (Tex.Crim.App. 2010). In that case, the court determined the sufficiency of the evidence should be reviewed only under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979). We will therefore review the evidence in a light most favorable to the verdict for appellant’s sufficiency claim.[3]
Under Jackson, an appellate court views the evidence in the light most favorable to the verdict to determine whether a rational fact finder could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001), citing Jackson, 443 U.S. at 319. If, based on all the evidence, a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant's guilt, due process requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975, 113 S. Ct. 1422, 122 L. Ed. 2d 791 (1993).
Appellant's evidentiary sufficiency argument is founded on a contention that only Chandra and Fernandez could give direct evidence of appellant's delivery of crack cocaine. However, circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007), and the circumstances we have described, reflected in the testimony of the officers, the recording and the presence of the $50 bill, are probative of appellant’s guilt. Next, we again note Chandra was called to the stand by appellant and there is no reason to exclude her testimony from our consideration. Further, the jury was free to believe and rely on Fernandez’s testimony. Article 38.141 does not render the testimony of a person cooperating with police incompetent. Nor does article 38.141 say that the jury should be skeptical of the testimony or give it less weight than other evidence. Herron, 86 S.W.3d at 632. Instead, once it is determined that corroborating evidence exists, the purpose of the 38.141 instruction is fulfilled and the instruction plays no further role in the fact finder's decision-making. Id.
We find, after viewing the evidence in the appropriate light, that a rational jury could have found each element of the offense beyond a reasonable doubt. Appellant's third point of error is overruled.
Exclusion of Confidential Informant Evidence
Through his fourth point of error, appellant contends the trial court erred by excluding evidence of his defensive theory that another confidential informant attempted unsuccessfully to purchase a controlled substance from appellant.
Seeking to pursue his defensive theory that the other alleged informant, rather than Fernandez, was the person who came to appellant’s home on the date of the buy, on cross examination of a trooper, appellant asked for the names of his other confidential informants. The State objected on the bases of relevance and the potential of placing cooperating individuals in harm’s way. The court sustained the State’s objection. The trooper then testified he did not use any other informants to make drug buys from appellant.
During appellant’s case, his wife Chandra testified to an occasion on which the other alleged informant came to their home seeking to buy drugs. Chandra said she told the woman to leave. Chandra also testified Fernandez did not come to their home on the date of the buy described in the indictment. That testimony, however, was not before the trial court at the time the court made the ruling of which appellant complains. The court had only the testimony of the trooper before it when it made its ruling. Our review of the trial court’s ruling is limited to the evidence that was before it at the time of the ruling. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000) (In reviewing trial court’s ruling on the admissibility of evidence, the “appellate court must review the trial court’s ruling in light of what was before the trial court at the time the ruling was made”). We can find no error in the court’s ruling based on the evidence before it at the time it sustained the State’s objection.
We overrule appellant’s final point of error. Having overruled appellant's points of error, we affirm the trial court's judgment.
James T. Campbell
Justice
Do not publish.
[1] See Tex. Health & Safety Code Ann. § 481.112(b) (West 2001); Tex. Health & Safety Code Ann. § 481.134 (West 2003). This offense is a state jail felony, punishable as a third degree felony because it took place in a drug free zone. Id. The punishment range for this offense was imprisonment for a term of not less than 2 years or more than 10 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (West 2003).
[2] On the recording, the jury heard Fernandez ask Chandra if she had gotten her phone fixed. Chandra testified her phone was broken while she lived at another house, not the house the police searched in May 2006.
[3] The previously-applied factual sufficiency standard considers whether the evidence supporting guilt, though legally sufficient, is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury's verdict is against the great weight and preponderance of the evidence. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). Under that standard, the ultimate question is whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283. Even had we applied such a standard to review of the evidence, we could not sustain appellant's contention. From our review of the entire record, the finding of appellant's guilt was neither clearly wrong and manifestly unjust nor against the great weight and preponderance of the evidence.