Linda Gayle Smith v. State ( 1997 )

Linda Gayle Smith v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-97-190-CR

     LINDA GAYLE SMITH,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 97-02-11759 BCCR

MEMORANDUM OPINION

      On November 28, 1994, the appellant, Linda Gayle Smith, pled guilty to the felony offense of delivery of a dangerous drug, and the trial court assessed the agreed punishment of 10 years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice, probated for 10 years. On February 24, 1997, the State filed a motion to revoke Smith’s community supervision, alleging that she had violated several of the terms of her probated sentence. The trial court granted the State’s motion and revoked Smith’s community supervision on May 30, 1997. Smith filed a notice of appeal on June 16, 1997.

      The transcript was filed on July 9, and the statement of facts was filed on July 16. Smith’s brief was due on August 15. Not receiving a brief or an extension for time to file a brief, we sent a letter to Smith’s attorney on August 20, informing him that he must file his brief within 10 days of the letter or the cause would be abated to the trial court for a hearing on whether Smith was receiving ineffective assistance from her counsel. Those 10 days passed and no brief or an extension to file a brief was filed. We therefore abated this cause on October 8, 1997. Furthermore, on September 17, Smith’s attorney filed a motion to voluntarily dismiss Smith’s appeal. Because the motion was not signed by both Smith and her attorney as is required by Rule 42.2(a), we denied the motion. A proper motion to voluntarily dismiss Smith’s appeal has now been filed.

      The appellate rule governing voluntary dismissals in criminal appeals states:

At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk. . . .

Tex. R. App. P. 42.2(a).

      We have not issued a decision in this appeal. The motion is signed by both Smith and her attorney. Thus, the motion meets the requirements of the rules and is granted.  

      Smith's appeal is dismissed.

                                                                               PER CURIAM

Before   Chief Justice Davis,

            Justice Cummings, and

            Justice Vance

Dismissed on appellant's motion

Opinion delivered and filed November 5, 1997

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tyle="font-size: 12pt">      K. B. testified that she could see Kellis’s hand "pretty good," but she acknowledged that the lights and television in the room were off and that there was no open window. She indicated that she was not sure where the light was coming from, but that it was probably coming from the kitchen, the living room, or "something." She also stated that Kellis could have been asleep when it happened.

      Don Worsham, an investigating officer with the West Columbia Police Department, testified that on September 11, 2000, he received a call from Ray Beach, K. B.'s father, concerning this event. He indicated that he, accompanied by a victim advocate, obtained from K. B. a handwritten copy in her words of what had occurred. He stated that Ray Beach's wife provided him with a written statement that she had prepared in advance. He said that he did not obtain a statement from Ray Beach. Worsham acknowledged that he did not go to Ray Beach's residence until September 18, 2000.

      Detective Worsham testified that allegations concerning sexual abuse of children require special care, but that he felt he could interview K. B. because of her age, which was 14 at the time of the event and 15 at the time of the interview. He stated that he felt he was qualified to do so because he had taken many statements on many other criminal cases in his career. He acknowledged that he had received no specialized training with regard to the investigation of sexual abuse of children.

      Ray Beech, K. B.’s father, testified that he kept a calendar showing when K. B. stayed with her mother. He stated that the only two days in 2000 that she stayed with her mother were January 8 and April 29.

      In urging that the evidence is insufficient, Kellis mentions that Officer Worsham responded a week after he received a call about the event, which was six months after the event occurred; that Officer Worsham coached K. B. on the exact details and revised her statement with the specific intent of making his case; and that he never interviewed Kellis or investigated further. He also points to inconsistencies or defects in K. B.'s testimony, including her ability to see clearly in a darkened room; the discrepancy as to whether the event occurred in mid-March or April; and the fact that she indicated that Kellis could have been asleep when the event occurred.

      Concerning these matters, we would point out that a reasonable jury could have determined the following from the evidence: Officer Worsham’s delay in responding to Ray Beach’s call was because he was the only investigator for the West Columbia Police Department; K. B. delayed in reporting what occurred because she did not think her mother would believe her and she did not want to disrupt her mother’s family; it was K. B., not Officer Worsham, who indicated that Kellis touched her on her private part and Officer Worsham, in supplying the word “vagina” and inserting it in the statement, was simply stating in other words what K. B. had indicated; Officer Worsham made a reasonable effort to contact Kellis about the event; the bedroom where the incident occurred was illuminated by light from another room; the event could have occurred as related by K. B., even though she could not recall the specific date six months later; and Kellis was not asleep, given the fact that he was masturbating during the event. Having considered these matters raised by Kellis, we find that they do not indicate that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or that the proof of guilt is greatly outweighed by contrary proof. We hold the evidence is legally and factually sufficient to support the conviction, and overrule issue one.

      Kellis insists in issue two that the trial court erred by allowing the State on two occasions in its argument on punishment to urge that the jury punish him for both the offense for which he was on trial as well as a prior offense. Inasmuch as Kellis did not object to either argument, nothing is presented for review. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Kellis’s statement in his brief that he objected to these arguments is unsupported by the record. We overrule issue two.

      The judgment is affirmed.

                                                                   JOHN G. HILL

                                                                   Senior Justice

Before Chief Justice Davis,

      Justice Gray, and

      Senior Justice Hill (Sitting by Assignment)

Affirmed

Opinion delivered and filed December 18, 2002

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