William Brian Fennell v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00245-CV

William Brian Fennell,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 66th District Court

Hill County, Texas

Trial Court No. 37694

MEMORANDUM  Opinion

          The Clerk of this Court notified the parties that the appellant=s brief was overdue in this asset forfeiture appeal and that the appeal would be dismissed if an appropriate response was not filed within ten days.  The Court has received no response.  Accordingly, the appeal is dismissed for want of prosecution.  See Tex. R. App. P. 38.8(a)(1), 42.3.[1]

                                                                   PER CURIAM

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal dismissed

Opinion delivered and filed September 14, 2005

[CV06]

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[1]           Appeals in cases involving asset forfeitures are governed by the rules applicable to civil appeals.  See Hardy v. State, 50 S.W.3d 689, 692 (Tex. App.—Waco 2001), aff’d, 102 S.W.3d 123 (Tex. 2003).

ertwined with each other; (2) whether the evidence for each count was sufficiently distinct to support the verdict on other separate counts; (3) whether substantially all the evidence introduced to support the invalid conviction would have been admissible to prove other counts, and whether the elimination of the invalid count would have significantly changed the strategy of the trial; and (4) whether the charges, the language used by the prosecution, and the evidence introduced at trial are of the sort that would arouse a jury. Id. at 898-99.

      We have found but a single Texas case that discussed the “spillover effect.” Ex parte Mills, 795 S.W.2d 203, 204 (Tex. Crim. App. 1990). In Mills, a habeas corpus proceeding, the Court of Criminal Appeals asked whether Mills, who had been convicted on two counts of “theft by receiving” and assessed 65 years on each count, was entitled to a new trial on the offense upheld on appeal while the other was reversed and an acquittal ordered for legally insufficient evidence. Id. Mills argued, "there is no way of knowing if the finder of fact would have assessed the same punishment had Applicant been found guilty of only one of the counts." Id. at 203. The Court asked, “does the spillover effect of the improper conviction require a new punishment hearing on the surviving conviction?” Id. at 204. Finding that Mills had not demonstrated that the jury’s consideration of the invalid count had contributed to the sentence on the valid count, the Court denied relief. Id. at 205.

      In assessing harm under Rule 44.2(b), we are mindful that “it is the duty of the reviewing court to assess harm from the context of the error,” not the duty of the parties to show harm or lack thereof. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). We accept the proposition that a “spillover effect” could occur and taint another count when evidence was improperly admitted on one count.

      Thrift was charged in two counts with sexual assault of J.B. and indecency with a child, namely J.B. The events occurred in a short time-frame at a single location. The counts were tried together and the main witnesses who testified about the acts were J.B., Thrift, and M.B., who testified about the indecency charge. The potential for harm on both counts flowing from the improperly admitted evidence is sufficient to merit an inquiry under the factors outlined above.

      Were the charges intertwined with each other? Yes, the two acts occurred at the same location within a short period of time. Was the evidence for each count sufficiently distinct to support the verdict on the other counts? Yes, although closely related in time, the victim testified about two distinct acts that constituted the separate offenses. Would substantially all the evidence introduced to support the invalid conviction have been admissible to prove other counts, and would the elimination of the invalid count have significantly changed the strategy of the trial? Yes, substantially all the evidence would have been admissible on the sexual assault count; no, the strategy of the trial would not have changed significantly. And finally, were the charges, the language used by the prosecution, and the evidence introduced at trial of the sort that would arouse a jury? Yes, but the nature of the sexual assault itself was sufficient to arouse the jury.

      As we noted in our original opinion, the court charged the jury that it could only consider the evidence we found to be improperly admitted as evidence of intent on the indecency count, “and for no other purpose.”

      Considering all of the foregoing, we conclude that there was no spillover effect that would require reversal of the conviction for sexual assault. Thrift’s motion for rehearing is denied.

      Believing that our original determination of the issue involving the photographs is correct, we overrule the State’s motion for rehearing.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Chief Justice Gray dissenting and concurring)

Rehearings denied

Opinion delivered and filed May 12, 2004

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