
NO. 07-07-0383-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL D



MAY 29, 2008



______________________________





RONNIE DUANE MASON, APPELLANT



V.



THE STATE OF TEXAS, APPELLEE





_________________________________



FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;



NO. 50,138-A; HONORABLE HAL MINER, JUDGE



_______________________________



Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

ABATEMENT AND REMAND

Appellant, Ronnie Duane Mason, was convicted of capital murder and sentenced to life imprisonment.  
The clerk’s record was filed on January 15, 2008.  Contained therein is the 
Trial Court’s Certification of Defendant’s Right of Appeal
, which was executed on September 4, 2007, after amendments to Rule 25.2(d) of the Texas Rules of Appellate Procedure became effective on September 1, 2007.
 
 The form on file does not comply with the amendments to the rule, which now require that a defendant sign the certification and receive a copy.  Additionally, the new form provides certain admonishments to a defendant not previously required.
(footnote: 1) 

Procedural rules generally control litigation from their effective date.  
Wilson v. State, 
473 S.W.2d 532, 535 (Tex.Crim.App. 1971).  Consequently, we abate this appeal and remand this cause to the trial court for further proceedings.  Upon remand, the trial court shall utilize whatever means necessary to secure a proper 
Certification of Defendant’s Right of Appeal 
in compliance with Rule 25.2(d).  Once properly completed and executed, the certification shall be included in a supplemental clerk’s record.  
See
 Tex. R. App. P. 34.5(c)(2).
  The trial court shall cause this supplemental clerk's record
 to be filed with the Clerk of this Court by July 14, 2008. 
 This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certification.  If a supplemental clerk’s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal.  
See 
Tex. R. App. P. 25.2(d). 

Also pending before this Court is Appellant’s third
 Motion for Extension of Time
 
to File Brief.  
We grant the motion to July 14, 2008.  As three extensions have now been granted, no further motions for extension of time will be considered absent exigent circumstances. 

It is so ordered.

Per Curiam

Do not publish.
r-Included Offense

Appellant contends, through his fifth and final point, that the trial court erred in failing to instruct the jury on the lesser-included offense of sexual assault.  However, during oral argument, he conceded that the instruction was indeed incorporated into the charge.  Our review of the record confirms this.  Thus, the point is overruled.

Points Two, Three and Four – Admission of Extraneous Bad Acts

Via points two through four, appellant challenges the admissibility of the complainant’s testimony about the other acts of sexual intercourse in which she engaged with appellant after July 17th.  This evidence was allegedly inadmissible because 1) it was irrelevant, 2) it constituted evidence of  extraneous offenses under Texas Rule of Evidence 404, and 3) its probative value was greatly outweighed by its prejudicial effect, as per Rule of Evidence 403.  We overrule the points for the trial court did not abuse its discretion in admitting the evidence.  
See
 
Montgomery v. State, 
810 S.W.2d 372, 378 (Tex. Crim. App. 1990).  

As to the issues of relevance and Rule 404 (generally prohibiting the admission of evidence of extraneous offenses), we note article 38.37 of the Texas Code of Criminal Procedure.  The statute applies to prosecutions for sexual offenses (among others) committed against children under 17 years of age, like that involved here.  
Tex. Code Crim. Proc. Ann. 
 art. 38.37 §1 (Vernon Supp. 2003).  Through it, the legislature declared that “[n]otwithstanding Rules 404 and 405" of the Texas Rules of Evidence, “evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim  . . . shall be admitted for its bearing on relevant matters, including . . . the previous and subsequent relationship between the defendant and the child.”  
Id.
 art. 38.37 §2(2).  Given this statute, the testimony of the child victim at bar was relevant and admissible, notwithstanding appellant’s invocation of Rule 404.  
McCoy v. State, 
20 S.W.3d 50, 54 (Tex. App.—Amarillo 1999, no pet.); 
Lincicome v. State, 
3 S.W.3d 644, 649 (Tex. App.— Amarillo 1999, no pet.).  This is so because it described, at the very least, the subsequent relationship between appellant and the complaining witness. 

As to the contention that the prejudicial effect of the testimony substantially outweighed its probative value, 
see 
Tex. R. Evid.
 403 (allowing the exclusion of relevant evidence under those circumstances), we note that appellant denied committing the offense for which he was tried.  So too did he endeavor to discredit the complaining witness’s testimony inculpating him.  Given this, proof that tended to corroborate the accusation became highly relevant.  Furthermore, the evidence that appellant sexually assaulted the child on other occasions when coupled with 1) his desire to marry the child, 2) his love poems and like professions of love to her, and 3) authorizing his 15-year-old daughter to marry a 27-year-old male, tended to do just that.  At the very least, it illustrated appellant’s relationship with the complainant, the nature of the household he maintained, and the setting in which the complainant lived while there.  It also permitted one to reasonably infer that he had lesser inhibitions when it came to older males sexually and emotionally interacting with female children in his care.  Thus, having subjected the girl to other sexual assaults while professing his love to her and allowing his own 15-year-old daughter to engage in emotional, if not sexual, relationships with adult men tends to credit the complainant’s testimony that he committed the assault alleged in the indictment.  As such, we cannot say that any decision rejecting the notion that the potentially undue prejudice of the evidence substantially outweighed its probative value would fall outside the zone of reasonable disagreement.  
See McCoy v. State, 
10 S.W.3d at 54.  Thus, we find no abused discretion in the trial court’s decision 
viz
 Rule 403.

Point One – Factual Sufficiency of the Evidence

In the final point that we consider, appellant argues that the evidence was factually insufficient to support the finding of guilt.  He apparently believes this to be so because the sole testimony of sexual assault came from the complainant, and her testimony was not free of inconsistency.   We overrule this point as well.

First, appellant did not explain, while developing this point of error, how the complainant’s testimony was inconsistent, ambiguous, or unbelievable.  Such an explanation was required by Texas Rule of Appellate Procedure 38.1(h).  Thus, he failed to adequately brief and preserve the point.  
Elam v. State, 
841 S.W.2d  937, 940 (Tex. App.—Austin 1992, no pet.) (holding that mere citation of authority without discussion of the facts showing error is insufficient argument and that mere references to record pages does not sufficiently identify the actions of which complaint is made).   

Second, the testimony of a child victim alone may be sufficient to sustain a conviction.  
See 
Mallet v. State, 
9 S.W.3d 856, 864 (Tex. App.—Fort Worth 2000, no pet.) (holding that in a sexual assault case, the child victim’s testimony alone is sufficient to support a conviction); 
O’Hara v. State, 
837 S.W.2d 139, 141-42 (Tex. App.—Austin 1992, pet. ref’d) (holding the same).  Here, that child victim testified that appellant took her to his bedroom, fondled her, disrobed her, dropped his pants, and inserted his penis into her vagina at a time when she was 13 years old and not his spouse.  That is some evidence upon which a rational jury could find beyond reasonable doubt that he intentionally and knowingly committed aggravated sexual assault.  
See 
Tex. Pen. Code Ann. 
§22.021(a)(1)(B)(i) (Vernon Supp. 2003) (describing the elements of aggravated sexual assault).
  

Yet, we also have before us evidence that he did this on other occasions during a period in which he professed his love to her and his desire to marry her.  This is further  matter which a jury could consider in assessing whether appellant committed the crime with which he was charged.  And, that there may have been inconsistencies in the evidence simply presented opportunity for the jury to fulfill its function as factfinder and the sole judge of the witness’s credibility.  
It did not render the verdict clearly wrong or manifestly unjust.  
See King v. State, 
29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000) (discussing the standard of review applicable to claims of factual insufficiency); 
Clewis v. State, 
922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (discussing same).  

Accordingly, the judgment of the trial court is affirmed.



Brian Quinn

   Justice    

 

Do not publish.	 

FOOTNOTES
1:The proper form for 
Certification of Defendant’s Right of Appeal 
is contained in Appendix D to the 2008 Texas Rules of Appellate Procedure.


