
NO. 07-03-0554-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 21, 2004

______________________________

CATHERINE MENDOZA AND ARMANDO MENDOZA AND
IN THE INTEREST OF A.M., A CHILD, APPELLANTS

V.

TEXAS DEPT. OF PROTECTIVE AND REGULATORY SERVICES, APPELLEE
_________________________________

FROM THE COUNTY COURT AT LAW OF RANDALL COUNTY;

NO. 3288-L; HONORABLE JAMES W. ANDERSON, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
 Appellant Catherine Mendoza, a/k/a Catherine Mendoza Menzinni, filed a pro se
notice of appeal with this court on December 7, 2003, appealing a judgment terminating
her parental rights. In her notice of appeal, she indicated that she was indigent.  We
abated the appeal and remanded the cause so the trial court could determine if Ms.
Mendoza was indigent and entitled to representation by counsel in her appeal. Tex. Fam.
Code Ann. § 263.405(e) (Vernon 2002).

	The trial court held an evidentiary hearing on April 4, 2004, and determined that
appellant is not indigent.  As a result, the clerk of this court notified appellant by letter on
June 3, 2004, that she was not entitled to proceed as an indigent and ordered her to pay
the appellate filing fee by July 2, 2004. See Tex. R. App. P. 5.  Appellant was also notified
that failure to pay the filing fee could result in dismissal. See Tex. R. App. P. 42.3.  That
date has passed and no response has been received.
	All parties have had more than ten days notice that dismissal could result from
appellant's failure to comply with the rules and this court's orders. Tex. R. App. P. 42.3(c). 
Consequently, the appeal is dismissed. 

						James T. Campbell
						        Justice



diately
before trial began and the trial court denied the motion without explaining why, appellant
did not object to the lack of an explanation.  This alone warrants rejection of his issue for
one must preserve his complaint about supposed error through a timely or
contemporaneous objection or request.  Tex. R. App. P. 33.1(a).  Appellant having failed
to object to the omission or request that the trial court make findings, the issue was not
preserved.
	Yet, even if appellant preserved his complaint, we nonetheless would remain
obligated to reject it.  This is so for several reasons.  First, noticeably absent from the
wording of §3.04 of the Penal Code is any requirement that the trial court inform the
litigants why it opted to grant or deny a motion to sever under §3.04(c).  Given that it is the
function of the legislature to create law, not the courts, we hesitate to write into §3.04 that
which the legislature omitted.
	Furthermore, we note the similarity between the test mandated by §3.04(c) and that
of Texas Rule of Evidence 403.  The latter also deals with the issue of unfair prejudice, but
in the context of admitting evidence at trial.  And, if the court finds that the admission of a
particular bit of evidence would, among other things, "unfairly prejudice" a litigant, it may
exclude the item.  Tex. R. Evid. 403.  Moreover, in determining whether such prejudice
exists, the trial court must undertake a balancing test; that is, it must balance the probative
value of the evidence against its potential for unfair prejudice.  Yet, no independent hearing
need be convened for it to fulfill the duty.  Patino v. State, No. 03-0131-CR, 2005 Tex. App.
Lexis 3934 at 5-6 (Tex. App.-Amarillo May 19, 2005, no pet.); Franco v. State, 25 S.W.3d
26, 28 (Tex. App.-El Paso 2000, pet. ref'd).  Nor must it illustrate, of record, that it
undertook the requisite balancing.  Patino v. State, 2005 Tex. App. Lexis 3934 at 5-6;
Parmer v. State, 38 S.W.3d 661, 670 (Tex. App.-Austin 2001, pet. ref'd).  Indeed, by the
trial court considering and overruling the objection, it can be said that it necessarily
engaged in the requisite balancing.  Patino v. State, 2005 Tex. App. Lexis 3934 at 5-6;
Parmer v. State, 38 S.W.3d at 670.  
	To the extent that the Court of Criminal Appeals has set up a mechanism by which
a trial court must analyze the potential for unfair prejudice under one circumstance, there
seems little reason to implement a different mechanism when the same test (i.e. unfair
prejudice) is involved under another circumstance.  Simply put, we see no reason to
reinvent the wheel.  So, to the extent that §3.04(c) of the Penal Code obligates the trial
court to assess the potential for unfair prejudice, we hold that it may utilize the analytical
mechanism applied when facing a Rule 403 objection.  That is, it need not illustrate, of
record, how it undertook the requisite analysis.  Nor must it specify the indicia or evidence
it considered during its analysis.  And,  unless the record affirmatively shows otherwise, we
may presume that by acting upon the request, it performed the duties imposed by  §3.04(c),
and the record does not so illustrate here. 
	Thus, we overrule appellant's sole issue and affirm the judgment.

								Brian Quinn 
							          Chief Justice

Publish.
1. We note the absence from appellant's brief of argument purporting to illustrate that he suffered any
prejudice, much less unfair prejudice.   
