
NO. 07-04-0263-CR


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL A


OCTOBER 12, 2005


______________________________



RUFUS SITO NANEZ, III, APPELLANT


V.


THE STATE OF TEXAS, APPELLEE



_________________________________


FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;


NO. 6180; HONORABLE STEVEN R. EMMERT, JUDGE


_______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.
 OPINION
	Following a plea of not guilty, appellant Rufus Sito Nanez, III was convicted by a jury
of unlawful possession of a firearm and sentenced to ten years confinement and a $10,000
fine.  Presenting three issues, appellant contends the trial court erred by (1) failing to grant
a mistrial when the State asked a witness to repeat hearsay evidence to the jury, (2)
overruling his objection to testimony obtained from an interview with him, and (3) admitting
testimony during the punishment phase concerning extraneous offenses.  We affirm.
	Appellant was indicted for unlawfully possessing a firearm while he was under
community supervision for a prior felony conviction.  As the result of a routine drug arrest in
Wheeler County, Gray County Sheriff's Deputy Kelly Rushing obtained custody of two
handguns that had been reported stolen from a Gray County residence several months
earlier.  In conducting his investigation, Deputy Rushing interviewed the alleged owner of the
guns, Scott Neighbors.  Neighbors identified appellant as the person who gave him the
handguns.  Appellant then voluntarily agreed to meet  with Deputy Rushing for questioning.
  	During the interview and at trial, appellant claimed he was approached at his place of
employment by two unidentified men looking for a buyer for the two guns.  Appellant told the
men he was not interested in purchasing the guns but thought he knew someone who might
be.  He then offered to sell the guns to fellow employee Scott Neighbors for $50.  In doing so,
appellant maintains he was never in physical possession of the firearms.  However, after
hearing the evidence, a jury found appellant guilty of possessing the firearms.  At the
punishment phase of trial, the State introduced evidence of appellant's involvement in two
prior burglaries.
	By his first issue, appellant contends the trial court should have granted a mistrial when
the State asked Deputy Rushing to repeat hearsay evidence to the jury.  We disagree.  The
State questioned Deputy Rushing about his investigation into the burglary of the handguns
and his interview with Scott Neighbors.  The State then asked the following question:

	Okay.  What did you do after you talked to Scott Neighbors?

 

	I -- I contacted the next one, the one he said he got the guns from.

 
	Appellant immediately objected to hearsay and asked that the jury be instructed to
disregard the testimony.  The court sustained the objection and instructed the jury as
requested.  Appellant then moved for a mistrial claiming such an instruction would not remove
the testimony from the jury's mind.  The court denied the request for a mistrial.  The State
continued questioning the witness as follows:

	Deputy Rushing, after you finished visiting with Scott Neighbors , who
did you visit with next?

 


Rufus Nanez.


 
	Appellant contends the State's rephrasing of the question was grounds for a mistrial
because the obvious implication, based upon the previous hearsay response, was to name
him as the one who supplied the guns.  However, after the State posed the question,
appellant failed to object or otherwise direct the court's attention to the alleged error.  In order
for us consider his complaint on appeal, the record must show appellant preserved his
complaint by a timely request, objection, or motion and obtained a ruling from the trial court.
See Tex. R. App. P. 33.1(a); Hull v. State, 67 S.W.3d 215, 217 (Tex.Cr.App. 2002). Since he
did not object or request a mistrial, appellant's first issue presents nothing for review and is
overruled.
	By his second issue, appellant claims the trial court erred in overruling his objection
to Deputy Rushing's testimony about his interview with him.  We disagree.  By his brief,
appellant cites no authority to support his contention that the trial court erred in considering
this testimony.  Failure to adequately brief an argument and provide authority to support an
issue waives the complaint.  See Hughes v. State, 962 S.W.2d 689, 692 (Tex.App.--Houston
[1st Dist.] 1998, pet. ref'd); Hicks v. State, 15 S.W.3d 626, 630 (Tex.App--Houston [14th Dist.]
2000, pet. ref'd).  Appellant's second issue is overruled.
	By his third issue, appellant contends the trial court erred at the punishment phase of
trial by admitting testimony concerning his involvement in two prior burglaries because the
State could not and did not prove the offenses with evidence beyond a reasonable doubt.  We
disagree.
	The decision of a trial court regarding the admissibility of extraneous offense evidence
is reviewed under an abuse of discretion standard.  Saenz v. State, 843 S.W.2d 24, 26
(Tex.Cr.App. 1992); Cate v. State, 124 S.W.3d 922, 930 (Tex.App.-Amarillo 2004, no pet.). 
Regarding extraneous offense evidence at the punishment phase of trial, article 37.07 of the
Code of Criminal Procedure provides as follows:
	evidence may be offered by the state and the defendant as to any matter the
court deems relevant to sentencing, including . . . evidence of an extraneous
crime or bad act that is shown beyond a reasonable doubt by evidence to have
been committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Pamph. Supp. 2004-05).

	This provision was considered by the Court in Mitchell v. State, 931 S.W.2d 950
(Tex.Cr.App. 1996).  The Court concluded the trial court is the sole authority on the threshold
issue of admissibility of relevant evidence, while the jury determines whether or not the
burden of proof for the extraneous offenses presented has been satisfied.  Id. at 953.  Stated
differently, the trial court is not charged with determining whether the State has proven the
extraneous offenses beyond a reasonable doubt.  See id. at 954.  The jury as "the exclusive
judge of the facts" is to determine whether the burden of proof has been met before
considering evidence concerning extraneous offenses and should be so instructed when
requested.  Id.; Ex parte Varelas, 45 S.W.3d 627, 631 (Tex.Cr.App. 2001).
 Here, the trial court made a determination outside the presence of the jury that the
extraneous offense evidence was relevant, and the jury was properly instructed that it could
only consider the testimony if it found beyond a reasonable doubt that appellant committed
such acts.   Considering the applicable standard of review, we find the trial court did not abuse
its discretion in admitting the testimony.  Issue three is overruled.
	Accordingly, the judgment of the trial court is affirmed.

						Don H. Reavis
						     Justice
                                                                                                                                            
Publish.
