                                    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:

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


       A:      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:


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


       A:      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.




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       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 [1 st

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).

                                               4
       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.




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