Betty Ann Newby v. Sheria Evans, Individually and as Administratrix of the Estate of George Ralph Newby, Jr., Dan Moser and Moser Investments

• Court: Court of Appeals of Texas
• Decided: February 26, 2004
• Docket: 07-04-00002-CV
• Status: Published

Opinion

NO. 07-04-0002-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 26, 2004

______________________________

BETTY ANN NEWBY, APPELLANT

V.

SHERIA EVANS, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF GEORGE RALPH NEWBY, JR., DECEASED, DAN MOSER AND MOSER INVESTMENTS, APPELLEES

_________________________________

FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

NO. 35,150; HONORABLE JACK YOUNG, JUDGE

_______________________________

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

MEMORANDUM OPINION

On January 2, 2004, the clerk of this court received a copy of a Notice of Appeal filed on behalf of appellant Betty Ann Newby. By letter dated January 6, 2004, the clerk advised appellant that a filing fee had not been received, see Tex. R. App. P. 5. The clerk's letter likewise advised that no further action would be taken on the appeal by this Court until a filing fee had been paid and that failure to pay the filing fee may result in dismissal of the appeal. See Tex. R. App. P. 42.3.

The filing fee was not paid. By letter dated February 12, 2004, the clerk advised counsel for appellant that the filing fee had still not been paid, and that unless the filing fee was received on or before February 23, 2004, the appeal would be subject to dismissal.

The filing fee has not been paid. Accordingly, this appeal is dismissed. Tex. R. App. P. 42.3.

Phil Johnson

Chief Justice

no writ) (unpublished) (applying Anders in an appeal from a commitment order).

Next, counsel discusses two potential areas for error. The first concerns the confrontation clause of the United States Constitution and whether it was violated when the trial court permitted a witness to testify via the telephone. The second involves the effective assistance of counsel when he withheld objection to the decision allowing testimony to be received over the phone. Each issue was then shown to be baseless. For instance, trial counsel was given leave to cross-examine and actually questioned the witness over the telephone. So, appellant's opportunity to test the comments of the witness was preserved in this instance. Additionally, appellant says nothing about being unable to broach or investigate any particular subject due to the procedure utilized. And, because appellant had the opportunity to cross-examine the witness and actually did so, withholding objection to the procedure did not render trial counsel ineffective. We agree.

In addition to reading the Anders brief and appellant's pro se response, we also reviewed the record, sua sponte, as required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Our review of it disclosed no arguable error warranting reversal.

Accordingly, the motion to withdraw is granted, and the order committing appellant to North Texas State Hospital not to exceed 365 days is affirmed.

Per Curiam

1. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( 1967).