Michael Larkin v. State

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00313-CR

No. 10-06-00314-CR

Michael Larkin,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court Nos. FISC-05-17710 and FO-06-18232

ABATEMENT ORDER

          Appellant’s brief is overdue in these appeals. 

          Therefore, we abate these appeals to the trial court to conduct a hearing within 30 days of the date of this Order pursuant to Texas Rule of Appellate Procedure 38.8(b)(2) and (3).  Tex. R. App. P. 38.8(b)(2), (3).

          Supplemental Clerk’s and Reporter’s Records are ordered to be filed within 45 days of the date of this Order.  See id.

                                                                   PER CURIAM

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeals abated

Order issued and filed May 2, 2007

Do not publish

style='mso-bidi-font-weight: normal'>No. 10-02-00321-CR

No. 10-02-00322-CR

No. 10-02-00323-CR

No. 10-02-00324-CR

No. 10-02-00325-CR

Wayne Owen Stubblefield,

Trial Court Nos. 16370, 16421, 16422, 16423 and 16424

MEMORANDUM  Opinion

        This appeal concerns five convictions for aggravated assault.  See Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2004).  We will affirm.

      In his sole issue, Appellant contends that the trial court erred in sustaining the State’s objection to evidence of statements that Appellant made to police sometime after his arrest.  At trial, Appellant argued that the statements were admissible as exceptions to the hearsay rule, see Tex. R. Evid. 802, as a “[s]tatement of his penal interest,” cf. id. 803(24) (“statements against interest”).  He also argued that the statements were admissible as statements of Appellant’s then existing mental, emotional, or physical condition.  See id. 803(3).  Appellant also apparently argued that the statements were admissible under Texas’s confession statute.  See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon Supp. 2004).  On appeal, Appellant contends that the statements were “res gestae of the arrest” and “necessary to explain or contradict actions and declarations first offered by the State” (emphasis in orig.) (citing Cazares v. State, 488 S.W.2d 455, 457 (Tex. Crim. App. 1972)).  Neither of these theories of admissibility comports with his theories for admission argued at trial.  See Tex. R. App. P. 33.1(a); Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2157 (2004); Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1999) (op. on

reh’g).  Accordingly, Appellant forfeits his complaint.  See id.  We overrule Appellant’s issue, and affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Reyna

Opinion delivered and filed September 29, 2004

Affirmed

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