Charles Michael Forrest v. William Clinton Forrest and Chesapeake Operating, Inc.

IN THE TENTH COURT OF APPEALS No. 10-11-00133-CV forrest cleburne properties, lp and Charles Michael Forrest, Appellants v. william clinton forrest and Chesapeake Operating, Inc., Appellees From the 18th District Court Johnson County, Texas Trial Court No. C201100001 MEMORANDUM Opinion The Clerk of this Court notified Appellant Charles Michael Forrest[1] by letter dated June 21, 2011 that the original filing fee of $175.00 had not been paid and that if the fee was not paid or an indigence affidavit was not filed within 14 days, the appeal would be dismissed. More than 14 days have passed, and the fee has not been paid and an indigence affidavit has not been filed. Furthermore, by letter dated June 15, 2011, the Clerk notified Appellant Charles Michael Forrest that the clerk’s record in the above cause had apparently not been filed because Appellant had failed to pay or make arrangements to pay the clerk’s fee for preparation of the record. Appellant was further notified that if he desired to proceed with this appeal, he must pay or make arrangements to pay the clerk’s fee and notify this Court of the actions taken within 21 days after the date of this letter. Appellant was warned that if he failed to do so, this appeal might be dismissed for want of prosecution. See Tex. R. App. P. 37.3(b). More than 21 days have passed, and we have not been notified that Appellant has paid or made arrangements to pay the clerk’s fee. Accordingly, this appeal is dismissed. See Tex. R. App. P. 37.3(b), 42.3(b), (c); see also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 5(a). REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Dismissed Opinion delivered and filed July 20, 2011 [CV06] [1] In a prior order, the Court dismissed this appeal as to Appellant Forrest Cleburne Properties, L.P. The autopsy report merely substantiated Krouse's testimony, which was admitted without objection. Assuming that the report was improperly admitted, no reversible error occurred because the facts in the report were proved by Krouse's testimony. See Brasfield v. State, 600 S.W.2d 288, 296 (Tex. Crim. App. 1980). Accordingly, point one is overruled. Appellant requested these instructions: 1. You are further instructed that no act done by accident is an offense. If you find and believe from the evidence that the death of [the decedent] was the result of an accident, or you have a reasonable doubt thereof, then you will find [Appellant] not guilty. 2. Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute. 3. A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute that provides that conduct is an offense. The court submitted the third instruction, but denied the first two. Appellant complains in point two that, by refusing his second instruction, the court left the jury with inadequate instructions on what conduct constitutes an offense. Point four is that, by failing to submit the first instruction, the court refused to submit the defensive issue of accident. The court gave this instruction to the jury: "A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute that provides that conduct is an offense." This informed the jury that conduct constitutes an offense only if it is voluntarily engaged in and violates a statute that makes the conduct an offense, which was the essence of Appellant's second and third instructions. Under the circumstances, Appellant was not harmed because the instruction given was substantially similar to the second and third instructions which were refused. See DeBolt v. State, 604 S.W.2d 164, 168 (Tex. Crim. App. [Panel Op.] 1980). Point two is overruled. Appellant argues that the defense of accident should have been submitted to the jury by his first instruction because the collision was unintentional. See Stiles v. State, 520 S.W.2d 894, 896 (Tex. Crim. App. 1975). The distinction between intentional and unintentional conduct is no longer valid. Dockery v. State, 542 S.W.2d 644, 649 (Tex. Crim. App. 1975). Homicide is punishable only when the state proves voluntary conduct and a culpable mental state. Id. Thus, the court did not err when it refused Appellant's requested instruction on the former defense of accident. Point four is overruled. All points have been overruled. The judgment is affirmed. BOB L. THOMAS Chief Justice Before Chief Justice Thomas, Chief Justice McDonald (Retired), and Justice James (Retired) Affirmed Opinion filed and delivered January 31, 1991 Do not publish