IN THE

TENTH COURT OF APPEALS

No. 10-94-286-CR

     DALE COBB,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 932500 CR2

MEMORANDUM OPINION

      A jury found Dale Cobb guilty of telephone harassment and assessed punishment of a $100 fine, probated for 180 days. See Tex. Penal Code Ann. § 42.07(a)(2) (Vernon 1994). Although he appealed from the court's judgment sentencing him to the assessed punishment, he filed a motion to dismiss his appeal on February 28, 1995. In relevant portion, Rule 59 of the Texas Rules of Appellate Procedure states:

(b) Criminal Cases. The appeal may be dismissed if the appellant withdraws his notice of appeal at any time prior to the decision of the appellate court. The withdrawal shall be in writing signed by the appellant and his counsel and filed in duplicate with the clerk of the court of appeals in which the appeal is pending . . . . Notice of the dismissal shall be sent to the clerk of the trial court in which notice of appeal was filed.

Tex. R. App. P. 59(b).

      Although Cobb's motion does not specifically withdraw his notice of appeal, we will construe and treat the motion as such a request. We have not issued a decision in his appeal. The motion is signed personally by Cobb and by his attorney. He has filed the motion in duplicate, as required. Thus, the motion is granted.

      Cobb's appeal is dismissed.

                                                                               PER CURIAM

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Dismissed on appellant's motion

Opinion delivered and filed March 15, 1995

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n objection. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (on rehearing) ("Further objection based upon Rule 403 is now required."). Third, we review rulings of the trial court, and the court made no attempt to balance the probative value of the testimony against the danger of unfair prejudice, confusion of the issues, or any other factor listed in Rule 403. Tex. R. Crim. Evid. 403. Fourth, the matter was barely mentioned in the State's brief on original submission. In fact, the entire presentation of the Rule 403 argument is contained in seven lines at page 14 of the State's Brief and includes no analysis.

          We might have considered the provisions of Rule 403 in conducting the harm analysis. We determined that the court erred in failing to allow relevant evidence of prior sexual activity of the prosecutrix, then determined that the error had harmed Johnson because the erroneous ruling denied him evidence of a statutory defense provided by the legislature. Johnson, 933 S.W.2d at 203. Had we inserted a Rule 403 factor into the harm equation, we would have reached the same result, i.e., that exclusion of the evidence required reversal because of the absence of the defensive theory from the jury's deliberations. Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989); Tex. R. App. P. 81(b)(2). Applying the factors set out in Montgomery to our harm analysis, we find initially that the "approach under Rule 403 is to admit relevant evidence unless the probative value of that relevant evidence is substantially outweighed by the danger of unfair prejudice . . . ." Montgomery, 810 S.W.2d at 389. Johnson's need for the testimony to raise the defense of promiscuity was great—no other evidence of promiscuity is in the record. The State has not demonstrated how the testimony is unfairly prejudicial to it, particularly in light of the fact that the defense to which the testimony was relevant was a statutory defense. Indeed, the State did not argue that the testimony was "unfairly prejudicial," as stated in the Rule; only that it was "prejudicial." Additionally, the rule requires that the unfair prejudice substantially outweigh the probative value of the proffered testimony. Tex. R. Crim. Evid. 403. For these reasons, we would have reached the same conclusion about harm, had we considered a properly presented Rule 403 argument.

          Finally, the State argues that the defense of promiscuity is not consistent with Johnson's theory of the case, as demonstrated by his testimony that he "was elsewhere in the school building." We review a trial court's evidentiary rulings as of the time that the court made the ruling. The court excluded testimony about the prosecutrix' prior sexual activity during the State's case-in-chief. Johnson had not elected to testify as of that point in time. Further, we allow defendants to submit defensive theories alternatively.

          With these additional comments, we reaffirm our original position that the judgment in this case be reversed and a new trial ordered.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

          (Justice Cummings dissents without further opinion)

Opinion delivered and filed February 5, 1997

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