Ruby Jean Matney v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR04-119

February 9, 2005

RUBY JEAN MATNEY AN APPEAL FROM STONE

APPELLANT COUNTY CIRCUIT COURT

[CR03-4]

V. HON. JOHN DAN KEMP, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Pro se appellant Ruby Jean Matney has appealed her conviction for theft of water services.1 She argues that her trial counsel was ineffective and the evidence was insufficient to support her conviction. We affirm for failure to preserve both issues for appellate review.2

At the October 1, 2003 bench trial, Susan Kast testified that she was custodian of records for the West Stone County Water Association ("Water Association"). Kast testified that two years prior to trial, Matney called her and asked about receiving city water. Kast told Matney that the Water Association required a $500 tap fee, and Matney responded that she could not afford it. Kast testified that she later went to Matney's residence, observedwater leaking over the road, a meter box full of water, that a pipe was run straight through the water line in order to obtain water that would not be metered, and that such an illegal hookup could support the two residences on Matney's property. Kast testified that the Water Association lost $2735.60 because of the illegal hookup. On cross-examination, she testified that she did not verify that Matney's home was being supplied with water. Kast also did not know how long the pipe had been hooked up, but she stated that it had been for at least a year, based on Matney's statement that the pipe started leaking a year ago when a road grader hit it.

Damon Carlton, the system manager for the Water Association, testified that the illegal hookup leaked at a rate of .9 gallons per minute. On cross-examination, he testified that he only dug up five to six feet of the water line just to unhook it; however, on redirect, he opined that the hookup was supplying water to Matney's property. He also testified that a road grader could not have damaged the meter because the road grader would have had to break off the entire top of the actual meter to get the lid off.

Matney testified in her own defense, denied that she was receiving water from the city, and asserted that her water comes from a well on her property. When confronted about the pipes on her land, she stated that the line was capped and agreed to allow an inspection of the pipes on her land. The trial court then took a recess to conduct an inspection.

Once court reconvened, the State recalled Carlton to the witness stand. He testified that he went to where Matney stated the line was capped and found the line. He also found another line next to it that was capped. The second line came within a foot of Matney's well line and was capped on that end as well. Carlton testified that the plumbing around the well was freshly done and that Matney could obtain water from the Water Association in a matter of minutes. Carlton opined that the line had been recently severed.

Matney took the stand again, stated that the pipes by her well were recently replaced,and entered into evidence a copy of a $183.81 check payable to the White Rive Pump Company as proof that she had the pipes replaced. She testified that she never hooked the water line into the well that runs to her house. She also claimed that when her son was living in the trailer on her property that he would use a hose to get water from the well to his trailer. The court found Matney guilty of theft of services, sentenced her to sixty months probation, and ordered her to pay $2735.60 in restitution.

Normally, we consider a challenge to the sufficiency of the evidence before considering any other argument on appeal. See Whisenant v. State, 85 Ark. App. 111, 146 S.W.3d 359 (2004). However, we cannot address the sufficiency of the evidence in this case. In her pro se brief, Matney identifies the sufficiency of the evidence as one of her points on appeal. However, she fails to argue why the evidence was insufficient. She only addresses the alleged ineffective counsel. The failure to develop a point legally or factually is reason enough to affirm the trial court. Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003). See also Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000) (declaring an argument abandoned on appeal when appellant mentioned in the points on appeal but made no argument regarding it).

Next, Matney argues that her counsel was ineffective. She alleges that her counsel failed to conduct adequate pretrial discovery or investigation and failed to subpoena a witness that would have helped her case. She also has objections to the date the trial was set and her signed jury waiver; however, these arguments are not fully developed to determine what her contentions are.

We also cannot address this issue. In the addendum to her pro se brief, Matney provided a "Motion for New Trial." It is captioned "In the Circuit Court of Pulaski Courty [sic], Arkansas, Second Division," but has the case number CACR 04-119, the case number of the case before us, not the case at trial. The motion does not have a certificate of serviceattached. No copy of the motion can be found in the record. If Matney wanted the lower court to consider the motion for a new trial due to ineffective assistance of counsel, her remedy would have been under Rule 33.3 of the Arkansas Rules of Criminal Procedure, which requires that the motion be filed in the trial court within thirty days after the date of the entry of judgment. Without action below, we are precluded from addressing the issue. See Rikard v. State, 354 Ark. 345, 123 S.W.3d 114 (2003). At this point, Matney's remedy lies in Rule 37.1 of the Arkansas Rules of Criminal Procedure. See also Looney v. State, 32 Ark. App. 191, 798 S.W.2d 452 (1990) (decision prior to 1990 amendment).

Affirmed.

Vaught and Crabtree, JJ., agree.

1 Matney was represented by counsel at trial. This court granted her motion to proceed pro se on February 18, 2004.

2 Matney's abstract failed to meet the requirements of Ark. Sup. Ct. R. 4-2(a)(5) (2004), in that she summarizes the testimony and uses the third person rather than the first person in abstracting the testimony. However, we are lenient on pro se appellants when it comes to abstracting. See Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986); Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979).