State v. Salazar
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-36659 5 RICKY SALAZAR, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 James M. Hudson, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 L. Helen Bennett P.C. 13 L. Helen Bennett 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 18 {1} Defendant Ricky Salazar appeals from his jury trial convictions for aggravated 19 battery against a household member and criminal trespass in 2001. [DS 2] We issued 1 a notice proposing to summarily affirm, in part, and to summarily dismiss, in part. 2 Defendant filed a memorandum in opposition, pursuant to State v. Franklin 19673 NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 4 ¶ 24, 103 N.M. 655, 712 P.2d 1, which we have duly considered. Remaining 5 unpersuaded, we affirm, in part, and dismiss, in part. 6 {2} Defendant first asserts he received an unfair trial because the jury was not 7 impartial. [DS 5] Reviewing Defendant’s unpreserved claim for fundamental error, 8 we proposed to affirm. [CN 3-4] In his memorandum in opposition, Defendant 9 continues to argue that the single general question asked of the venire panel was 10 insufficient to uncover any prejudice related to the excused prospective juror's 11 statements and to ensure the remaining panel members had not been tainted by those 12 statements. [MIO 3-4] However, Defendant does not explain how this remedial 13 procedure resulted in an unfair trial amounting to fundamental error. “A party 14 responding to a summary calendar notice must come forward and specifically point 15 out errors of law and fact[,]” and the repetition of earlier arguments does not fulfill 16 this requirement. State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 17 P.2d 1003, superseded by statute as stated in State v. Harris, 2013-NMCA-031, 297 18 P.3d 374. We therefore hold Defendant has not demonstrated he received an unfair 19 trial and propose to affirm on that ground. 2 1 {3} Defendant next asserts the district court erred in denying his Rule 5-803 NMRA 2 petition on timeliness grounds. [DS 5] Noting Defendant was self-represented when 3 his petition was filed and denied, and the Duran presumption is not extended to a self4 represented Defendant, we proposed to dismiss Defendant’s appeal from the denial 5 of his Rule 5-803 petition. [CN 6] In his memorandum in opposition, Defendant 6 argues appellate counsel was appointed in recognition of Defendant’s right to appeal 7 his conviction, which he asserts his trial counsel failed to pursue. [MIO 4-5] We 8 understand Defendant to again assert the Duran presumption should apply because he 9 was unable to pursue a direct appeal until now. Indeed, we have indulged Defendant 10 with a Duran presumption in his direct appeal asserting an unfair trial, but Defendant 11 does not explain why the presumption should apply to appeal from denial of his Rule 12 5-803 petition where he was self-represented. Appellate courts are under no obligation 13 to review unclear or undeveloped arguments. See State v. Guerra, 2012-NMSC-014, 14 ¶ 21, 278 P.3d 1031. Defendant also fails to point out specific errors of law and fact. 15 See Mondragon, 1988-NMCA-027, ¶ 10. Therefore, we conclude Defendant’s appeal 16 from the denial of his Rule 5-803 petition was untimely and must be dismissed. 17 {4} Accordingly, for the reasons explained above and in our notice of proposed 18 disposition, we affirm, in part, and dismiss, in part. 19 {5} IT IS SO ORDERED. 3 1 2 M. MONICA ZAMORA, Judge 3 WE CONCUR: 4 5 J. MILES HANISEE, Judge 6 7 HENRY M. BOHNHOFF, Judge 4
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