Break the news out I've got to get out
Oh I'm feeling better now
Bird York - Save Me Lyrics
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In the afternoon
she sits and waits for him to come
two swollen ankles count the time
Nervous fingers trace
across the cold linoleum
the kitchen wall receives her sigh
"Oh, can you hear me, Joe?"
she tries to call across the veil
Her lips are trembling now
can't hear his voice , can't feel him near
she says "Save me, save me
why don't you save me from the pain of losing you
Save me, save me
why don't you save me from this hell I'm going through"
The dinner table looks so strange without him sitting there
the bed is empty on his side
for forty years this house has held the fire of love they shared
but now the garden slowly dies
He said he'd never leave her alone to face the day
What kind of God is this that'll take him back
and make her stay
"Save me, save me
why don't you save me from the pain of losing you
save me, save me
why don't you save me from this hell I'm going through?
The kids try to come around,
try to make some time to see me,
I know, the busy lives they lead
keep them from these memories"
Thursday, October 1, 2009
Wednesday, January 14, 2009
Legally trained is equal to legally competent?
Break the news out I've got to get out
Oh I'm feeling better now......
Oh I'm feeling better now......
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BELINDA MONTOYA, Appellant, THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court of Nueces County, Texas
MEMORANDUM OPINION ON REHEARING The State has filed a motion for rehearing in which it requests that we affirm the judgment of the trial court or, alternatively, reform our previous opinion in this cause. We grant, in part, the State's motion for rehearing. We withdraw our opinion and judgment of June 7, 2007 and substitute this opinion and judgment in their place. In all other respects, the State's motion for rehearing is denied, as is the State's motion for rehearing en banc. Appellant, Belinda Montoya, pleaded guilty, without a plea bargain agreement, (1) to the offense of cocaine possession. The trial court sentenced her to fourteen months in state jail. By one issue, appellant asserts the court failed to inquire into her mental competency after the issue was sufficiently raised. (2) We abate and remand. The question before us is whether evidence came to the trial court's attention suggesting that appellant may have been incompetent to stand trial. If this occurred, then the trial court was required, sua sponte, to determine by informal inquiry whether there was some evidence from any source that would support a finding that appellant may have been incompetent to stand trial. The record suggests that appellant may not have had the ability to fully understand the proceedings against her. During the plea hearing, the trial court questioned appellant about whether she understood the consequences of pleading guilty without the benefit of a plea bargain agreement. As shown by the following exchange, appellant's answers to the judge's questions were not always responsive and coherent: Court: Ma'am, I'm told there is no plea bargain agreement in your case. Do you fully understand and are you aware of the consequences of entering a plea of guilty without the benefit and protection of a plea bargain agreement? Defense Counsel: Do you understand the full range of punishment is up to two years or six months in the State Jail? Appellant: Oh, I understand that, yes. Court: All right. I'm glad you understand the range of punishment, but what I'm asking you is do you understand the consequences, what it means and what can happen to you in entering a plea of guilty without the benefit and the protection of a plea bargain agreement? Appellant: Do I understand? Court: Yes. Appellant: Is that what we talked about? Defense Counsel: Yes, that the Judge has--can sentence you anywhere from probation up to two years in the State Jail facility. Appellant answered affirmatively. After the court explained to her the consequences of pleading guilty without the benefit of a plea bargain agreement, the following exchange occurred: Court: Okay. So do you understand the consequences of entering a plea of guilty without the benefit and protection of a plea bargain agreement? Appellant: Yes. Court: Okay. Do you want to proceed? Defense Counsel: Continue? Appellant: Continue? Court: Yes, you want to continue? Appellant: Yes. After accepting her guilty plea, the court heard punishment evidence. Defense counsel offered the testimony of appellant and her sister, Michelle Montoya. Appellant testified that she had cirrhosis and Hepatitis C. She said her life expectancy was "[s]ix months to a year . . . ." She took four medications: lactose; Hypertone; Nexium; and Lasix. She also received a monthly infusion of white blood cells. Defense counsel asked her about the effects of her illnesses and the side effects of her medications as follows: Counsel: Now some of the side effects you suffer from your medication and from your illness, is depression one of them? Appellant: I guess you could say that and I get delusional. I don't know where I'm at. I go into a sleeping coma. I just don't know where I'm at, don't--I fall asleep anywhere. I don't know. Just different things. Counsel: Forgetfulness? Appellant: That, too. Counsel: Do you have any regression? Appellant: What do you mean? Counsel: Do you regress back to your childhood? Appellant: Yes, I act like a little kid. Counsel: Drowsiness? Appellant: Yes, I sleep a lot. Counsel: Weakness? Appellant: Yes. Counsel: And is it during this period that- Appellant: The only time I feel okay is when I have the white blood cells. Counsel: And could this have been one of the reasons for doing cocaine is when you were depressed? Appellant: Yes, . . . . Counsel: And last night you tried to get yourself into the Emergency Room? Appellant: Right. Well, they released me this morning about nine o'clock. Counsel: And- Appellant: No, not even nine o'clock. It was maybe, like, ten-something, eleven. . . . Counsel: What was your medical complaint? Appellant: My headaches and without--I had ran out of my medication, so I have to go redo that and when I don't take my medicine, I just get these real bad headaches and I go back into that stage again. Appellant's sister testified that appellant gets real sick. She's really sick. She's- There's times that she, you know, she doesn't know what she's doing, that she needs constant care, and they're trying to get that for her. They're trying to get a provider for her because she's not well and she looks well right now. The days that we see her, she's not. She's like a little kid. We have to get her dressed. We have to sit her down to try to take her medicine and then we have to constantly care, need constant care for her. The court made no suggestion that appellant may be incompetent to stand trial. Further, the court made no determination by informal inquiry or otherwise whether there was some evidence from any source that would support a finding that appellant may be incompetent to stand trial. The code of criminal procedure prohibits a trial court from accepting a guilty plea "unless it appears that the defendant is mentally competent. . . ." Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2006). A defendant must also be mentally competent to be sentenced. See Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996) (stating that sentencing is part of trial and competency considerations apply); see also Tex. Code Crim. Proc. Ann. art. 42.07, § 2 (Vernon 2006). Article 46B.003 provides that a person is incompetent to stand trial if he or she does not have: "(1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1) & (2) (Vernon 2006). A person is presumed competent to stand trial and shall be found competent to stand trial unless proven incompetent by a preponderance of the evidence. Id. art. 46B.003(b). Article 46B.004 states how the competency issue can be raised. The statute provides, in relevant part: "If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial." Id. art. 46B.004(b). On suggestion that the defendant may be incompetent to stand trial, subsection (c) states that "the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." Id. art. 46B.004(c). (3) In other words, if, under subsection (b), evidence comes to the trial court's attention suggesting that the defendant may be incompetent to stand trial, then, under subsection (c), the trial court is required to determine by informal inquiry whether there is some evidence that would support a finding that the defendant may be incompetent to stand trial. Id.; Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.–Fort Worth 2005, pet. ref'd); cf., Kuyava. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976) (unless an issue is made of an accused's present insanity or mental competency at time of plea, the court need not make inquiry or hear evidence on such issue); Godoy v. State, 122 S.W.3d 315, 320 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (same). A trial judge must conduct a competency inquiry (before the bench) only if sufficient evidence exists to create a bona fide doubt in the judge's mind whether the accused meets the test of legal competence. See Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001); Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). Recently, in Salahud-Din v. State, 206 S.W.3d 203 (Tex. App.–Corpus Christi 2006, pet. ref'd), we stated: Evidence sufficient to prompt a competency hearing or inquiry must raise a "bona fide doubt" in the mind of the trial judge as to the defendant's competency to stand trial; a bona fide doubt exists if the evidence indicates recent severe mental illness, or at least moderate mental retardation, or truly bizarre acts by the defendant. Id. at 208 (citing Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997)); See Moore, 999 S.W.2d at 395 (to raise competency issue by means of accused's past mental health history, there generally must be evidence of recent, severe mental illness or bizarre acts by the defendant or moderate retardation). We review a trial court's failure to conduct a competency inquiry under an abuse of discretion standard. Moore, 999 S.W.2d at 393; LaHood v. State, 171 S.W.3d 613, 617-18 (Tex. App.–Houston [14th Dist.] 2005, no pet.). A trial court abuses its discretion if its decision is arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Lawrence, 169 S.W.3d at 322. Appellant's testimony showed that the side effects from her illnesses and medications caused her not to know where she was at, to act like a little kid, to be forgetful, weak, drowsy, delusional, depressed, and to go into a sleeping coma. The night before the plea hearing, she went to the emergency room because she ran out of medication. She had trouble remembering what time she left the emergency room. Her sister's testimony showed that appellant was "really sick" and that there were times when appellant did not know what she was doing. She also said, "The days that we see [appellant] . . . [s]he's like a little kid. We have to get her dressed. We have to sit her down to try to take her medicine and then we have to constantly care, need constant care for her." Further evidence suggesting appellant may have been incompetent to stand trial appeared when the court was trying to determine if she understood the consequences of pleading guilty without the benefit of a plea bargain agreement. When the court asked her, "[D]o you understand the consequences, what it means and what can happen to you in entering a plea of guilty without the benefit and the protection of a plea bargain agreement?", she said, "Do I understand?" and "Is that what we talked about?" After she made these remarks, the trial court explained the consequences of pleading guilty without the benefit of a plea bargain agreement. When the court asked her, "So do you understand the consequences of entering a plea of guilty without the benefit and protection of a plea bargain agreement?", she answered affirmatively. However, when the court asked her if she wanted to proceed, she did not respond. Instead, defense counsel asked her, "Continue?", and she replied, "Continue?" When the court asked her, "Yes, you want to continue?", she finally answered in the affirmative. We conclude the evidence demonstrated recent, severe mental illness, or at least moderate mental retardation, or truly bizarre acts by appellant. We find particularly troublesome the evidence showing that appellant had experienced instances when she was delusional, did not know where she was at or what she was doing, and acted like a "little kid". The evidence showed appellant did not have a rational as well as factual understanding of the proceedings against her. See Tex. Code Crim. Proc. Ann. art. 46B.003(a)(2) (Vernon 2006). Accordingly, the evidence was sufficient to prompt a competency inquiry because it met the threshold stated in Salahud-Din and should have raised a bone fide doubt in the judge's mind regarding appellant's competency to stand trial. See Salahud-Din, 206 S.W.3d at 208. We hold that because evidence came to the trial court's attention suggesting appellant may have been incompetent to stand trial, the court abused its discretion by failing, sua sponte, to determine by informal inquiry whether there was some evidence from any source that would support a finding that appellant was incompetent to stand trial. The issue is sustained. We abate the trial court's judgment and remand the case for proceedings consistent with this opinion. See Casey, 924 S.W.2d at 949; Brown v. State, 871 S.W.2d 852, 860 (Tex. App.-Corpus Christi 1994, pet. ref'd).
ROSE VELA Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 1st day of November, 2007. 1. In the "Amended Trial Court's Certification of Defendant's Right of Appeal" the trial court certified that "this criminal case: is not a plea bargain case, and the Defendant has the right of appeal." 3. If, after an informal inquiry, the court determines that evidence exists to support a finding of incompetency, the court shall order an examination to determine whether the defendant is incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.005(a) (Vernon 2006). Furthermore, generally, if the court determines that evidence exists to support a finding of incompetency, the court shall hold a hearing before determining whether the defendant is incompetent to stand trial, and, on the request of either party or on the court's motion, a jury shall make the determination as to whether the defendant is incompetent. Id. arts. 46B.005(b), 46B.051. | |
Monday, May 5, 2008
The State responded that it had no such evidence in its custody or control.
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NUMBER 13-02-169-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WILLIAM RAY GEARHART, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Rodriguez and Castillo
Opinion by Justice Castillo
The State indicted William Ray Gearhart, appellant, as a repeat felony offender for assaulting a public servant. Footnote On March 5, 2002, a jury convicted Gearhart and sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Gearhart's appeal is frivolous and without merit. We affirm.
I. BACKGROUND
Gearhart filed a pro se notice of appeal on March 8, 2002. In the notice, Gearhart complained about his trial counsel's representation. He asked the trial court to appoint appellate counsel to represent him. The trial court appointed new counsel for him on appeal. Gearhart's appellate counsel filed a brief in which counsel concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967).
II. APPLICABLE APPELLATE RULES
The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Gearhart's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on December 10, 2003 that includes the trial court's certification that Gearhart has the right of appeal. We now turn to the merits.
III. DISPOSITION
A. Anders Brief
Gearhart's original court-appointed appellate counsel filed a brief in which he concludes that this appeal is frivolous. See Anders, 386 U.S. at 744-45. Counsel certifies: (1) he diligently reviewed the record for reversible error; (2) he was unable to find any error that would arguably require reversal of the trial court's judgment; (3) in his opinion, the appeal is without merit; (4) he served a copy of the brief on Gearhart; and (5) he informed Gearhart of his right to review a complete copy of the appellate record and file a pro se brief on his own behalf. See Anders, 386 U.S. at 744-45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).
An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). With relevant citation to legal precedent and the record, counsel professionally evaluates the indictment, pre-trial motions, voir dire, opening statements, sufficiency of the evidence, jury charge, closing argument, and punishment phase. Arguable grounds of error should be advanced by counsel as required by Anders, if there are any. See id. However, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See id. We hold that counsel's brief is not the “conclusory statement” decried by Anders. See id.
In response to counsel's brief, Gearhart filed a pro se brief. Gearhart's original appointed counsel withdrew while this appeal was pending. The trial court appointed substitute appellate counsel.
B. Pro Se Brief
Gearhart asserts he was falsely accused of assaulting a public servant, a police officer with the Kingsville Police Department. He maintains that after he filed an internal affairs complaint regarding the incident, he was retaliated against when the State arrested him again for filing a false report and charged him with aggravated perjury. Generally, Gearhart challenges the sufficiency of the evidence to support his conviction. He claims he was attacked, without provocation, by two Kingsville police officers. He denies he attacked one of the officers first. He cites to purported inconsistencies in the testimony at trial in support of his position. Gearhart also claims that the State did not present evidence of his prior conviction for assault on a public servant to support his conviction and resulting enhanced punishment as a repeat felony offender.
Gearhart also complains his trial counsel was ineffective. He argues that his trial counsel did not subpoena the videotape from the arresting officer's squad car or the audiotapes of an emergency call made by a witness, a clerk at the convenience store where the altercation took place. The tapes, Gearhart asserts, would have substantiated his version of events. Gearhart also alleges his counsel was ineffective by not objecting to the jury. He claims that jurors who indicated in voir dire they knew the prosecutor or his family ended up on the jury and that his trial counsel permitted venire members to remain on the jury despite Gearhart's instructions to the contrary. Further, Gearhart alleges his trial counsel was ineffective by not delivering a closing argument that challenged the testimony of the officer about an injury that the officer had not included in his original report of the incident. Finally, Gearhart complains that his trial counsel made an inappropriate remark to the prosecutor, after the jury retired to deliberate, reflecting counsel's belief that the jury would find Gearhart guilty.
C. Independent Review of the Record
Since this is an Anders case, we independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christ 2002, no pet.).
1. The Indictment
The indictment properly alleges the offense of assault of a public servant. See Tex. Pen. Code Ann. § 22.01(a)(1), (b), (d) (Vernon 2003). It also properly alleges three prior offenses as repeat felony offender enhancement. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon 2003). Even if errors did exist in the indictment, the error could not be raised on appeal because Gearhart did not file a pre-trial motion alleging any error in the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 1977); Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). We find no arguable error in the indictment.
2. Pre-Trial Motions
The record reflects that the trial court heard Gearhart's discovery motion regarding production of the videotape from the arresting officer's squad car and any audiotape of the emergency call made by the convenience store clerk. The State responded that it had no such evidence in its custody or control. The trial court ruled it would permit Gearhart to subpoena any relevant videotapes or audiotapes for trial. Thus, the record reflects that the trial court did not make any ruling adverse to Gearhart. See Tex. R. App. P. 33.1. We find no arguable error in the trial court's pre-trial rulings.
3. Voir Dire
A review of the voir dire examination shows that sixteen venire members knew the prosecutor, a long-time resident of Kingsville, or his family. They all indicated they would consider the facts of the case and not base their decision on their knowledge of the prosecutor or his family. Neither the State nor Gearhart raised any challenge for cause. Thus, the trial court could not have erroneously ruled. See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001); see also Allen v. State, 54 S.W.3d 427, 428 (Tex. App.–Waco 2001, pet. ref'd). Further, the trial court did not limit Gearhart's questioning of the jury. See Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). We find no arguable error in voir dire.
4. Opening Statements
As a general rule, to preserve error for appellate review, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Each side presented opening statements. Neither side objected to the other's. Gearhart thus waived any error in the prosecution's opening statement. See Limas v. State, 941 S.W.2d 198, 203 (Tex. App.–Corpus Christi 1996, pet. ref'd) (finding waiver for failure to object to prosecutor's closing argument). We find no arguable error in the prosecution's opening statement.
5. Sufficiency of the Evidence
a. Standards of Review
(1) Legal Sufficiency
A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).
In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, J., concurring); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.
If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.
(2) Factual Sufficiency
We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet. ref'd). We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).
In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id.
We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.
Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Swearingen, 101 S.W.3d at 97. Which standard applies generally depends on whether the complaining party had the burden of proof at trial. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). If the accused did not have the burden of proof at trial, then the first or "manifestly unjust" standard applies. Id. If the accused had the burden of proof at trial, then the second or "against the great weight and preponderance" standard applies. Id.
In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.
b. Sufficiency Analysis
(1) Legal Sufficiency
Viewing the evidence in the light most favorable to the prosecution and measuring it against a hypothetically correct jury charge, we find that the arresting officer testified to each of the elements of the offense of assault of a public servant. Gearhart struck the uniformed officer while the officer was in the process of detaining him in response to a public-disturbance complaint. Gearhart's assault bruised the officer and chipped his tooth. The convenience store clerk corroborated the officer's testimony. Gearhart stipulated in open court, in the presence of counsel, to the prior felony conviction, also for assault on a public servant. Viewing the relevant evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime, including the repeat felony offender allegation. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7.
(2) Factual Sufficiency
We view all the evidence neutrally, favoring neither the State nor Gearhart, and measure it against a hypothetically correct jury charge. Johnson, 23 S.W.3d at 6-7; Adi, 94 S.W.3d at 131. In addition to the arresting officer and convenience store clerk's testimony, Gearhart testified in his own defense. He admitted he had been drinking and had gotten into a disagreement with the clerk about getting free matches from the store. He admitted he had marijuana in his pocket. He denied assaulting the officer, however. Rather, he said the officer who testified and a second officer assaulted him without provocation. Finally, Gearhart admitted he had been convicted before for assaulting a public servant, although he stressed that the public servant he assaulted that time was a corrections officer, not a police officer. Viewing the relevant evidence in a neutral light, favoring neither the prosecution nor Gearhart, and with appropriate deference to the jury's credibility determinations, we conclude that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 6-7.
Accordingly, we find no arguable legal or factual insufficiency of the evidence. 6. The Charge
Gearhart did not object to the charge. Thus, to be reversible, any error would have to constitute egregious harm. Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1985) (op. on reh'g). We find no arguable egregious error in the charge. 7. Closing Argument
Neither party objected to the other's closing argument. Thus, Gearhart waived any error. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Limas, 941 S.W.2d at 203. We find no arguable error in the prosecutor's jury argument.
8. Punishment Phase
The record shows that Gearhart stipulated to the prior felony assault of a public servant in the culpability phase of the trial, which evidence supported his enhanced punishment as a repeat felony offender. To preserve any error in the punishment phase, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Gearhart did not object at sentencing on any basis. We find that he waived any challenge to the sentence imposed by the jury. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced during the trial. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). We find no arguable error in the sentencing proceedings.
9. Ineffective Assistance of Counsel
The record contains no evidentiary support for Gearhart's claims of ineffective assistance of counsel. When the alleged ineffectiveness asserted by a defendant occurs outside of the record, the proper vehicle for a complaint is a collateral attack that permits the development of facts concerning the alleged errors of counsel. Jackson v. State, 877 S.W.2d 768, 773 (Tex. Crim. App. 1994).
Accordingly, our independent review of the record finds that Gearhart's appeal is frivolous. We conclude that this appeal is without merit. See Penson, 488 U.S. at 80; see also Martin v. State, No. 13-02-118-CR, 2003 Tex. App. LEXIS 10181, at *3 (Tex. App.–Corpus Christi Dec. 4, 2003, no pet. h.). We affirm the judgment and sentence of the trial court.
D. Motion to Withdraw
An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (noting that Anders brief should be filed with request for withdrawal from case). Substitute appellate counsel in this case has not requested to withdraw from further representation of Gearhart on appeal. We hereby order counsel to advise Gearhart promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court within ten days of the date of this opinion. See Martin, 2003 Tex. App. LEXIS 10181, at *4.
ERRLINDA CASTILLO
Justice
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 11th day of December 2003.
sotseal6.gif
NUMBER 13-02-169-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WILLIAM RAY GEARHART, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Rodriguez and Castillo
Opinion by Justice Castillo
The State indicted William Ray Gearhart, appellant, as a repeat felony offender for assaulting a public servant. Footnote On March 5, 2002, a jury convicted Gearhart and sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Gearhart's appeal is frivolous and without merit. We affirm.
I. BACKGROUND
Gearhart filed a pro se notice of appeal on March 8, 2002. In the notice, Gearhart complained about his trial counsel's representation. He asked the trial court to appoint appellate counsel to represent him. The trial court appointed new counsel for him on appeal. Gearhart's appellate counsel filed a brief in which counsel concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967).
II. APPLICABLE APPELLATE RULES
The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Gearhart's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on December 10, 2003 that includes the trial court's certification that Gearhart has the right of appeal. We now turn to the merits.
III. DISPOSITION
A. Anders Brief
Gearhart's original court-appointed appellate counsel filed a brief in which he concludes that this appeal is frivolous. See Anders, 386 U.S. at 744-45. Counsel certifies: (1) he diligently reviewed the record for reversible error; (2) he was unable to find any error that would arguably require reversal of the trial court's judgment; (3) in his opinion, the appeal is without merit; (4) he served a copy of the brief on Gearhart; and (5) he informed Gearhart of his right to review a complete copy of the appellate record and file a pro se brief on his own behalf. See Anders, 386 U.S. at 744-45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).
An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). With relevant citation to legal precedent and the record, counsel professionally evaluates the indictment, pre-trial motions, voir dire, opening statements, sufficiency of the evidence, jury charge, closing argument, and punishment phase. Arguable grounds of error should be advanced by counsel as required by Anders, if there are any. See id. However, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See id. We hold that counsel's brief is not the “conclusory statement” decried by Anders. See id.
In response to counsel's brief, Gearhart filed a pro se brief. Gearhart's original appointed counsel withdrew while this appeal was pending. The trial court appointed substitute appellate counsel.
B. Pro Se Brief
Gearhart asserts he was falsely accused of assaulting a public servant, a police officer with the Kingsville Police Department. He maintains that after he filed an internal affairs complaint regarding the incident, he was retaliated against when the State arrested him again for filing a false report and charged him with aggravated perjury. Generally, Gearhart challenges the sufficiency of the evidence to support his conviction. He claims he was attacked, without provocation, by two Kingsville police officers. He denies he attacked one of the officers first. He cites to purported inconsistencies in the testimony at trial in support of his position. Gearhart also claims that the State did not present evidence of his prior conviction for assault on a public servant to support his conviction and resulting enhanced punishment as a repeat felony offender.
Gearhart also complains his trial counsel was ineffective. He argues that his trial counsel did not subpoena the videotape from the arresting officer's squad car or the audiotapes of an emergency call made by a witness, a clerk at the convenience store where the altercation took place. The tapes, Gearhart asserts, would have substantiated his version of events. Gearhart also alleges his counsel was ineffective by not objecting to the jury. He claims that jurors who indicated in voir dire they knew the prosecutor or his family ended up on the jury and that his trial counsel permitted venire members to remain on the jury despite Gearhart's instructions to the contrary. Further, Gearhart alleges his trial counsel was ineffective by not delivering a closing argument that challenged the testimony of the officer about an injury that the officer had not included in his original report of the incident. Finally, Gearhart complains that his trial counsel made an inappropriate remark to the prosecutor, after the jury retired to deliberate, reflecting counsel's belief that the jury would find Gearhart guilty.
C. Independent Review of the Record
Since this is an Anders case, we independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christ 2002, no pet.).
1. The Indictment
The indictment properly alleges the offense of assault of a public servant. See Tex. Pen. Code Ann. § 22.01(a)(1), (b), (d) (Vernon 2003). It also properly alleges three prior offenses as repeat felony offender enhancement. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon 2003). Even if errors did exist in the indictment, the error could not be raised on appeal because Gearhart did not file a pre-trial motion alleging any error in the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 1977); Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). We find no arguable error in the indictment.
2. Pre-Trial Motions
The record reflects that the trial court heard Gearhart's discovery motion regarding production of the videotape from the arresting officer's squad car and any audiotape of the emergency call made by the convenience store clerk. The State responded that it had no such evidence in its custody or control. The trial court ruled it would permit Gearhart to subpoena any relevant videotapes or audiotapes for trial. Thus, the record reflects that the trial court did not make any ruling adverse to Gearhart. See Tex. R. App. P. 33.1. We find no arguable error in the trial court's pre-trial rulings.
3. Voir Dire
A review of the voir dire examination shows that sixteen venire members knew the prosecutor, a long-time resident of Kingsville, or his family. They all indicated they would consider the facts of the case and not base their decision on their knowledge of the prosecutor or his family. Neither the State nor Gearhart raised any challenge for cause. Thus, the trial court could not have erroneously ruled. See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001); see also Allen v. State, 54 S.W.3d 427, 428 (Tex. App.–Waco 2001, pet. ref'd). Further, the trial court did not limit Gearhart's questioning of the jury. See Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). We find no arguable error in voir dire.
4. Opening Statements
As a general rule, to preserve error for appellate review, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Each side presented opening statements. Neither side objected to the other's. Gearhart thus waived any error in the prosecution's opening statement. See Limas v. State, 941 S.W.2d 198, 203 (Tex. App.–Corpus Christi 1996, pet. ref'd) (finding waiver for failure to object to prosecutor's closing argument). We find no arguable error in the prosecution's opening statement.
5. Sufficiency of the Evidence
a. Standards of Review
(1) Legal Sufficiency
A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).
In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, J., concurring); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.
If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.
(2) Factual Sufficiency
We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet. ref'd). We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).
In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id.
We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.
Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Swearingen, 101 S.W.3d at 97. Which standard applies generally depends on whether the complaining party had the burden of proof at trial. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). If the accused did not have the burden of proof at trial, then the first or "manifestly unjust" standard applies. Id. If the accused had the burden of proof at trial, then the second or "against the great weight and preponderance" standard applies. Id.
In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.
b. Sufficiency Analysis
(1) Legal Sufficiency
Viewing the evidence in the light most favorable to the prosecution and measuring it against a hypothetically correct jury charge, we find that the arresting officer testified to each of the elements of the offense of assault of a public servant. Gearhart struck the uniformed officer while the officer was in the process of detaining him in response to a public-disturbance complaint. Gearhart's assault bruised the officer and chipped his tooth. The convenience store clerk corroborated the officer's testimony. Gearhart stipulated in open court, in the presence of counsel, to the prior felony conviction, also for assault on a public servant. Viewing the relevant evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime, including the repeat felony offender allegation. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7.
(2) Factual Sufficiency
We view all the evidence neutrally, favoring neither the State nor Gearhart, and measure it against a hypothetically correct jury charge. Johnson, 23 S.W.3d at 6-7; Adi, 94 S.W.3d at 131. In addition to the arresting officer and convenience store clerk's testimony, Gearhart testified in his own defense. He admitted he had been drinking and had gotten into a disagreement with the clerk about getting free matches from the store. He admitted he had marijuana in his pocket. He denied assaulting the officer, however. Rather, he said the officer who testified and a second officer assaulted him without provocation. Finally, Gearhart admitted he had been convicted before for assaulting a public servant, although he stressed that the public servant he assaulted that time was a corrections officer, not a police officer. Viewing the relevant evidence in a neutral light, favoring neither the prosecution nor Gearhart, and with appropriate deference to the jury's credibility determinations, we conclude that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 6-7.
Accordingly, we find no arguable legal or factual insufficiency of the evidence. 6. The Charge
Gearhart did not object to the charge. Thus, to be reversible, any error would have to constitute egregious harm. Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1985) (op. on reh'g). We find no arguable egregious error in the charge. 7. Closing Argument
Neither party objected to the other's closing argument. Thus, Gearhart waived any error. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Limas, 941 S.W.2d at 203. We find no arguable error in the prosecutor's jury argument.
8. Punishment Phase
The record shows that Gearhart stipulated to the prior felony assault of a public servant in the culpability phase of the trial, which evidence supported his enhanced punishment as a repeat felony offender. To preserve any error in the punishment phase, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Gearhart did not object at sentencing on any basis. We find that he waived any challenge to the sentence imposed by the jury. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced during the trial. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). We find no arguable error in the sentencing proceedings.
9. Ineffective Assistance of Counsel
The record contains no evidentiary support for Gearhart's claims of ineffective assistance of counsel. When the alleged ineffectiveness asserted by a defendant occurs outside of the record, the proper vehicle for a complaint is a collateral attack that permits the development of facts concerning the alleged errors of counsel. Jackson v. State, 877 S.W.2d 768, 773 (Tex. Crim. App. 1994).
Accordingly, our independent review of the record finds that Gearhart's appeal is frivolous. We conclude that this appeal is without merit. See Penson, 488 U.S. at 80; see also Martin v. State, No. 13-02-118-CR, 2003 Tex. App. LEXIS 10181, at *3 (Tex. App.–Corpus Christi Dec. 4, 2003, no pet. h.). We affirm the judgment and sentence of the trial court.
D. Motion to Withdraw
An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (noting that Anders brief should be filed with request for withdrawal from case). Substitute appellate counsel in this case has not requested to withdraw from further representation of Gearhart on appeal. We hereby order counsel to advise Gearhart promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court within ten days of the date of this opinion. See Martin, 2003 Tex. App. LEXIS 10181, at *4.
ERRLINDA CASTILLO
Justice
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 11th day of December 2003.
Friday, October 26, 2007
SCOTUS~"So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be d...
Break the news out I've got to get out
Oh I'm feeling better now
Judicial review is the power of a court to review the actions of public sector bodies in terms of their constitutionality. In some jurisdictions it is also possible to review the constitutionality of the law itself.
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"this is the future" — ayranne wass
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Wednesbury unreasonableness
In English law, Wednesbury unreasonableness is unreasonableness of an administrative decision that is so extreme that courts may intervene to correct it. The term derives from Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223, where the court stated that it would only intervene to correct a bad administrative decision on grounds of its unreasonableness if the decision was, as articulated in Council of Civil Service Unions v. Minister for the Civil Service (the GCHQ case) [1985] AC 374, 410 per Lord Diplock, "So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
Contents
[hide]
* 1 Facts of the case
* 2 Use of this case
* 3 See also
* 4 External links
[edit] Facts of the case
"Associated Provincial Picture Houses" were granted a licence by the defendant local authority to operate a cinema on condition that no children under 15 were admitted to the cinema on Sundays. The claimants sought a declaration that such a condition was unacceptable, and outside the power of the Wednesbury Corporation to impose.
The court held that it could not intervene to overturn the decision of the defendant corporation simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that:
* the corporation, in making that decision, took into account factors that ought not to have been taken into account, or
* the corporation failed to take account factors that ought to have been taken into account, or
* the decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld.
[edit] Use of this case
The test laid down in this case, in all three limbs, is known as "the Wednesbury test". The term "Wednesbury unreasonableness" is used to describe the third limb, of being so unreasonable that no reasonable authority could have decided that way. This case or the principle laid down is cited in United Kingdom courts as a reason for courts to be hesitant to interfere into the decisions of administrative law bodies.
In recent times, particularly as a result of the enactment of the Human Rights Act 1998, the judiciary have resiled from this strict abstentionist approach, recognising that in certain circumstances it is necessary for them to undertake a more searching review of administrative decisions. Indeed, the European Court of Human Rights now require the reviewing court to subject the original decision to "anxious scrutiny" when an administrative measure infinges a Convention right. In order to justify such an intrusion, the Respondents will have to show that it pursued a "pressing social need" and that the means employed to achieve this were proportionate to the limitation of the right.
[edit] See also
* Compare: patently unreasonable, fairness, fundamental justice and due process.
* In the United States, a similarly dominant case is Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
[edit] External links
* Associated Provincial Picture Houses Ltd v. Wednesbury Corporation
Retrieved from "http://en.wikipedia.org/wiki/Wednesbury_unreasonableness"
Categories: 1948 in law | 1948 in England | English law | United Kingdom administrative law | Common law rules
Powered by MediaWiki
Wikimedia Foundation
Oh I'm feeling better now
Judicial review is the power of a court to review the actions of public sector bodies in terms of their constitutionality. In some jurisdictions it is also possible to review the constitutionality of the law itself.
Help us spread knowledge worldwide. Donate to Wikimedia!
"this is the future" — ayranne wass
Video
[Hide this message]
[Show more]
Wednesbury unreasonableness
In English law, Wednesbury unreasonableness is unreasonableness of an administrative decision that is so extreme that courts may intervene to correct it. The term derives from Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223, where the court stated that it would only intervene to correct a bad administrative decision on grounds of its unreasonableness if the decision was, as articulated in Council of Civil Service Unions v. Minister for the Civil Service (the GCHQ case) [1985] AC 374, 410 per Lord Diplock, "So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
Contents
[hide]
* 1 Facts of the case
* 2 Use of this case
* 3 See also
* 4 External links
[edit] Facts of the case
"Associated Provincial Picture Houses" were granted a licence by the defendant local authority to operate a cinema on condition that no children under 15 were admitted to the cinema on Sundays. The claimants sought a declaration that such a condition was unacceptable, and outside the power of the Wednesbury Corporation to impose.
The court held that it could not intervene to overturn the decision of the defendant corporation simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that:
* the corporation, in making that decision, took into account factors that ought not to have been taken into account, or
* the corporation failed to take account factors that ought to have been taken into account, or
* the decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld.
[edit] Use of this case
The test laid down in this case, in all three limbs, is known as "the Wednesbury test". The term "Wednesbury unreasonableness" is used to describe the third limb, of being so unreasonable that no reasonable authority could have decided that way. This case or the principle laid down is cited in United Kingdom courts as a reason for courts to be hesitant to interfere into the decisions of administrative law bodies.
In recent times, particularly as a result of the enactment of the Human Rights Act 1998, the judiciary have resiled from this strict abstentionist approach, recognising that in certain circumstances it is necessary for them to undertake a more searching review of administrative decisions. Indeed, the European Court of Human Rights now require the reviewing court to subject the original decision to "anxious scrutiny" when an administrative measure infinges a Convention right. In order to justify such an intrusion, the Respondents will have to show that it pursued a "pressing social need" and that the means employed to achieve this were proportionate to the limitation of the right.
[edit] See also
* Compare: patently unreasonable, fairness, fundamental justice and due process.
* In the United States, a similarly dominant case is Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
[edit] External links
* Associated Provincial Picture Houses Ltd v. Wednesbury Corporation
Retrieved from "http://en.wikipedia.org/wiki/Wednesbury_unreasonableness"
Categories: 1948 in law | 1948 in England | English law | United Kingdom administrative law | Common law rules
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