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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00013-CR ______________________________
JAMES EDWARD PERKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 22889
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
James Edward Perkins sold crack cocaine to a confidential informant and was convicted by a jury for delivery of a controlled substance. The trial court assessed punishment at thirty-five years' imprisonment in the Texas Department of Criminal Justice-Institutional Division. (1)
Perkins contends the evidence is legally insufficient because the testimony of the confidential informant was not sufficiently corroborated. Perkins further contends the trial court erred in admitting evidence, over his objection, that the informant worked successfully in the past on other cases for the police. We affirm the trial court's judgment because (1) sufficient evidence corroborates the confidential informant's testimony; and (2) any error occasioned by improper admission of testimony seeking to explain the confidential informant's demeanor on the witness stand is harmless.
I. FACTUAL AND PROCEDURAL HISTORY
On April 28, 2009, Perkins sold .47 grams of crack cocaine to Taimak Norman, a confidential informant who was acting covertly on behalf of the Paris Police Department. Earlier that day, Norman contacted Leigh Foreman, an officer working in the narcotics division of the Paris Police Department, to advise that he knew a person who was selling crack cocaine. Based upon that information, Foreman met with Norman to arrange for Norman's cocaine purchase.
Prior to the encounter with Perkins, Norman was searched to ensure that he was not carrying any contraband on his person. Foreman then outfitted Norman with a covert audio recording device and provided him with copied currency in order to purchase the crack cocaine. Although the record does not reflect how Norman knew which telephone number to dial, he made a telephone call to an unknown person (2) and made arrangements through that telephone call for the delivery of crack cocaine to Norman's residence. This telephone conversation was recorded by the police and the resulting transaction was videotaped by Foreman (3) from his vantage point atop Noyes Stadium, looking down on the parking lot of Norman's apartment, where the transaction took place. (4)
About forty-five minutes after Norman placed the telephone call, Perkins arrived at Norman's residence, riding as a passenger on a motorcycle driven by someone else. After Perkins alit from the motorcycle, he and Norman engaged in conversation which Foreman described as "dope talk." Perkins asked Norman what he had, and Norman told him "140." Perkins then asked to see the money and, thereafter, the money and drugs were exchanged. Although Foreman could see the parking lot as he recorded the meeting on video, a street sign partially obscured the camera's view of the transaction itself. The video recording, therefore, does not depict the actual exchange of narcotics for money. Foreman was nevertheless able to identify the black male on the video recording as Perkins, and he also identified Perkins in the courtroom as being the individual he observed during the drug transaction.
Upon completion of the transaction, Foreman and fellow officers met with Norman at a predetermined location to recover the cocaine purchased from Perkins and to retrieve the audio recording device worn by Norman. Norman was searched once again, this time to confirm that the only contraband he had on his person was that which had been just recently purchased from Perkins.
As a result of the foregoing events, Perkins was indicted on September 11, 2008, on a charge of delivery of less than one gram of cocaine in a drug-free zone. (5)
The State filed a notice of consolidation and joinder of this charge with another drug charge which arose on a different date, and both matters were tried to a jury. (6)
II. CORROBORATION
Perkins maintains on appeal that there is no evidence to corroborate Norman's testimony.
Article 38.141 of the Texas Code of Criminal Procedure provides:
(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.
Tex. Code Crim. Proc. Ann. art. 38.141(a), (b) (Vernon 2005).
Legal and factual sufficiency standards of review are not applicable to a review of covert witness testimony under Article 38.141 because corroboration of such testimony is a statutorily- required mandate. See Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005). The standard for evaluation of the sufficiency of the corroboration of the testimony of a covert witness is the same as that of the testimony of an accomplice. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008); Brown v. State, 159 S.W.3d 703, 707 (Tex. App.--Texarkana 2004, pet. ref'd); see Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005), for the corroboration required of an accomplice witness.
A challenge of insufficient corroboration of evidence given by a covert witness described in Article 38.141 does not stand on the same plateau as a challenge of insufficient evidence to support the verdict as a whole. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999). Rather, under the test which is applied, we must exclude the testimony of the covert witness from consideration when weighing the sufficiency of corroborating evidence under Article 38.141(a) and examine the remaining evidence to determine whether this evidence is some which "tends to connect" the defendant to the commission of the offense. Malone, 253 S.W.3d at 258. The tends-to-connect standard does not present a high threshold. See Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.--Austin 2002, no pet.).
In determining the quantum of evidence required to corroborate covert agent testimony, each case must be judged on its own facts, and even insignificant circumstances may satisfy the test. Id. Evidence is insufficient to corroborate covert agent testimony if it shows merely that the defendant was present during the commission of the offense. McAfee v. State, 204 S.W.3d 868, 872 (Tex. App.--Corpus Christi 2006, pet. ref'd). Although evidence tending to connect a defendant to an offense may not be sufficient for a conviction, it need not rise to such a high threshold for purposes of corroboration. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). The corroborating evidence must provide "suspicious circumstances" in addition to "mere presence" at the scene of a crime which would tend to rebut that the defendant's presence at the scene of the crime was more than simply "innocent coincidence." McAfee, 204 S.W.3d at 872. With these precepts in mind, we shall examine the evidence to determine whether it tends to connect Perkins with the offenses committed.
The evidence here, absent confidential informant testimony, establishes that: (1) Norman was a willing and cooperative informant acting at Foreman's direction; (2) Norman was searched prior to his meeting with Perkins to ensure that he was not carrying contraband; (3) Foreman provided Norman with $140.00 to purchase narcotics; (4) the recorded telephone call revealed Norman calling someone to make arrangements for the delivery of narcotics to Norman's residence; (5) Foreman fitted Norman with a covert audio recording device prior to Norman's meeting with Perkins; (6) a video recording of the meeting between Norman and Perkins was made by Foreman from his vantage point atop Noyes Stadium; (7) Foreman identified the person with Norman on the video recording as Perkins; (8) Foreman identified Perkins on the audio recording asking Norman "what he has"; (9) Foreman identified Norman on the audio recording telling Perkins he had "140"; (10) Foreman identified Perkins on the audio recording asking to see the "140"; (12) Foreman recovered cocaine from Norman after Perkins left the area.
Here, we have direct eyewitness testimony from a law enforcement agent that tends to establish Perkins's participation in this narcotics transaction. Foreman identified Perkins on the video recording of the meeting and identified Perkins's voice on the audio recording in a conversation capturing the essence of the transaction (i.e., the amount of money Norman was to spend to purchase illicit drugs). All of the above-listed additional evidence is sufficient under the test to supply the requisite corroboration. It is apparent that Perkins's purpose in meeting with Norman was to sell narcotics.
The evidence further shows that Perkins's companion (i.e., the driver of the motorcycle upon which Perkins arrived) did not participate in the conversation between Norman and Perkins. In fact, this unknown driver did not dismount the motorcycle but, rather, simply waited for Perkins to conclude the transaction, after which they both left. In light of the fact that cocaine was recovered from Norman after Perkins's departure, this evidence likewise tends to connect Perkins to the commission of the offense.
Perkins argues that because neither the audio nor video recording of his meeting with Norman depicts the actual exchange of cocaine for money, there is no evidence which tends to connect him to the April 28, 2008, transaction. We do not find it necessary that corroborating evidence under Article 38.141 of the Texas Code of Criminal Procedure depict the actual exchange of money and drugs. If that were the case, the standard for corroborating evidence would rise to the level of establishing guilt beyond a reasonable doubt. Such is not the standard. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (nonaccomplice evidence need not directly link person to crime, nor must it establish guilt beyond a reasonable doubt). As the Texas Court of Criminal Appeals has indicated, in order to corroborate confidential informant testimony, "All the law requires is that there be some [noncovert] evidence which tends to connect the accused to the commission of the offense." Hernandez v. State, 939 S.W.2d 173, 178-79 (Tex. Crim. App. 1997). While each of these circumstances (taken alone) might not be sufficient to corroborate Norman's testimony, the weight of all of them when taken together provides the basis for a rational juror to conclude that this evidence sufficiently tended to connect Perkins to the offense. See id.
Perkins further contends that because Norman went inside the apartment building before Perkins's arrival to visit the bathroom, there was opportunity for Norman to obtain the cocaine from a source other than from Perkins. While it is true that Norman entered the apartment for a brief period of time upon his mother's arrival at home, it is equally plausible that Norman did so in order to quell any suspicion his mother may have had in coming home to find her son standing alone in the parking lot. Foreman testified that when Norman's mother came home, Norman went upstairs and was talking with his mother; her voice was clearly audible on the recorder. Given these circumstances, it is quite unlikely that Norman obtained the cocaine from his own apartment, at the particular time that his mother returned home. The brief visit Norman had with his mother does not detract from the other "suspicious circumstances" which tend to connect Perkins to the offense committed. This possibility does not substantially detract from those suspicious circumstances and would reflect more on the weight the jury could place on the evidence in its deliberations.
III. RELEVANCY
Perkins's second point of error centers on certain testimony elicited from Foreman as follows:
Q. [THE STATE] And are there any defendants -- do you have any information whether or not there's anyone that's causing Mr. Norman some concern right now?
A. [FOREMAN] Yes.
Q. And what is that information?
[DEFENSE COUNSEL]: Objection, relevancy, Your Honor.
THE COURT: What is the relevancy?
[THE STATE]: Your Honor, what we are -- we were trying to give them some information with reference to Mr. Norman's demeanor on the stand; one of the things that the jury has to look for. And he didn't want to give some information about where he was living, where he was working, et cetera. We didn't want the jury to feel like he was withholding information, so we have an explanation for that.
THE COURT: All right. I'll overrule the objection.
After the objection was overruled, Foreman explained that certain individuals from whom Norman purchased cocaine in the past were looking for him in order to threaten, hurt, or kill him. This testimony, presumably, was offered in an attempt to explain the apparent hesitancy of Norman to provide detailed information relating to his home and work so as to squelch any opinion on the part of the jury that such evasiveness reflected on his credibility. Perkins claims this evidence was not relevant.
Rule 401 of the Texas Rules of Evidence defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Given the definition of relevance, we agree that this testimony is not relevant to the issue of Perkins's guilt. See Roberts v. State, 866 S.W.2d 773 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd) (reliability and accuracy of informant's information has no bearing on the offense of delivery of controlled substance). Accordingly, Perkins's relevancy objection should have been sustained. (7) See Tex. R. Evid. 401; Roberts, 866 S.W.2d at 778-79.
Where error is not constitutional, we disregard it if it does not affect the appellant's substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected where the error causes a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). Such error is harmless if there is reasonable assurance, upon examination of the record as a whole, that the error did not influence the jury's verdict or had but slight effect. Rivera-Reyes v. State, 252 S.W.3d 781, 787 (Tex. App.--Houston [14th Dist.] 2008, no pet.).
While this evidence did pertain to Norman's credibility, Perkins's relevancy objection was not abandoned when other evidence of Norman's credibility was admitted without objection; such evidence was of a general nature, and was not the same evidence as was elicited here. See Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996) (holding if defendant objects to admission of evidence, but same evidence is subsequently introduced from another source without objection, defendant waives his earlier objection). The record of this case persuades us, however, that error occasioned by the admission of this improper testimony was harmless. The evidence of credibility was cumulative of testimony provided by Foreman and was unrelated to the evidence upon which Perkins was convicted. The admission of the testimony in question was not error of such magnitude that the jury's proper evaluation of the evidence was disrupted. Roberts, 866 S.W.2d at 776.
We overrule this point of contention.
IV. CONCLUSION
Because Norman's testimony was corroborated by evidence that tends to connect Perkins to the transaction and because error in the admission of irrelevant testimony regarding Norman's credibility was harmless, we affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: November 13, 2009
Date Decided: November 18, 2009
Do Not Publish
1. The indictment charged delivery of less than one gram of cocaine, which offense is punishable as a state-jail felony. See Tex. Health & Safety Code Ann. § 481.112(b) (Vernon Supp. 2009). Cocaine is classified as a penalty group 1 controlled substance. See Tex. Health & Safety Code Ann.§ 481.102 (3)(D) (Vernon Supp. 2009). Perkins was also charged as an habitual offender with two previous final felony convictions, the second of which occurred after the first conviction became final. The punishment range thus increased to that of a second-degree felony. See Tex. Penal Code Ann. § 12.42(a)(2) (Vernon Supp. 2009). Because this offense was otherwise punishable as a felony of the second degree, and because it was shown at the punishment phase of the trial that the offense was committed within 1,000 feet of premises owned by an institution of higher learning (Paris Junior College), the offense became punishable as a first-degree felony. See Tex. Health & Safety Code Ann. § 481.134(b)(1) (Vernon Supp. 2009). The punishment range for a first-degree felony is life or five to ninety-nine years in prison. See Tex. Penal Code Ann. § 12.32 (Vernon Supp. 2009).
2. Norman initially believed the "unknown person" to be Perkins's nephew; later, it became apparent that Norman was dealing with Perkins himself.
3. Foreman and two other officers were positioned at Noyes Stadium, observing the transaction.
4. Because Norman went upstairs to his apartment to visit the restroom when his mother returned home, Foreman was unable to observe him continually while awaiting Perkins's arrival.
5. This offense took place within 1,000 feet of Paris Junior College, an institution of higher learning.
6. Perkins was indicted on an additional charge of delivery of a controlled substance as a result of a sting operation in February 2008; these matters were consolidated for trial. The conviction resulting from the earlier indictment is the subject of a separate appeal before this Court, styled James Edward Perkins v. State, cause number 06-09-00012-CR, the opinion in which is issued of even date herewith.
7. Perkins argues that the testimony in question should have been excluded under Rule 403 of the Texas Rules of Evidence. Rule 403 provides that relevant evidence may be excluded on the ground that the probative value of the evidence is nevertheless substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. An objection that the evidence is not relevant is not synonymous with an objection that the evidence is unfairly prejudicial under Rule 403. See Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00026-CR
______________________________
SHERMAN LEE HAMMONS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th Judicial District Court
Cass County, Texas
Trial Court No. 2008-F-00150
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Sherman Lee Hammons was a teacher at McLeod High School. He was convicted of an improper relationship with his student and was sentenced to ten years imprisonment in the Texas Department of Criminal Justice-Institutional Division.[1] Hammons alleges that evidence establishing he sent sexually explicit text messages on or about the 14th day of January, 2008, to a student with intent to arouse or gratify his sexual desire was legally and factually insufficient to support his conviction.[2] He also argues that the statute under which he was convicted is unconstitutional and that he had a fundamental free speech right to engage in text messaging with a student outside of the school setting in a consensual manner. We conclude that the evidence was sufficient to support his conviction. Because Hammons failed to preserve his remaining points of error, we will affirm the trial courts judgment.
I. Sufficient Evidence Supports Hammons Conviction
In conducting a legal sufficiency review, we consider the evidence in the light most favorable to the judgment to determine whether any rational jury could have found the essential elements of improper relationship between educator and student beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We must give deference to the jurys responsibility to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 31819 (1979)). We are not required to determine whether we believe that the evidence at trial established guilt beyond a reasonable doubt; rather, when faced with conflicting evidence, we presume that the jury resolved any such conflict in favor of the prosecution, and we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Legal sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Section 21.12 of the Texas Penal Code states that [a]n employee of a public . . . secondary school commits an offense if the employee engages in: . . . (2) conduct described by Section 33.021 with a person enrolled in a public . . . secondary school at which the employee works, regardless of the age of that person. Tex. Penal Code Ann. § 21.12(a). Section 33.021 states a person commits an offense if with the intent to arouse or gratify the sexual desire of any person, . . . the person, over the Internet, by electronic mail or text message . . . , intentionally: (1) communicates in a sexually explicit manner with a minor. Tex. Penal Code Ann. § 33.021(b)(1) (Vernon Supp. 2010). The evidence will be sufficient if it established that (1) Hammons; (2) was an employee of a secondary school; (3) and intentionally communicated via electronic mail or text message; (4) that was sexually explicit; (5) with a student enrolled in the school at which Hammons worked; (6) with intent to arouse or gratify his sexual desire. Sexually explicit means any communication, language, or material, . . . that relates to or describes sexual conduct, as defined by Section 43.25. Tex. Penal Code Ann. § 33.021(a)(3) (Vernon Supp. 2010). One definition of sexual conduct is sexual contact, actual or simulated sexual intercourse . . . . Tex. Penal Code Ann. § 43.25(2) (Vernon Supp. 2010).
Student T.J.F. met with investigator Mark West and showed him text messages on her cell phone from Hammons. West described the messages as sexually explicit. He met with Hammons, who admitted that he was a teacher at the high school and T.J.F. was his student. West obtained a written statement from Hammons that attempted to explain the text messages. It read:
The same day, I told [T.J.F.] that my best man was planning a bachelor party and I asked [T.J.F.] Does she strip? . . . . [T.J.F.] did not give me an answer, she just walked off. The question of stripping was never brought up again. . . . About January 18 or 19, 2008, [T.J.F.] sent me text messages that were explicit. I responded to her text by sending her a text message that was explicit regarding sex.
T.J.F. testified in front of the jury that Hammons began to text message her first, that the messages were initially innocent, and later became sexual. The text messages from Hammons were displayed for the jury. They read:
- One of a kind. You are very hot and you have this shyness about you thats why I think your [sic] wild. I just want to make out with you.
- What you want, I want you [to] tease and please me, I like to play, Dress in something hot and sexy.
- Im so horny thinking about it I can scream.
Hammons briefing suggests this Court should only review the above text messages sent prior to January 14, 2008, because the jury acquitted him of charges that he sent explicit text messages on or about the 19th day of January, 2008. However, [i]t is well settled that the on or about language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997) (citing Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 2009); Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990)) ([T]he State is not bound by the date alleged in the indictment . . . so long as the date proved is a date anterior to the presentment of indictment and the crimes occurrence is not so remote as to be barred by limitation.); Thomas v. State, 753 S.W.2d 688, 692 (Tex. Crim. App. 1988) ([W]here an indictment alleges that some relevant event transpired on or about a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations.). Thus, the jury was entitled to consider the following text messages sent to T.J.F.:
- I like sideways and backwards, I would love just one chance with you. It would be awsome [sic].
- Come on and f*** me. Well, whats stopping U [sic]? NO I would f*** you for hours.
- I want my stiff d*** inside that warm p****. I want to feel you up and make you cum.[3]
After considering all of the evidence on or about the three dates alleged in the indictment (January 14, 19, and 24, 2008), the jury found Hammons guilty of only one offense. Since the jury had the authority to consider all of the evidence on or about the dates alleged, it could determine that he was guilty of only one offense and designate the one for which he was found guilty. A review of all of the evidence unquestionably demonstrates that a rational jury could find Hammons was an employee of a secondary school, and intentionally sent explicit text messages describing sexual contact to a student enrolled in his school. The requisite specific intent to arouse or gratify sexual desire can be inferred from the defendants conduct and remarks and all the surrounding circumstances. Villanueva v. State, 209 S.W.3d 239, 246 (Tex. App.Waco 2006, no pet.). Given the evidence in this case, the jury was free to infer intent to arouse or gratify sexual desire from the content of Hammons text messages. We conclude the evidence was legally sufficient.
Hammons first point of error is overruled.
II. Hammons Failed to Preserve Remaining Complaints
Hammons alleges that Section 21.12 is facially unconstitutional insofar as said statute prohibits an educator from engaging in consensual text messaging with a student outside of a school setting. He further claims the statute is overbroad and violates the First Amendment insofar as it restricts his fundamental right to engage in free speech. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . . Tex. R. App. P. 33.1(a)(1).
Failure to object to the unconstitutionality of a statute waives any appellate review of that complaint. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (holding appellant waived his challenge to statute as vague as applied because he did not specifically object at trial); Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.Texarkana 2003, no pet.) (A constitutionality challenge based on application to the defendants case cannot be raised for the first time on appeal.). Hammons made no objection to the trial court about the constitutionality of Section 21.12 of the Texas Penal Code and did not otherwise raise the issue in his motion for new trial. Thus, he has failed to preserve these points of error for our review. Williams v. State, 305 S.W.3d 886, 893 (Tex. App.Texarkana 2010, no pet.).[4] Hammons remaining points are overruled.
III. Conclusion
We affirm the trial courts judgment.
Jack Carter
Justice
Date Submitted: October 7, 2010
Date Decided: October 22, 2010
Do Not Publish
[1]Hammons was charged with three separate violations of Section 21.12 of the Texas Penal Code. Tex. Penal Code Ann. § 21.12 (Vernon Supp. 2010). The jury returned a guilty verdict only on count two of the States indictment, which alleged the offense occurred on or about the 14th day of January, 2008. Our opinion focuses solely on this count alleging Hammons did then and there, while the defendant was an employee of a public secondary school, to-wit: McLeod High School, with the intent to arouse or gratify the sexual desire of the defendant, intentionally communicate by electronic mail in a sexually explicit manner, to-wit: text messaging to a cellular telephone, with [T.J.F.], a person who was enrolled in the said McLeod High School and who was not the defendants spouse.
[2]With Judge Cochran joining the lead opinion, authoring a concurring opinion and Judge Womack concurring with the lead opinion and joining the concurrence, in Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at **1, 14 (Tex. Crim. App. Oct. 6, 2010) (4-1-4 decision), a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. The plurality and Judge Womack agreed that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 2010 WL 3894613 at **1, 14. Since the Texas Court of Criminal Appeals has abolished factual sufficiency review, we need not address the defendants challenge(s) to the factual sufficiency of the evidence.
[3]These text messages were saved in T.J.F.s phone under the name Shawn. T.J.F. stated she used that alias for Hammons because Im really open with my -- our friends see our cell phones a lot and I didnt want everyone knowing who I was texting. Hammons stated that Exhibit 2 containing a text message from Shawn displayed his phone number, verifying T.J.F.s testimony.
[4]Moreover, we have previously held that Section 21.12 is not unconstitutional on its face and does not violate the First Amendment by being overly broad. In re Shaw, 204 S.W.3d 9, 19 (Tex. App.Texarkana 2006, pet. refd).
Document Info
Docket Number： 06-09-00013-CR
Filed Date： 11/18/2009
Precedential Status： Precedential
Modified Date： 4/17/2021