Ex Parte William H. Hill ( 2006 )

NO. 07-06-0042-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 27, 2006 ______________________________

Ex parte WILLIAM H. HILL _________________________________

FROM THE 154^th DISTRICT COURT OF LAMB COUNTY;

NO. 16,768; HON. FELIX KLEIN, PRESIDING _______________________________

Order of Dismissal _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

Pending before the court is the appeal of William H. Hill from an order dismissing his petition for writ of habeas corpus. The order dismissing the petition was signed on December 28, 2005. Hill did not mail or otherwise file his notice of appeal from the order until January 30, 2006. By rule of procedure, Hill was obligated to file his notice of appeal within 30 days of the date the trial court dismissed his petition. Tex. R. App. P. 26.2(a)(1). ⁽¹⁾ Because he did not, we notified him, by letter dated March 13, 2006, of the circumstance and directed that he provide us with any documents considered necessary "for the Court to determine its appellate jurisdiction." Though he responded to our March 13^th letter, he did so not by explaining why this court had jurisdiction over his appeal or by attempting to justify the belatedness of his notice. Instead, he purported to address the merits of his claims.

Hill having failed to timely file his notice of appeal, we have no jurisdiction over the matter and dismiss it on that ground.

Per Curiam

Do not publish.

1. The record before us does not disclose that Hill timely moved for new trial. Nor does Hill contend that he did.

sexual act, it does not show what type of sexual act he intended.

We review the sufficiency of the evidence under the standards announced in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to those cases.

Next, a defendant's intent may be inferred by words, acts, or deeds. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). Here, the evidence shows that appellant approached the complainant (a 14-year-old girl) while she was seated in the passenger seat of her mother's vehicle in a parking lot. One of her legs was in the car and the other outside of it when appellant, who was utterly nude, proceeded to locate himself between the girl's legs, pull her to him, and utter "hey, baby, here's some dick for you." The girl thought she was about to be raped. From appellant locating himself between the girl's legs, forcibly pulling her to him, and uttering the phrase he did, a jury could reasonably infer that he intended to penetrate her female sex organ. See Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. 1981) (finding the evidence sufficient to support a conviction of attempted rape when the defendant grabbed the complainant, attempted to remove her clothing, and exposed his penis).

Contrary to appellant's suggestion, that he had not attempted to remove the girl's clothing before he fled (as the girl began to scream and her mother returned to the car) matters not. The accusation was one of attempt; he need not have completed the assault to be convicted of the crime. There need only be enough evidence to permit a jury to rationally infer how he was to complete the assault. And, the evidence we described above does that.

Given the dearth of evidence suggesting that appellant intended to use his penis in some other manner, we conclude that the evidence is both legally and factually sufficient to support the verdict. Thus, the issue is overruled.

Issue 2 - Double Jeopardy

Next, appellant contends that the offense of indecency with a child is a lesser-included offense of attempted sexual assault and that his conviction of both offenses violated his right to be free of double jeopardy. The State concedes the issue; thus, we sustain it by reversing his conviction for indecency. Roy v. State, 76 S.W.3d 87, 94 (Tex. App.- Houston [14^th Dist.] 2002, no pet.) (holding that the lesser punishment offense is to be reversed, not the greater).

Issue 3 - Jury Instruction

Finally, appellant argues that the trial court erred in refusing to instruct the jury on renunciation or abandonment. We overrule the issue.

Admittedly, a defendant is entitled to an instruction on any defensive matter raised by the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Furthermore, renunciation is an affirmative defense to a criminal attempt, but to justify its submission, the circumstances must show that the renunciation or abandonment was voluntary. Tex. Pen. Code Ann. §15.04(b) (Vernon 2003). That is, it cannot be motivated, in whole or in part, by circumstances suggesting an increase in the probability of detection or apprehension or making more difficult the accomplishment of the objective. Id. §15.04(c)(1) (defining when renunciation is not considered voluntary).

While it is undisputed that appellant left the parking lot, we cannot excise this evidence from its context. See Prewitt v. State, 133 S.W.3d 860, 863 (Tex. App.- Amarillo 2004, pet. ref'd) (stating that the evidence must be viewed in context to assess its import). That context depicts appellant continuing his efforts until the girl began screaming and her mother began to return to the car. At that point, he stopped, looked around, and then fled. So, when viewed in context, the circumstances do not show termination of effort due to voluntary repentance or a change of heart, see Lindsay v. State, 764 S.W.2d 376, 379 (Tex. App.-Texarkana 1989, no pet.) (stating that renunciation requires an affirmative showing of voluntary repentance or a change of heart and cessation of activity because he knew his wife was to return did not illustrate that), but rather due to the fear of being caught.

Accordingly, we reverse the conviction for indecency with a child and dismiss that charge. We affirm his conviction for attempted sexual assault, however.

Brian Quinn

Chief Justice

Do not publish.

1. Appellant pled guilty to the offense of indecent exposure and was convicted by a jury of attempted sexual assault.