Walton Haggerty v. State ( 2000 )

Walton Haggerty v. The State of Texas

    IN THE

TENTH COURT OF APPEALS

No. 10-99-292-CR

     WALTON HAGGERTY,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 195th District Court

Dallas County, Texas

Trial Court # F98-00415-N

MEMORANDUM OPINION

      Walton Haggerty pleaded guilty to aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(ii), (2)(B) (Vernon Supp. 2000). Pursuant to a plea agreement, the court placed Haggerty on unadjudicated community supervision for five years. Thereafter, the State filed a motion to adjudicate Haggerty’s guilt. He pleaded true to the allegations of the motion, and the court adjudicated him guilty of aggravated sexual assault and sentenced him to fifteen years’ imprisonment and a $500 fine. Haggerty filed a general notice of appeal.

      An appellant who has pleaded guilty in exchange for unadjudicated community supervision must comply with appellate rule 25.2(b)(3) when he seeks to appeal a subsequent adjudication and sentencing. Tressler v. State, 986 S.W.2d 381, 382 (Tex. App.—Waco 1999, no pet.); see also Manuel v. State, 994 S.W.2d 658, 662 (Tex. Crim. App. 1999) (applying former appellate rule 40(b)(1)). Haggerty’s general notice of appeal does not comply with this rule. We notified him of this defect by letter dated January 11, 2000. See Tex. R. App. P. 25.2(d). He has not responded to our letter by filing an amended notice of appeal in compliance with rule 25.2(b)(3).

      Because Haggerty’s notice of appeal does not comply with rule 25.2(b)(3), we do not have jurisdiction over this appeal. Tressler, 986 S.W.2d at 382; see also Manuel, 994 S.W.2d at 662. Accordingly, we dismiss this appeal for want of jurisdiction.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed

Opinion delivered and filed February 9, 2000

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this point Appellant was wearing only a pair of underwear which Sherretha described as "black polka dots and like a leopard." Sherretha testified that Appellant tried to slide her panties aside and that "he had his penis out and was trying to put his penis in me." Sherretha felt Appellant's penis rub against her vagina, whereupon, she kicked him in the groin area and ran out of the room. Sherretha stood outside Appellant's house but, since it was dark and she "didn't know nobody out there," she went back into Appellant's house. Appellant asked Sherretha to swear not to tell anybody what happened. After she promised not to tell, Appellant did not touch her again. Appellant refused to let Sherretha call her parents, however, and warned her that the telephone in the house belonged to his friend and that no one could use it without permission. Sherretha slept on the couch for the rest of the evening.

      Meanwhile, Sherretha's parents began to worry about their daughter. Her parents called Appellant's house twice, only to be told that Sherretha was busy visiting and did not want to talk to them. Elva (Sherretha's mother) testified that "after the third phone call I made, I knew then that it was—something wasn't right." Elva did not know the address of Appellant's house and she tried to reach other family members in an attempt to locate Appellant. Since Elva was unable to find her daughter, she did not sleep that night. Appellant called Elva the next morning and asked if he could take Sherretha shopping. Elva said no. An hour later, Appellant and some of his friends dropped Sherretha off at her house. Appellant did not get out of the car or speak with either parent. Sherretha looked scared. John Paul testified that he saw his daughter crying as she went to the back yard to speak privately with her mother. Elva testified that after she told Sherretha to take a shower and get ready to go to a barbecue, Sherretha started screaming and was greatly upset. Sherretha asked her mother, who had been raped as a child, "what it was like for somebody to try to rape you."

      At this point Elva immediately went to get her husband. Then Elva and John Paul called the police who interviewed Sherretha and subjected her to a rape exam.

      Kenneth Walker, the Garland Police Department Crisis Counselor, interviewed Sherretha and testified that she was very upset and embarrassed about the molestation. When she got home she refused to sleep in her room because Appellant had casually lain down on her bed during his visit to the home.

      Appellant in his defense put on the stand his brother-in-law, mother and father, none of whom had any personal knowledge of the events on June 18, 1994. Appellant's only defense at trial was his alleged homosexuality. Appellant's brother-in-law, Isiah Mattox, testified that Appellant is gay and very effeminate. He characterized Appellant as a "wrist-flipper." Shirley Donahue, Appellant's sister, testified that her brother is "real gay" and he "don't like women--he likes men." Appellant's parents testified that Appellant was gay and they had never seen him with a woman.

      Appellant asserts in his sole point of error that the evidence is factually insufficient to support his conviction for aggravated sexual assault. More specifically, he attacks the credibility of Sherretha and the lack of corroborating physical evidence. In addition, he asserts that testimony concerning his homosexuality somehow precluded a finding that Appellant had molested his twelve-year-old niece.

      We do not believe in the validity of either of these arguments. A rational juror could have reasonably concluded that Appellant sexually assaulted his niece despite his sexual orientation. Moreover, the credibility of a witness is not a proper basis for a factual sufficiency complaint on appeal.

      The proper standard of review of the elements of the offense is that the court of appeals views all the evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.—Austin 1992, pet. ref'd), untimely filed. A factual sufficiency review begins with the presumption that the evidence supporting the jury's verdict is legally sufficient, that is to say, constitutionally sufficient for the Due Process Clause of the Fourteenth Amendment to the federal constitution. Because the court is not bound to view the evidence in the light most favorable to the prosecution, it may consider the testimony of defense witnesses and existence of alternate hypotheses. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Stone, supra.

      Under the Clewis test we hold the evidence to be factually sufficient to sustain Appellant's conviction.

      Appellant's point is overruled. The judgment is affirmed.

                                                                               JOHN A. JAMES, JR.

                                                                               Justice (Retired)

Before Justice Cummings,

      Justice Vance and

      Justice James (Retired)

Affirmed

Opinion delivered and filed February 25, 1998

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