Raymond Edward Olivas v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-02-00312-CR

Raymond Edward Olivas,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 29255F-272

MEMORANDUM Opinion

            The jury found Raymond Olivas guilty of the offense of evading arrest with a vehicle.[1]  Olivas was sentenced to 1½ years in State Jail.  We affirm.

          In his sole issue, Olivas contends the evidence is legally and factually insufficient to support his conviction because the officer did not establish the identity of the suspect driving the vehicle which evaded him.  Evidence in the record connected Olivas to the vehicle being pursued.  And identity of a criminal defendant may be proved by inferences.  See Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d).  Viewing the evidence under the appropriate standards of review, we find the evidence both legally and factually sufficient to support the conviction.  See Vodochodsky v. State, No. 74,129, 2004 Tex. Crim. App. LEXIS 663 (Tex. Crim. App. April 21, 2004) (legal sufficiency standard of review); Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004) (factual sufficiency standard of review).  Olivas’s issue is overruled.

          Having overruled the issue, we affirm the judgment of the trial court.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Affirmed

Opinion delivered and filed November 10, 2004

Do not publish

[CR25]

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[1] Olivas was tried for several instances of evading.  This particular instance involved Olivas evading Officer Gabe Alvarez, Bryan Police Department, on December 12, 2001.

ntal anguish is no longer a cause of action. See Birdo v. Williams, 859 S.W.2d 571, 573 (Tex. App.—Houston [1st Dist.] 1993, no writ) (citing Boyles v. Kerr, 855 S.W.2d 583 (Tex. 1993)). Thus the court did not abuse its discretion in dismissing his in forma pauperis suit for having no arguable basis in law or fact. See id. We overrule point one.

      As to Birdo's request that we take "judicial notice" of the trial court's "pro-law enforcement" bias, we decline. Nothing in the record indicates that the court acted improperly. We overrule point two. We affirm the judgment.

ABUSIVE LAWSUITS

      Birdo is no stranger to the legal system. This court has reviewed several in forma pauperis lawsuits filed by him. See, e.g, Birdo v. Ament, 814 S.W.2d 808 (Tex. App.—Waco 1991, writ denied) (sued prison employees for serving him hot coffee in a "flimsy" paper cup); Birdo v. Debose, 819 S.W.2d 212 (Tex. App.—Waco 1991, no writ). Birdo has flooded our sister courts of appeals with his lawsuits. See, e.g., Birdo v. Williams, 859 S.W.2d 571 (Tex. App.—Houston [1st Dist.] 1993, no writ) (sought $200,000 for "mental anguish" for negligent investigation of employee allegedly throwing hot coffee on him); Birdo v. Hammers, 842 S.W.2d 700 (Tex. App.—Tyler 1992, no writ) (trial on merits for prison employee's confiscation of headphones, radio, and magazines); Birdo v. Parker, 842 S.W.2d 699 (Tex. App.—Tyler 1992, no writ) (trial on merits against prison employees alleging slip and fall).

      The Fort Worth court addressed Birdo's litigiousness in Birdo v. Holbrook, 775 S.W.2d 411 (Tex. App.—Fort Worth 1989, writ denied). In affirming a take-nothing judgment, the court noted that it had dealt with a prior appeal and six mandamus actions filed by Birdo. Id. at 412. Furthermore, Birdo's "pointless litigation" had begun not in Texas but in New Mexico. See id. (citing Birdo v. Rodriquez, 84 N.M. 207, 501 P.2d 195, 197 (1972)). We also note that this list is not exhaustive—it only represents the published opinions of cases brought by Birdo. Doubtless others have been filed in our state-court system which have not been designated for publication and thus are not readily available for our review.

      Birdo has not limited himself to state courts. He has been sanctioned by the Western District of Texas for filing frivolous excessive-force suits. Birdo v. Carl, No. W-92-CA-186 (W.D. Tex., August 10, 1993). Not to be deterred, Birdo has now sued prison employees for alleged violations in filing disciplinary reports and irregularities in his many grievance proceedings. See Birdo v. Mata, W-94-CA-201 (W.D. Tex). Finally, although we do not know the specifics of the cases, Birdo has filed lawsuits in the federal district courts in Tyler, Amarillo, and Fort Worth. He also has a suit pending in a Houston federal court.

Sanctions

      This appeal is frivolous. We agree with the First Court of Appeals that damages should be assessed against persons bringing frivolous appeals from dismissals under section 13.001. See Smith v. Stevens, 822 S.W.2d 152 (Tex. App.—Houston [1st Dist.] 1991, writ denied); Tex. Civ. Prac. & Rem. Code Ann. § 13.001; Tex. R. App. P. 84. We assess damages against Birdo of $100, which is less than ten times the otherwise taxable costs. See Tex. R. App. P. 84.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed August 24, 1994

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