Billy Clyde Sears v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Billy Clyde Sears

Appellant

Vs.                   Nos. 11-01-00226-CR & 11-01-00227-CR B Appeals from Dallas County

State of Texas

Appellee

These are appeals from two offenses of aggravated assault involving the same victim.  We dismiss the appeal from the judgment adjudicating appellant=s guilt in Cause No. 11-01-00226-CR, and we affirm the conviction in Cause No. 11-01-00227-CR.

                                                            Procedural Background

In Cause No. 11-01-00226-CR, appellant entered a plea of guilty in May 2000 to the January 2000 stabbing of Felicia Nails and, pursuant to a plea bargain agreement, was placed on deferred adjudication community supervision for 8 years and assessed a $200 fine.  The State filed a motion to adjudicate alleging, among other things, that appellant had committed a second offense of aggravated assault by shooting Nails in October of 2000.  The trial court heard the motion to adjudicate at the same time it conducted the June 2001 trial on the merits of the October 2000 aggravated assault in Cause No. 11-01-00227-CR.  In Cause No. 11-01-00226-CR, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and assessed his punishment at confinement for 20 years.  In Cause No. 11-01-00227-CR, the trial court convicted appellant and assessed his punishment at confinement for 20 years. 

                                                                   Points of Error

Appellant addresses both of his appeals in one brief. In his first point of error, appellant contends that the evidence is legally insufficient to support his conviction for the October 2000 shooting of Nails.  In his second point, appellant contends that the evidence is factually insufficient to support his conviction for the October 2000 assault.  In his third point, appellant argues that the trial court abused its discretion in revoking his deferred adjudication supervision.

                                                          Sufficiency of the Evidence

In reviewing claims of legal sufficiency, we review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).  In deciding whether the evidence is factually sufficient to support the conviction, we review all of the evidence in a neutral light, favoring neither party, to determine if the verdict is clearly wrong and manifestly unjust or against the great weight of the evidence.  Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Clewis v. State, supra. We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder.  Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, supra.  Due deference must be given to the fact finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, supra; Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).  As the finder of fact, the trial court was the sole judge of the weight and credibility of the testimony.  Adelman v. State, 828 S.W.2d 418 (Tex.Cr.App.1992); DeBolt v. State, 604 S.W.2d 164 (Tex.Cr.App.1980); Austin v. State, 794 S.W.2d 408 (Tex.App. - Austin 1990, pet=n ref=d).  This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@  Johnson v. State, supra at 9.

Nails testified that, when she got off work at 2:00 p.m., she went to her uncle=s house on October 27, 2000.  There was an area in her uncle=s yard under a tree where a lot of her family and friends would gather to visit, play dominos, and drink beer.  Appellant was there.  Nails talked to appellant, played one hand of dominos with him, and drank a Acouple of beers@ with him.  Later, around 6:30 or 7:00 p.m., he walked her to her grandmother=s house which was across the street. About 10 minutes later, appellant knocked on her grandmother=s door. Her grandmother would not open the door because appellant would not identify himself.  Nails stated that she knew it was appellant because he was the Aonly one that@ would Abam on the door like that.@  A little while later, Nails walked to the store with a girlfriend to get cigarettes.  Appellant ran up behind Nails and shot her.  Nails testified that she knew it was appellant because she recognized his voice when he said, A[B]ye, bitch@; because she turned and saw his face after he shot her as they Astruggled@; and because appellant was swinging at her and she was swinging back.  Nails was shot in the liver and had to have surgery.

Michael Douglas testified on behalf of appellant. Douglas stated that he had been at Athe tree,@ that he had seen appellant there, and that appellant had gone with him to the beer store.  Barry Butler testified that he saw appellant at the Adomino tree@ and that he went with Douglas and appellant to the beer store around 7:00 p.m.  Both Douglas and Butler stated that they then went to appellant=s house and were playing dominos at appellant=s house when appellant was arrested later that night around 10:00 p.m. 

Appellant testified that he was cooking brisket, ribs, and steaks on the grill that afternoon because his girlfriend was coming over that night at about 9:00 p.m.; that he talked to Nails at the tree; that he went to the beer store with Douglas and Butler; and that they then went to his house to play dominos.  Appellant stated that Douglas and Butler were with him at his house when the police came to arrest him.  Appellant testified that he did not shoot appellant and that he did not own a pistol.

After reviewing all of the evidence in the light most favorable to the verdict, we find that a reasonable fact finder could have concluded that appellant committed the offense of aggravated assault against Nails in October 2000 and that the evidence is legally sufficient.  The evidence, when reviewed in a neutral light, is factually sufficient; and we find that the conviction is neither clearly wrong nor manifestly unjust as to be against the great weight of the evidence. Appellant=s first two points are overruled. 

                                Decision to Adjudicate Guilt in Cause No. 11-01-00226-CR

TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 5(b) (Vernon Supp. 2002) provides in part:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article.  The defendant is entitled to a hearing limited to the determination by the  court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

Phynes v. State, 828 S.W.2d 1 (Tex.Cr.App.1992); Olowosuko v. State, 826 S.W.2d 940 (Tex.Cr.App.1992).  Therefore, this court lacks jurisdiction to consider appellant=s third point of error.  Phynes v. State, supra; Russell v. State, 702 S.W.2d 617 (Tex.Cr.App.1985), cert. den=d, 479 U.S. 885 (1986).

                                                               This Court=s Holding

The appeal in Cause No. 11-01-00226-CR is dismissed. The judgment of the trial court is affirmed in Cause No. 11-01-00227-CR.

            PER CURIAM

May 9, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.