Kenneth A. Tootle, Et Ux v. Thomas M. Moore ( 1998 )

Kenneth A. Tootle, et ux v. Thomas M. Moore

  IN THE

TENTH COURT OF APPEALS

No. 10-98-077-CV

     KENNETH A. TOOTLE, ET UX.,

                                                                              Appellants

     v.

     THOMAS M. MOORE,

                                                                              Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 234-96

MEMORANDUM OPINION

      On May 28, 1998, Appellants Kenneth and Ann Tootle filed a motion to dismiss this appeal. In relevant portion, Rule 42.1(a) of the Texas Rules of Appellate Procedure provides:

(a) The appellate court may dispose of an appeal as follows:

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a)(2).

      The Tootles state that the parties have settled their controversy. Appellee Thomas Moore has not filed a response to the motion. Accordingly, this cause is dismissed with costs to be taxed against the appellants.

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Dismissed

Opinion delivered and filed June 10, 1998

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      Trinity Gonzalez was convicted of two counts of aggravated assault with a deadly weapon and one count of murder. He was sentenced to twenty years’ imprisonment for the assaults, and life imprisonment for the murder. Counsel filed an Anders brief and a motion to withdraw. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967).

      Gonzalez filed a pro se response to the Anders brief. See Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, order). The State filed a reply brief. We now address the potential issues identified by counsel and Gonzalez and conduct an independent review of the record “to decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87 S. Ct. at 1400.

POTENTIAL ISSUES

      Counsel identified the sufficiency of the evidence and the voluntariness of Gonzalez’s confession as potential issues for appeal. Gonzalez likewise challenges the voluntariness of his confession and additionally asserts error where the State solicited evidence from him regarding a prior conviction and extraneous offenses. Gonzalez further urges that counsel rendered ineffective assistance in both phases of trial.

Confession

      Detective Linda Erwin testified that Gonzalez gave a statement voluntarily. That statement was offered into evidence without objection. Gonzalez asserts that the court should have made findings regarding the voluntariness of his confession pursuant to article 38.22, section 6 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 1979). However, article 38.22, section 6 requires such findings only after a question is raised as to the voluntariness of the confession. No such question was raised in this case.

Sufficiency

      We have noted before that sufficiency of the evidence does not seem to fit within the category of “arguments that cannot conceivably persuade the court,” theorizing that an advocate can always present an argument, regardless of how convincing it may be, that the evidence is lacking. Taulung v. State, 979 S.W.2d 854, 857 (Tex. App.—Waco 1998, no pet.) We have nevertheless followed the guide of other courts and addressed a sufficiency challenge in the Anders context. Id. (citing Spencer v. State, 465 S.W.2d 370, 370-71 (Tex. Crim. App. 1971); Bruns v. State, 924 S.W.2d 176, 178-79 (Tex. App.—San Antonio 1996, no pet.); Crittendon v. State, 923 S.W.2d 632, 635 (Tex. App.—Houston [1st Dist.] 1995, no pet.); Mays v. State, 904 S.W.2d 920, 925 (Tex. App.—Fort Worth 1995, no pet.)). We will do so again.

      Gonzalez testified on his own behalf during the guilt-innocence phase of trial, stating that on the day in question he and his nephew decided to drive by Skyline High School. Gonzalez testified that a group of guys “started saying some verbal things” and “throwing gang-related signs” in his direction. He said that this scared him, but that he did not want to leave because he did not want them to follow him. Gonzalez testified that he thought the guys were going to pull a gun, so he pulled his gun out and started shooting. He said that, although he was not shooting at anyone in particular, he did shoot three people that day, killing one. In light of this testimony, the only element on which a question of evidentiary sufficiency exists is whether Gonzalez’s claim that he was scared and thought they had a gun negated the culpable mental state of “knowingly and intentionally.”

      In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Applying this standard in Gonzalez’s case, we conclude the evidence is legally sufficient to support the conviction.

      In conducting a factual-sufficiency review, we examine all of the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We give due deference to the factfinder’s assessment of the weight and credibility of the evidence and will find it insufficient only where necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407; Calhoun v. State, 951 S.W.2d 803, 810 (Tex. App.—Waco 1997, pet. ref’d). Giving appropriate deference to the verdict, we cannot say from the record that the verdict is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain, 958 S.W.2d at 410. Accordingly, the evidence is factually sufficient to support Gonzalez’s conviction.

extraneous offense evidence

      On cross-examination, the State asked Gonzalez if he had ever been convicted of a felony and he answered, without objection, that he had been convicted of unauthorized use of a motor vehicle. This evidence was properly solicited under Rule of Evidence 609. Tex. R. Evid. 609 (“evidence that the witness has been convicted of a crime shall be admitted . . .”). Thus, this is not a viable issue for review.

CONCLUSION

      We have reviewed the record and have found no errors of arguable merit. See Wilson, 955 S.W.2d at 698. Accordingly, we grant counsel’s motion to withdraw and affirm the judgment. Id.

                                                                       BILL VANCE

                                                                       Justice

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Affirmed

Opinion delivered and filed August 31, 1999

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