Jimmy Moorefield v. State

NUMBER 13-00-168-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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JIMMY MOOREFIELD

, Appellant,

v.

THE STATE OF TEXAS , Appellee.

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On appeal from the 283rd District Court

of Dallas County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Castillo

Opinion by Justice Castillo

Appellant, Jimmy Moorefield, was found guilty of the offense of aggravated sexual assault of a child by a jury and sentenced to life in prison. ⁽¹⁾ He appeals, contending that the evidence was factually and legally insufficient and that the trial court erred in charging the jury about good time credit during the punishment phase of his trial. We affirm.

Sufficiency of the Evidence

In his first two points of error, appellant attacks the legal and factual sufficiency of the evidence. In reference to both the legal and factual sufficiency of the evidence, appellant particularly attacks the sufficiency of the evidence to demonstrate that he came into contact with the victim's sexual organ.

It is well settled that a child need not testify in specific clinical terms or with the same clarity with which an adult's testimony might be characterized. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Viewing the evidence in the light most favorable to the jury verdict, we find that a rational trier of facts could have found the essential elements of the offense beyond a reasonable doubt, as required by Jackson v. Virginia ⁽²⁾, and so we find the evidence legally sufficient to sustain the conviction. Likewise, viewing all the evidence, without the prism of the "light most favorable to the prosecution" as required by Clewis ⁽³⁾, we find that neither is the evidence supporting the conviction so weak as to render the verdict clearly wrong and unjust nor is the jury's verdict against the great weight and preponderance of the evidence presented at trial. We overrule appellant's first and second issues.

The Jury Charge

Appellant's final point of error alleges that the instruction given to the jury under article 37.07(4)(a) of the code of criminal procedure, which makes reference to good conduct time, was unconstitutional as applied to him because, due to his conviction for aggravated sexual assault, he "was not eligible to receive good conduct time credits on his sentence" under the provisions of section 508.149 of the government code. Tex. Crim. Proc. Ann. art. 37.07(4)(a) (Vernon Supp. 2002); Tex. Gov't Code Ann. §508.149 (Vernon Supp. 2002). ⁽⁴⁾

The State urges that appellant has waived any state constitutional claims by failing to adequately brief them separately from any federal constitutional claims. We agree, but note that we cannot determine, by reviewing the issue as presented, whether appellant even intends to raise a claim under the Texas Constitution. He certainly has not presented separate issues with separate substantive analysis or arguments nor has he offered any argument or authority showing how the Texas Constitution provisions that might be applicable to this point exceed or differ from their federal counterparts. See Dewberry v. State, 4 S.W.3d 735, 743-44 (Tex. Crim. App. 2000); Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993); Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991); McCambridge v. State, 712 S.W.2d 499, 501-02, n.9 (Tex. Crim. App. 1986). Appellant, while repeatedly claiming that article 37.07(4)(a) is unconstitutional, never specifies which constitutional provision he claims has been violated. Indeed, he never specifies which constitution was violated - that of Texas or the United States. Appellant does cite to a specific case, Jimenez v. State, upon which he relies for his claim that the statute is unconstitutional. Jimenez v. State, 992 S.W.2d 633, 639 (Tex. App. - Houston [1st Dist.]1999)("Jimenez I"), aff'd on other grounds, 32 S.W.3d 233 (Tex. Crim. App. 2000)("Jimenez II"). ⁽⁵⁾ In Jimenez I, the intermediate appellate court did find that the grant of such an instruction, under the facts of that case, was unconstitutional under certain provisions of the Texas and United States Constitution. Id. However, in that case, the question of whether the statute violated certain provisions was squarely before the court, having been asserted by the defendant with specific references. Id. at 637. Moreover, the intermediate court did not find the section unconstitutional under all the theories promulgated by the defendant. Id.

In the present case, in order to analyze this point, we would have to assume that appellant is claiming that this statute is unconstitutional on exactly the same grounds upon which it was found to be unconstitutional by the intermediate court in Jimenez I. While this may have some common-sense appeal, we cannot assume which specific constitutional provision appellant contends was violated. Appellant does not cite any constitutional authority or language or provide any analysis demonstrating how this statute violates any provision of any constitution. Any attempt by this Court to analyze this point would require this Court to, at best, make an assumption, or at worse, hazard a guess, as to which section of which constitution appellant believes has been violated. We refuse to engage in such speculation. We find that the point has been inadequately briefed and refuse to address it. ⁽⁶⁾ Tex. R. App. P. 38.1(h); see McDuff v. State, 939 S.W.2d 607, 621 (Tex. Crim. App. 1997) (failure to provide any constitutional or statutory authority in support of point caused issue to be inadequately briefed).

We overrule this issue.

Conclusion

Having overruled all of appellant's issues, we affirm the judgment of conviction.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 28th day of March, 2002.

1. Tex. Pen. Code Ann. §22.021 (a)(1)(B)(iii) & (a)(2)(B) (Vernon Supp. 2002).

2. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

3. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

4. While the cited section does not affect a prisoner's ability to earn good time credits, as appellant argues, it does state that certain offenders (including those found guilty of aggravated sexual assault of a child) may not be released to mandatory supervision. Tex. Gov't Code Ann. §508.149 (Vernon Supp. 2002)

5. The court of criminal appeals, in affirming the decision of the intermediate court, did not rule on the constitutionality of the statute but simply determined the appropriate standard of review.

6. We do note however, that if the issue were adequately before us, then under the standards of Jimenez v. State, 32 S.W.3d 233, 233 (Tex. Crim. App. 2000), as appellant did not object to the charge, we would have had to determine whether it appears from the record that appellant did not receive a fair or impartial trial. This we have done and there is nothing in the record to indicate that appellant did not receive a fair or impartial trial. Indeed there is nothing to indicate that the instruction had any impact on the jury at all. The jury was instructed not to consider how good-conduct time might affect appellant and we presume the jury followed that instruction. Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996).