In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-04-00014-CR
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SCOTTY WAYNE ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 17,541-2003
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
Scotty Wayne Allen attempts to appeal from an order placing him on deferred adjudication. The record reflects he was placed on deferred adjudication pursuant to a plea agreement. On December 15, 2003, the trial court, in accordance with Tex. R. App. P. 25.2(a)(2), entered its certification of Allen's right to appeal, stating that this "[i]s a plea-bargain case, and the Defendant has NO right of appeal."
Unless a certification, showing that a defendant has the right of appeal, is in the record, we must dismiss the appeal. See Tex. R. App. P. 25.2(d). Because the trial court's certification affirmatively shows Allen has no right of appeal, we dismiss his appeal.
We dismiss the appeal.
Donald R. Ross
Justice
Date Submitted: February 11, 2004
Date Decided: February 12, 2004
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said, "You had me arrested, and if I see your mother-fucking ass again, I'll blow your mother-fucking ass up." Annie also stated she had told a police officer a day later Lonel had said, "You mother-fuckers think y'all are slick. None of you mother-fuckers are no good. I'm going to get y'all's mother-fucking ass."
Lonel points out he made the telephone call from the jail, that it was dialed by a jailer, and that the jailer was nearby while he talked to Annie. The jailer testified that, if abusive language had been used in a loud or a normal speaking voice, he would have heard it—and that he did not. Telephone records showed that the call was made at 10:52:30 p.m. and that the next call out was made forty-five seconds later. The jailer also testified that one of his purposes for being there was to keep threats from being made and that, if he had heard a threat, he would have made a note and reported it. He acknowledged Lonel could have spoken softly enough for him to be unable to hear him, and counsel points out this is contrary to Annie's testimony that Lonel was speaking loudly to her over the telephone.
However, the jailer also testified that Lonel was not the only inmate with whom he was dealing at the time and that he did not know what took place during this particular telephone call or what Lonel said. The jailer also testified that, after giving the telephone to the inmate to make the call, he then typically moved to a nearby computer to process paperwork. There was some testimony about the amount of traffic and noise in the room (which was occasionally considerable on a Saturday night), but nothing specific to this particular night or time.
The ultimate point of the jailer's testimony was that he simply did not remember the incident.
Karyl Patterson, an operations clerk for the department, testified Annie telephoned the office at 10:57 that night and told her that Lonel had threatened her by telephone and that she thought the call had come from the jail. She testified that Annie sounded excited, fearful, or scared, and that Annie had recounted the threat to her, which she recorded in the report as set out above.
Lonel also points out that Annie called the police often for a number of different reasons. There was testimony that, because she was blind, she was quite aware of her surroundings and the possibility of danger, and called police often. Her daughter speculated Annie might have called as many as 200 times over the last three years.
Under the standard articulated in Threadgill and set out above, the evidence shows that a seventy-seven-year-old woman was threatened by a drunken relative. She used different words at different times to attempt to reproduce the exact words used by Lonel, but never wavered in her contention that he had, obscenely and with great directness, threatened her life. The fact the jailer did not hear the conversation, and should have had Lonel been yelling or talking loudly, does not eliminate the possibility that Lonel might have spoken relatively quietly but intensely into the mouthpiece of the telephone. Further, the volume of his speech is not the critical point. The jailer could not testify that the conversation recounted by Annie did not happen, only that he did not hear it. Further, Annie called police and reported the threat less than five minutes after the telephone call ended. The fact that she calls the police regularly about a number of occurrences that worry her does not mean that in this instance she was not actually threatened.
The evidence in favor of the verdict is not so outweighed by the contrary proof to sustain a conclusion that the evidence is factually insufficient to support the verdict. The contention of error is overruled
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: November 29, 2004
Date Decided: December 21, 2004
Do Not Publish