IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 10, 2000
______________________________
WILLIAM CASH LOVE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64th DISTRICT COURT OF SWISHER COUNTY;
NO. B3251-9907CR; HONORABLE JACK MILLER, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
ON MOTION TO SUSPEND OPERATION OF TEX. R. APP. P. 21.8Appellant William Cash Love applies by motion for this court to suspend operation of Texas Rule of Appellate Procedure 21.8 (1) and to thereby extend the time for the trial court to rule on his Amended Motion for New Trial before it is overruled by operation of law. We deny the motion.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant alleges by a motion filed with the clerk of this court on April 13, 2000, that sentence was imposed in this matter on January 29, 2000. He further alleges that notice of appeal was timely filed, motion for new trial and amended motion for new trial were timely filed, and that hearing was held on the amended motion for new trial on April 12, 2000. In his motion, appellant alleges that attorneys for the State and appellant agreed to a schedule for presenting a transcript of the hearing on the motion for new trial and briefs respecting positions of the parties to the trial court, and that the trial court accepted the agreement in lieu of making a ruling on appellant's motion for new trial at the time of the hearing on April 12, 2000. The agreed schedule provided for the trial court to rule on appellant's amended motion for new trial sometime after May 15, 2000.
Rule 21.8(a) and (c) result in appellant's amended motion for new trial having been overruled by operation of law upon the expiration of 75 days following January 29, 2000, when sentence was imposed, unless the trial court ruled on the motion within such 75-day period. The 75-day period expired on April 13, 2000.
LAW
In Oldham v. State, 977 S.W.2d 354 (Tex.Crim.App. 1998), the Court of Criminal Appeals considered a cause in which the court of appeals suspended the provisions of then Rule 31(a)(1) which required a motion for new trial to be filed within 30 days after sentencing of the defendant. The suspension was under provisions of Rule 2(b), which was the predecessor rule to current Rule 2. The suspension was based on "good cause" in that appellant Oldham had allegedly been deprived of counsel in violation of her constitutional rights, and had not filed a motion for new trial in regard to her forgery conviction. The court of appeals abated and remanded the case so that appellant could file a motion for new trial to assert the constitutional violation. Oldham v. State, 977 S.W.2d at 355-57. The Court of Criminal Appeals, in reversing the decision of the court of appeals, stated that
In essence, the Court of Appeals used Rule 2(b) to extend the time limit for the filing of the appellant's motion for a new trial some two years and eight months, this being the time from the appellant's sentencing to the date of the Court of Appeals' decision. . . . We believe the Court of Appeals was in error to rely on Rule 2(b) as a mechanism to extend the time limits for the filing of a motion for a new trial imposed by Rule 31(a)(1). . . . Rule 2(b) is in essence an escape valve to be used by an appellate court when a case becomes unduly stalled or delayed in the appellate process due to procedural rules, and the interests of justice compel speeding up the process; although Rule 2(b) may be used to shorten the time limits when justice so requires, it should not be used as a method to lengthen procedural time limits absent truly extraordinary circumstances, even in an effort to protect the substantive rights of litigants. Oldham v. State, 977 S.W.2d at 356, 360.
In State v. Riewe, No. 699-99 (Tex.Crim.App. Mar. 8, 2000), the court reiterated its statements in Oldham to the effect that Rule 2 is not to be used to enlarge timeframes established by the appellate rules for appeals: "[Rule 2] was not intended to be used to lengthen procedural time limits, even in an effort to protect the substantive rights of litigants."
ANALYSIS
Granting appellant's motion would expand the time limits established by the TRAP for appellant's appeals process. As Rule 2 has been interpreted in Oldham and Riewe, we cannot suspend the operation of Rule 21.8 and extend the time for the trial court to rule on appellant's amended motion for new trial under the circumstances presented by appellant. Thus, assuming appellant, the State, and the trial judge agreed on the proposal as described in appellant's motion, we still must, and therefore do, deny appellant's motion.
Per Curiam
Do not publish.
1. Further references to the rules of appellate procedure will be by reference to "Rule" or "TRAP."
.04(a) (Vernon Supp. 2003). Fleeing a police officer, though improper, does not necessarily involve moral depravity or dishonesty, as do crimes like theft, swindling, making a false report, or assault upon a woman by a man (which crimes have been held as involving moral turpitude). See e.g. Bensaw v. State, 129 Tex. Crim. 474, 88 S.W.2d 495 (1935) (involving theft); Sherman v. State, 124 Tex. Crim. 273, 62 S.W.2d 146, 150 (1933) (involving swindling); Lape v. State, 893 S.W.2d 949, 958 (Tex. Civ. App.--Houston [14th Dist.] 1994, pet. ref'd) (involving a false report); Hardeman v. State, 868 S.W.2d 404, 407 (Tex. App.--Austin 1993, pet. dism'd) (involving assault by a man upon a woman). Nor do we view it as striking at the moral sentiment of the community. It is wrong, but it does not evince a morally bad person having a defective character. Thus, the crime is not one of moral turpitude, and the trial court did not abuse its discretion in refusing to allow appellant to use the conviction to impeach the witness.
Issue Four - Factual Sufficiency of the EvidenceIn his final issue, appellant contends the evidence is factually insufficient to support the verdict. We overrule the issue.
The standard by which we review factual sufficiency challenges is well established and we need not reiterate it. Instead, we cite the parties to Zuliani v. State, No. 1168-01, 2003 Tex. Crim. App. Lexis 26 (Tex. Crim. App. February 5, 2003) and King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000) for its explanation.
Next, appellant was found guilty of aggravated assault by intentionally, knowingly, or recklessly causing bodily injury to Ruben Valdez by striking Valdez with a board that was a deadly weapon in that the manner of use and intended use was capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. §22.02(a) (Vernon 1994).
Next, the record contains the following evidence. Appellant had been hired by Valdez, who worked for Larry Denson, the owner of a roofing company, to tear off old roof shingles. While appellant was working, part of the roof caved in because too many shingles had been piled on top of it. Denson had also received a complaint that the roofers were drinking on the job. Thus, Valdez was told to fire appellant, which he did. Thereafter, appellant left a message on Denson's phone not only identifying himself but also stating that he was "going to get" Valdez.
Later, a young man came to the door of Valdez' home and asked if he could get help with his car, which car contained appellant and another individual. Upon approaching the car, Valdez was hit by a board wielded by one of the men. Valdez was then able to get to his vehicle and retrieve a pry bar from it. One of the men then ran away after dropping the board. At that point, Valdez retrieved the board and advanced upon the other man. Appellant then exited the car and stated he was going to kill Valdez. Although Valdez was able to initially hit appellant with the board, the other man intervened and Valdez himself was ultimately beaten by the assailants with the board. Valdez received a laceration on his scalp that required nine staples and sustained multiple broken fingers as well as bruises. Valdez subsequently identified appellant as one of the assailants, though he initially referred to appellant as Freddy Martinez (rather than Dominguez). This evidence permits a rational jury to conclude, beyond reasonable doubt, that appellant was either the primary assailant or a party to the assault as alleged in the indictment. (1)
While questions arose as to whether the board admitted as an exhibit at trial was the one used to strike Valdez, as to Valdez' mischaracterization of appellant's last name, and as to appellant's claim of self-defense, the evidence was nonetheless sufficient to warrant conviction. (2) It was for the jury to credit those witnesses and that evidence which it chose to credit. Furthermore, the testimony of Valdez was not inherently unbelievable or that of appellant indisputable. The jury could have believed either and their respective versions of what occurred.
In short, the evidence of guilt is not so weak as to render the verdict clearly wrong or manifestly unjust. Nor is the finding of guilt so contrary to the great weight and preponderance of the evidence as to be clearly wrong. So, the evidence is factually sufficient to support the verdict.
The judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
1. At trial, the court included a party charge in its instructions to the jury.
2.