Nicholas Anthony Conner v. State

NO. 07-02-0459-CR

IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL E



OCTOBER 23, 2003



______________________________





NICHOLAS ANTHONY CONNOR, APPELLANT



V.



THE STATE OF TEXAS, APPELLEE





_________________________________



FROM THE CRIMINAL JUDICIAL DISTRICT COURT OF JEFFERSON COUNTY;



NO. TRN 9062416934; HONORABLE CHARLES D. CARVER, JUDGE



_______________________________



Before QUINN and REAVIS, JJ., and BOYD, S.J. (1)

MEMORANDUM OPINION

In this appeal, appellant challenges his conviction, after a guilty plea, of murder by the use of a deadly weapon, and the resulting court-assessed punishment of 20 years confinement in the Institutional Division of the Department of Criminal Justice. In doing so, he presents two issues for our decision. Those issues are: 1) the evidence is both legally and factually insufficient to sustain his conviction, and 2) the trial court erred in admitting his confession "because the issue of voluntariness precludes the trial court" from its admission. Disagreeing that reversal is required, we affirm the judgment of the trial court.

Because the issues are interrelated, we will discuss them together. In appeals in which both legal and factual sufficiency questions are presented, we must first determine if the evidence is legally sufficient to sustain the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In determining the legal sufficiency of the evidence, we must view it in a light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In making that determination, we consider all of the evidence presented, whether properly or improperly admitted, Green v. State, 893 S.W.2d 536, 640 (Tex. Crim. App.1991), and without examining the factfinder's weighing of the evidence, determine if there is evidence supporting the verdict. Clewis, 922 S.W.2d at 132 n.10. A sustention of the legal sufficiency challenge requires a judgment of acquittal.

In contrast, resolution of a factual sufficiency challenge requires the reviewing court to view all of the evidence in a neutral light, favoring neither party, Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000), and it may only set aside the verdict if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129. Moreover, in conducting the review, the reviewing court must give appropriate weight to the factfinder's conclusion so as not to substantially intrude upon the factfinder's role as the sole judge of the weight and credibility given to witness testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997).

Where, as here, a defendant pleads guilty or nolo contendere, the State must introduce sufficient evidence to support the plea and show the defendant is guilty. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2003). See also Ex parte Martin, 747 S.W.2d 789 (Tex. Crim. App. 1988). The evidence may be stipulated if the defendant in writing waives the appearance, confrontation, and cross-examination of witnesses and consents to the introduction of documentary evidence in support of the judgment. The waiver and consent must be approved by the trial court in writing and be filed with the papers of the cause. Tex. Code Crim. Proc. Ann. art. 1.15.

At the time of the hearing on his guilty plea, appellant admitted that he was entering his plea of his own free will after consultation with his attorney, he admitted that he understood the charge against him, the range of punishment attached to the crime and, even understanding these matters, he still persisted in continuing with the plea. This record is amply sufficient to show that all applicable statutory requirements in connection with appellant's guilty plea were complied with. The evidence is both legally and factually sufficient to sustain the judgment of the trial court in all respects. See Dinnery v. State, 592 S.W.2 343 (Tex. Crim. App. 1980); Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978); Sexton v. State, 476 S.W.2d 320 (Tex. Crim. App. 1972); and Soto v. State, 456 S.W.2d 389 (Tex. Crim. App. 1970).

Appellant's issues are overruled and the judgment of the trial court is affirmed.



John T. Boyd

Senior Justice



Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

ffort to determine if an adult was present. No one responded. Hill did finally locate Jennifer asleep in the bedroom with a male companion. Upon Hill's third request for Jennifer to rouse herself, Jennifer complied.

There was animal urine and feces in the apartment. One of the children was seen walking barefoot in it. Another child had a bottle of curdled milk. There were also dirty dishes present. So too were flies everywhere; some attempted to alight on the faces and in the mouths of the children. One of the children was also seen to be unclean and wearing clothes that did not match the child's size; this led Hill to believe that the youth dressed herself. The other child wore, as previously mentioned, a soiled diaper. Furthermore, the children had access to a tattoo gun with needles, spray painted towels, paints, cigarette lighters, cigarette butts, and cereal resting in a bowl on the floor, which cereal was apparently meant for the dog.

Amber Gibson, the stepmother of one of Jennifer's older daughters, also confirmed that "95 percent" of the time she went to pick up her stepdaughter there were dirty clothes everywhere. On one occasion, when Gibson arrived to take the child, the dirty clothes were stacked inside a closet "about four foot deep." And, when she asked Jennifer to give her clothes for the child, Jennifer simply reached into the stack and handed her dirty items. Also seen by Gibson were dishes piled in the sink for several days. Bottles of curdled milk would be lying on the floor. Trash and toys would be strewn about. H.B. was "often dirty" and her hair would be matted to her head. And, Gibson's stepdaughter "at times . . . would come to [her] house with caked dirt around her mouth and in her hands and on her scalp." Mary Floyd, the grandmother of another of Jennifer's older daughters (and now that child's managing conservator) testified that Jennifer had in the past left her granddaughter with an individual named Hugh for three days without enough food or clothing. Jennifer would also leave the child with Floyd for extended periods of time without attempting to contact the girl. Next, according to Floyd, Jennifer's "house was . . . beyond dirty from one end to the other." And, often Floyd's grandchild would be dirty when she arrived to pick the girl up.

When called to testify, Glenda Joan Maxwell said that Jennifer would leave all her children on multiple occasions and for extended periods (e.g. three or four days) with Maxwell's brother, Hugh. The latter had a mental handicap and was considered to be "[l]ow functioning." Furthermore, Maxwell was not aware of Hugh having any type of training to care for children. Maxwell also informed Jennifer of rumors that Hugh "had touched her girls inappropriately." And, on one occasion the girls were found, in Hugh's house, only in panties or towels. Because of the rumors, Jennifer was asked to stop leaving her children with him. The request went unheeded. Jennifer continued to take the girls to his house. Eventually, Hugh was indicted or charged with indecency with children. (3)

Continually exposing the children to unsanitary living conditions, allowing them to remain physically dirty, allowing them to be cared for over extended periods of time by a "low functioning" mentally handicapped person who lacked training in the area of child care, failing to provide for the children when left with Hugh for extended periods, and ignoring the warnings about their exposure to potential sexual abuse constitutes ample evidence entitling a reasonable factfinder to form a firm belief or conviction that Jennifer knowingly placed or knowingly allowed her children to remain in conditions or surroundings which endangered the physical or emotional well-being of H.B. and B.P. This is so despite Jennifer's denial that she had any weaknesses in her parenting skills. Consequently, there is both legally and factually sufficient evidence to support the trial court's finding that §161.001(1)(D) of the Texas Family Code had been satisfied.

Having found the evidence sufficient to support termination under §161.001(1)(D), it is unnecessary for us to address the other statutory ground upon which termination was based. Accordingly, we overrule Jennifer's contention and affirm the order of termination.



Brian Quinn

Justice



1. The parental rights of the fathers of H.B. and B.P. were also terminated, but they did not appeal.

2.

Jennifer did not contest the finding that termination was in the best interest of the children.

3.

Jennifer denied that she was aware of any concerns that Hugh may have sexually molested children at the times she left her offspring with him.