IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JANUARY 17, 2003
______________________________
IN THE INTEREST OF J.P., D.P. AND A.P., MINOR CHILDREN
_________________________________
FROM THE 320th DISTRICT COURT OF POTTER COUNTY;
NO. 65162-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J. (1)
MEMORANDUM OPINIONOn October 8, 2002, the clerk of this court received a copy of notice that appellant Noland Hill desired to appeal a judgment of the 320th District Court of Potter County. By letter dated October 10, 2002, the clerk advised appellant that a filing fee had not been received, see Tex. R. App. P. 5, nor had a docketing statement been filed. See Tex. R. App. P. 32.1. The clerk's letter likewise advised that no further action would be taken on the appeal by this Court until a filing fee had been paid and that failure to pay the filing fee may result in dismissal of the appeal. See Tex. R. App. P. 42.3.
By letter dated December 4, 2002, the clerk advised appellant that the filing fee still had not been paid, other specified actions had not been taken by appellant in regard to the appeal, and directed appellant to take certain actions in connection with the appeal. The clerk's letter of December 4th directed appellant to pay the filing fee, to certify to the clerk on or before December 20, 2002, that the directives in the clerk's letter had been complied with, and advised that failure to comply with the terms of the letter would result in dismissal of the appeal.
The filing fee has not been paid. Appellant has not complied with the clerk's direction to certify that he has complied with the directives in the clerk's letter of December 4, 2002.
This appeal is dismissed. Tex. R. App. P. 42.3.
Phil Johnson
Chief Justice
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
. Turner v. State, 805 S.W.2d 423, 430 (Tex.Crim.App. 1991). A "result of conduct" offense means that the accused had to have a particular mind set (i.e., intentional or knowing) to cause the prohibited result. Richie v. State, 149 S.W.3d 856, 857 (Tex.App.-Amarillo 2004, no pet.). Accordingly, a trial court must instruct the jury as to the appropriate mens rea, i.e., the result of appellant's conduct, in an attempted capital murder charge. Hughes v. State, 897 S.W.2d 285, 295 (Tex.Crim.App. 1994).
Appellant contends, and the State agrees, that the charge, as presented, contained a definition for intentional that included both nature of conduct and result of conduct elements. Further, both the appellant and the State agree that the abstract definition of knowingly, or with knowledge, in the charge did not contain the required result of conduct language. Likewise, both appellant and the State agree that trial counsel did not object to the charge before it was read to the jury.
Because the alleged jury charge error is raised for the first time on appeal, to reverse the judgment, any error must have resulted in egregious harm to appellant. Medina v. State, 7 S.W.3d 633, 639 (Tex.Crim.App. 1999). However, when the application paragraph, where the elements of the offense are applied to the particular accusation against the appellant, correctly instructs the jury regarding the result of conduct mens rea, an error contained in the abstract definitional paragraph is not egregious. Id. at 640. (1) Having found no egregious harm, appellant's first two issues are overruled.
Appellant next contends that the evidence is factually insufficient to prove beyond a reasonable doubt that appellant intended to cause the deaths of more than one person. When an appellant challenges the factual sufficiency of his conviction, the reviewing court must ultimately determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding defendant guilty beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which the evidence may be factually insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, considering all of the evidence, both for and against the verdict, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. While we review the evidence in a neutral light, we must give appropriate deference to the jury's evaluation of the evidence, resolution of any inconsistencies, and determination of the evidence's weight and value. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). We are not allowed to substitute our judgment for that of the jury unless the verdict is clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481-82.
A neutral review of the record reveals that appellant had multiple opportunities to see the occupants in Rubio's vehicle. Rubio testified that appellant's vehicle pulled up next to Rubio's side of the car and he made eye contact with appellant as appellant pointed a handgun at Rubio's vehicle. Magallan testified that, at one point, appellant was pointing the gun directly at her. Additionally, appellant's vehicle pulled ahead of Rubio's vehicle and appellant, while leaning out of the passenger's window, fired back at Rubio's vehicle through the front windshield. After Rubio escaped and while trying to get his wife into his father's apartment, appellant arrived. Appellant pointed the handgun at Rubio and Magallan and pulled the trigger, but the gun did not fire. Appellant then grinned at them and left. Further, the jury was shown pictures of Rubio's vehicle that demonstrated how appellant would have been able to see into the vehicle. After hearing the evidence, the jury found against the appellant. After reviewing all of the evidence in a neutral light, we cannot say that the verdict of the jury was not rationally justified. Id. at 484.
As we affirm the judgment of the trial court, we will address appellant's argument that the evidence was factually insufficient to support the verdict and explain why we do not find his argument persuasive. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Appellant contends that his intent on the night in question was to find someone named "Randy," who had allegedly choked his younger brother, and punish him for his transgression. According to appellant's theory, since his intent was to harm one person, the evidence cannot support his conviction of attempting to cause the death of two different individuals. While it is shown in the record that appellant may have initially thought he was chasing and shooting at one person, a review of the record, as detailed above, demonstrates that appellant had several occasions to view the occupants of the vehicle and, thus, it is rational to conclude that appellant was aware that there were two people in the car. The evidence, when viewed in a neutral light, supports the jury's implied finding that appellant intended to cause the death of two people. Thus, we conclude that the evidence was factually sufficient. Appellant's third issue is overruled.
Because we have overruled appellant's issues, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
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