IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 15, 2006
______________________________
TOMAS RAMON HERNANDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;
NO. 3613; HONORABLE RON ENNS, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORANDUM OPINIONFollowing a plea of not guilty, appellant Tomas Ramon Hernandez was convicted by a jury of deadly conduct and punishment was assessed by the trial court at three years confinement, suspended for five years, and a $5,000 fine which was not suspended. Presenting a sole issue, appellant challenges the sufficiency of the evidence to support the culpable mental state of recklessness. We affirm.
Appellant skipped school and drove to a friend's ranch located approximately one block north of the Dumas city limits to discharge a shotgun and rifle with two other friends. They shot cans located on top of an eight-foot high fence post and shot upwards at birds. They also shot a cat and two cattle on property belonging to complainant Dale Richardson. He testified he found spent shotgun shells at one of his gates and then discovered his cat and cattle. He reported the incident, and an investigation led law enforcement to the owner of the firearms, who was one of appellant's friends.
By his sole issue, appellant maintains the evidence is insufficient to demonstrate the culpable mental state of recklessness to support a conviction for deadly conduct. (1) We disagree. Evidence is legally insufficient if, when viewed in a light most favorable to the prosecution, a rational trier of fact could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Burden v. State, 55 S.W.3d 608, 612-13 (Tex.Cr.App. 2001). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a "mere modicum" of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).
In conducting a factual sufficiency review, we must determine after considering all the evidence in a neutral light, whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Cr.App. 2004). It is the exclusive province of the jury to determine the credibility of the witnesses and the weight to be given their testimony, and unless the record clearly demonstrates a different result is appropriate, we must defer to the jury's determination. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Cr.App. 2000).
Appellant was charged with deadly conduct in a two-count indictment for knowingly discharging a firearm at or in the direction of a building and acting recklessly as to whether the building was occupied and for knowingly discharging a firearm at or in the direction of an individual. Tex. Pen. Code Ann. § 22.05(b)(1) and (2) (Vernon 2003). Under subparagraph (b)(2), two culpable mental states must be shown: the actor must knowingly discharge a firearm at or in the direction of a building and be reckless as to whether the building is occupied. See Yandell v. State, 46, S.W.3d 357, 361 (Tex.App.-Austin 2001, pet. ref'd). Recklessness is not required for discharging a firearm at or in the direction of an individual. See § 22.05(b)(1). Thus, because appellant challenges only the sufficiency of the evidence to support recklessness, we need only review whether appellant discharged a firearm at or in the direction of a building without regard to whether it was occupied.
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. See Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003). Whether a defendant committed an offense with the requisite mental state is an issue for the factfinder's determination and is almost always proven by circumstantial evidence. State v. Hart, 905 S.W.2d 690, 693 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). A culpable mental state may be inferred from the accused's acts or words. Moore v. State, 969 S.W.2d 4, 10 (Tex.Cr.App. 1998).
The Chief Deputy of the Sheriff's Office testified there were homes located within the range of the shotgun and shells used by appellant. Two houses located to the west and Richardson's cattle stalls and another neighbor's building across the road and to the east were within throwing distance from where appellant discharged the firearms. Richardson confirmed a yellow street sign indicating, "Slow - Children At Play" is displayed in the vicinity. Other evidence established that a nearby home was occupied by children and another home was occupied by a sick, disabled woman.
One of appellant's friends, who had previously pled guilty to deadly conduct, testified he and appellant were facing north while shooting cans on the fence post, and he did not see any buildings when the firearms were discharged. All three individuals discharged the shotgun in an upwards direction at birds flying overhead. On cross-examination, he denied shooting at any houses and didn't think appellant had fired in the direction of any houses. He also denied seeing or shooting at a street sign indicating, "Slow - Children At Play."
From the circumstantial evidence presented, the jury could have inferred that appellant was aware of, but consciously disregarded, the substantial and unjustifiable risk of harm to an occupant of a nearby house or building and that his conduct constituted a deviation form the standard of care exercised by an ordinary person under the circumstances. We conclude the evidence is legally and factually sufficient to support appellant discharged firearms at or in the direction of a building and acted recklessly regarding whether the building was occupied. His sole issue is overruled.
Accordingly, the trial court's judgment is affirmed.
Don H. Reavis
Justice
Do not publish.
1. Although appellant does not specify if he is challenging the legal or factual sufficiency of the evidence, the only case he cites reviewed both. See Ford v. State, 38 S.W.3d 836, 846 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). In the interest of justice, we will conduct a legal and factual sufficiency review.
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NO. 07-10-00254-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 28, 2011
IN RE R. WAYNE JOHNSON, RELATOR
Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.[1]
MEMORANDUM OPINION
Relator R. Wayne Johnson, acting pro se, seeks a writ of mandamus directed at respondent, the Honorable Robert W. Kinkaid, Jr., Judge of the 64th District Court of Hale County. Relator=s amended petition asks that we direct Judge Kinkaid to sign an order granting relators request for a temporary restraining order. We will deny relators amended petition.
To be entitled to mandamus relief in a circumstance like this, a relator must show that the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re McAllen Medical Center Inc., 275 S.W.3d 458, 462 (Tex. 2008), citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). The mandamus record must include every document that is material to the claim for relief and that was filed in the underlying proceeding. Tex. R. App. P. 52.7; Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 658 (Tex. 1992). This means relator must provide an adequate record to substantiate the allegations contained in the petition for mandamus. Id.; Packer, 827 S.W.2d 833, 837 (Tex. 1992). Absent a sufficient record, mandamus will not issue. Id.
Relator asserts he filed a TRO and an amended TRO in the trial court and sent copies directly to respondent. The record does not contain copies of either application, making the record insufficient on which to grant relators petition for mandamus. Tex. R. App. P. 52.7; Dallas Morning News, 842 S.W.2d at 658; Packer, 827 S.W.2d at 837. For that reason alone, relators petition must be denied.
Moreover, relators amended petition falls considerably short of demonstrating Judge Kincaid clearly abused his discretion with respect to relators request for relief. The petition does not demonstrate even minimal compliance with the rules regarding issuance of a temporary restraining order. See, e.g., Tex. R. Civ. P. 680, 684.
Nor does relator demonstrate compliance with other provisions of law applicable to his civil suit. Through the numerous appeals and original proceedings relator has filed in this court, we take judicial notice of the prefiling order that requires relator to obtain the permission of the local administrative judge before filing a civil suit in a Texas court.[2] See Tex. Civ. Prac. & Rem. Code Ann. § 11.101 et seq. (West 2002); Tex. R. Civ. P. 685 (on grant of temporary restraining order, cause shall be entered on docket of court if not pertaining to pending suit). Nothing shows relator has complied with Chapter 11 of the Civil Practice and Remedies Code.
Relators petition indicates also that relator is an inmate in the Institutional Division of the Texas Department of Criminal Justice. The action he seeks to bring in Judge Kincaids court is not brought under the Family Code. The action therefore is subject to the inmate litigation provisions of Chapter 14 of the Civil Practice and Remedies Code, and nothing demonstrates relator has complied with its requirements. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.002 (scope of chapter), 14.004 (requiring filing of affidavit relating to previous filings) (West 2009).
For all those reasons, relators mandamus petition fails to demonstrate an abuse of discretion on Judge Kincaids part.
Lastly, while the body of relators petition for mandamus indicates he is asking this court to order Judge Kincaid to either grant or deny his request for a temporary restraining order, the order relator has submitted with his petition, which relator requests that we direct the judge to sign, grants the relief sought. Relator thus is not simply asking us to direct the trial court to rule, he is asking us to direct the ruling of the trial court on a matter on which it has not ruled, an improper request. See, e.g., In re Duffy, No. 07-09-0090-CV, 2009 Tex. App. Lexis 2738, at *4-5 (Tex.App.--Amarillo Apr. 20, 2009, orig. proceeding) (mem. op.); In re Minnfee, No. 07-09-0005-CV, 2009 Tex. App. Lexis 332, at *1-2 (Tex.App.--Amarillo Jan. 16, 2009, orig. proceeding) (per curiam).
For the reasons stated, we deny the petition for writ of mandamus.[3]
James T. Campbell
Justice
[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
[2] See In re R. Wayne Johnson, No. 07-09-0035-CV, 2009 Tex. App. Lexis 6831, *4-5 (Tex.App.--Amarillo Aug. 27, 2009, orig. proceeding) (per curiam, mem. op.) (addressing order of 156th Judicial District Court of Bee County declaring relator a vexatious litigant). Order available at http://www.courts.state.tx.us/oca/vexatiouslitigants.asp. Nothing in relators petition or the record indicates he obtained, or even requested, permission of the local administrative judge to file his civil suit. See Tex. Civ. Prac. & Rem. Code Ann. § 11.103(a) (clerk may not file suit of vexatious litigant subject to prefiling order unless litigant obtains order from local administrative judge permitting filing).
[3] In this proceeding, relator also has filed a motion in which he suggests the trial court lacks jurisdiction over the suit he filed in Hale County because of the mandatory venue provision of § 15.019 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 15.019 (West 2009). Relator is incarcerated in Potter County. A court does not lack jurisdiction merely because it is an improper venue under the mandatory venue provision of § 15.019 of the Civil Practice and Remedies Code. Scott v. Gallagher, 209 S.W.3d 262, 264 (Tex.App.--Houston [1st Dist.] 2006, no pet.); In re Johnson, 12-07-00032-CV, 2007 Tex. App. LEXIS 673 (Tex. App.--Tyler Jan. 31, 2007, orig. proceeding) (mem. op). If a cause of action is a statutory cause of action, as opposed to a constitutional or common law cause of action, and the statute provides that suit must be prosecuted in the courts of a single county, such provisions have been said to be jurisdictional. See State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.Corpus Christi 1989, writ denied) (so holding and citing cases). Having no trial court pleadings before us, we are not in a position to consider whether relators underlying suit implicates the doctrine discussed in Benavides, 772 S.W.2d at 273. Because the record before us is inadequate and because of the procedural posture of the case in the trial court, we decline to address relators motion further. Accordingly, relators motion is dismissed.