IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 20, 2007
______________________________
CAMERON CLAY FLATHERS, APPELLANT
V.
THE TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
NO. 2006-599,811; HONORABLE PAULA LANEHART, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
OPINION
Pending before this Court is Appellant's (sic) Motion for Dismissal. (1) The Department alleges that Cameron Clay Flathers's Notice of Appeal was not timely filed and thus this Court lacks jurisdiction over the appeal. The motion is opposed; however, Flathers did not file a response. We agree with the Department and dismiss this appeal.
On November 15, 2006, an administrative hearing was held on Flathers's contest to the Department's order to suspend his driver's license. The administrative law judge issued an order authorizing the Department to suspend Flathers's license, and Flathers appealed the decision to the County Court at Law. Sitting in an appellate capacity, on January 9, 2007, the court conducted a hearing which resulted in a judgment that the administrative law judge had not abused his discretion in ordering suspension of Flathers's driver's license.
The court's judgment was signed on February 2, 2007. On February 14th, Flathers filed a request for findings of fact and conclusions of law pursuant to Rule 296 of the Texas Rules of Civil Procedure. His notice of appeal was filed on April 9, 2007, sixty-six days after judgment was signed.
As a general rule, in order to invoke the jurisdiction of an appellate court the appellant must file a notice of appeal within 30 days after the judgment is signed. Tex. R. App. P. 26.1. However, Rule 26.1(a)(4) of the Texas Rules of Appellate Procedure extends the time in which to file a notice of appeal to ninety days after judgment is signed when a timely request for findings of fact and conclusions of law is filed. This rule, however, specifically limits application of the ninety-day deadline to those situations where findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court. (Emphasis added).
Rule 296 of the Texas Rules of Civil Procedure provides that a party may request findings of fact and conclusions of law in any case tried in the district or county court after a conventional trial on the merits. The mere right to request findings of fact and conclusions of law does not extend the time for perfecting appeal of a judgment rendered as a matter of law, where findings and conclusions can have no purpose and cannot be properly considered by the appellate court. IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997) (holding that a request for findings and conclusions did extend the time for perfecting an appeal where there was a factual dispute over explanations for alleged discovery abuse). (2) Where judgment is rendered as a matter of law, a party is not entitled to findings and conclusions. See Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994) (explaining why a request for findings of fact has "no place" in a case concluded by summary judgment and why a request for findings and conclusions does not extend appellate deadlines pursuant to Rule 26.1(a)(4)).
A person whose driver's license has been administratively suspended may appeal the suspension by timely filing a petition in a county court at law in the appropriate county. Tex. Transp. Code Ann. § 524.041 (Vernon 2007). The appeal is not a trial de novo; but is, instead, limited to the record of the administrative hearing as certified by the State Office of Administrative Hearings. § 524.043. The trial court may order the presentation of additional evidence if it is satisfied that additional evidence is material and that there were good reasons for the failure to present that evidence before the administrative law judge. §524.043(b). In those cases where additional evidence is not received, the scope of review is limited to a determination of whether the substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are not reasonably supported by substantial evidence. Tex. Gov't Code Ann. § 2001.174 (Vernon 2000); Texas Department of Public Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006).
Whether or not there is substantial evidence to support an administrative decision is a question of law. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000). The court that heard Flathers's appeal from the administrative decision to suspend his driver's license heard only arguments from counsel and did not hear additional evidence pursuant to § 524.043(b). Because there was no factual dispute presented to the trial court we conclude that Flathers's request for findings of fact and conclusions of law could not have properly been considered and thus, did not extend the time in which to file his notice of appeal. The notice was due on March 4, 2007, thirty days from the trial court's February 2, 2007 judgment. Tex. R. App. P. 26.1. Flathers's notice filed on April 9, 2007, is untimely and deprives this Court of jurisdiction to consider his appeal.
Consequently, the appeal is dismissed for want of jurisdiction.
Patrick A. Pirtle
Justice
1. Although delineated as Appellant's Motion for Dismissal, the motion was in fact filed by the Appellee, the Texas Department of Public Safety.
2. See also Texas Dept. of Public Safety v. Alford, 154 S.W.3d 133, 141 (Tex.App.-Waco 2004) (dissenting opinion concluding that the majority erred in suggesting that the Texas Department of Public Safety should have requested findings of fact and conclusions of law because findings and conclusions would not have been proper in an administrative appeal under the substantial evidence rule), rev'd on other grounds, 209 S.W.3d 101 (Tex. 2006).
in the course of committing theft" is defined to mean "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Tex. Pen. Code. Ann. § 29.01(1) (Vernon Supp. 2003). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03 (Vernon 2007).
Legal Sufficiency
In conducting a legal sufficiency review, we must determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App. 2006); Fowler v. State, 65 S.W.3d 116, 118 (Tex.App.-Amarillo 2001, no pet.). A reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Hernandez v. State, 190 S.W.3d 856, 863-64 (Tex.Crim.App. 2006). As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded to their testimony. Id. The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. Id. We must uphold the jury's verdict against a legal sufficiency challenge unless it is irrational or unsupported by more than a mere modicum of evidence. Fowler, 65 S.W.3d at 118 (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). Factual Sufficiency
Evidence supporting guilt, though legally sufficient, may be factually insufficient because it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or because evidence contrary to the verdict is such that the jury's verdict is against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In a factual sufficiency review, we consider all the evidence in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414. Although an appellate court's authority to review factual sufficiency permits the court to disagree with the fact finder's determinations, the appellate court must accord them due deference, particularly those determinations concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9.
Effect of Court's Charge
We initially address appellant's contention that our evaluation of the sufficiency of the evidence in this case is circumscribed by language of the court's charge. The charge allowed the jury to find appellant guilty of burglary of a habitation with intent to commit robbery, or the lesser offenses of burglary of a habitation with intent to commit theft, or criminal trespass. With respect to the offense of burglary of a habitation with intent to commit robbery, the abstract portion of the charge contained this language:
In this case, the indictment having charged that the burglarious entry, if any, was made with the intent to commit the crime of robbery, a felony, before you would be warranted in finding defendant guilty, you must be satisfied from the evidence beyond a reasonable doubt that the entry, if any, was so made, without the effective consent of the owner, with the intent to commit the specific crime of robbery.
Appellant also notes the charge in other places refers to "burglary with intent to commit robbery," and notes that the verdict form provided the jury for that offense (which contains the jury's verdict) states, "We, the jury, find from the evidence beyond a reasonable doubt the defendant is guilty of the offense of burglary of a habitation with intent to commit robbery, as charged in the indictment." Appellant argues that, by the noted references in the charge and by its failure to provide the jury with a verdict form more generally allowing a finding of guilt of burglary of a habitation, (3) the trial court narrowed the jury's focus and limited its consideration only to the definition of burglary of a habitation set forth in subsection (a)(1) of § 30.02, requiring proof that the defendant entered the habitation with intent to commit robbery. For that reason, appellant contends, our review of the evidence should consider only its sufficiency to support a conviction under that theory of the offense.
Under Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997), however, we must measure the sufficiency of the evidence "by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. at 240. Such a standard, the court said in Malik, ensures that a judgment of acquittal is reserved for cases in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted. Id.
Here, Count II of the indictment read as follows:
And further, in Lubbock County, Texas, Javier Myers, hereafter styled the Defendant, heretofore on or about the 19th day of August, A.D. 2004, did then and there intentionally, without the effective consent of John Hernandez, the owner thereof, enter a habitation with intent to commit robbery and did then and there commit the offense of robbery.
As can be seen, Count II alleged that appellant entered the habitation with intent to commit robbery, and also alleged that he then and there committed the offense of robbery. (4) It thus encompassed two of the three means of commission of the offense, those set out in subsections (a)(1) and (a)(3) of section 30.02. (5) A hypothetically correct jury charge therefore would include both means. See Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000) (applying Malik to indictment's manner and means allegations); Malik, 953 S.W.2d at 240 (hypothetically correct charge does not unnecessarily restrict the State's theories of liability). (6) The court's charge to the jury correctly set forth the elements of the offense and the relevant definitions. Our evaluation of the sufficiency of the evidence presented at trial therefore cannot be limited to the manner of commission of the offense described in subsection (a)(1). See Gollihar v. State, 46 S.W.3d 243, 254-55 (Tex.Crim.App. 2001) (stating that when a statute defines alternative methods of manner and means of committing an element and the indictment alleges only one of those methods, "the law" for purposes of the hypothetically correct charge is the single method alleged in the indictment). Analysis
Legal Sufficiency
Consistent with his contention regarding the effect of the court's charge on the sufficiency analysis, appellant focuses his legal sufficiency argument on the requirement of § 30.02(a)(1) for proof he possessed the intent to commit robbery at the time of his entry into Hernandez's residence. See, e.g., Moore v. State, 54 S.W.3d 529, 539 (Tex.App.-Fort Worth 2001, pet. ref'd) (applying requirement that burglarious entry be made with the intent to commit felony). He contends the record is devoid of evidence he possessed the intent to commit robbery when he entered the residence, and likens the evidence produced here to that in Lewis v. State, 638 S.W.2d 148 (Tex.App.-El Paso 1982, pet. ref'd). In Lewis, the court found legally insufficient the evidence that the defendant committed burglary with intent to commit aggravated assault. Testimony showed that before the defendant fled the residence, he swung a small iron hammer at the complainant's head. After analyzing the evidence, the court stated, "Even viewing the evidence in a light most favorable to the verdict, the record overwhelmingly reveals a burglary with intent to commit theft, interrupted by the arrival of the owner and resulting in a violent confrontation." Id. at 152. The court noted there was no testimony describing the source of the hammer. The hammer itself was not in evidence, and no evidence described its dimensions, weight or manner of use. It further noted the evidence did not reveal the proximity of the combatants or the proximity of the hammer swing to the complainant. The court concluded that evidence of the defendant's use of the hammer, while pertinent to the assessment of his intent at the time of entry, did not in that case permit an inference that he entered with the intent to commit aggravated assault. Id. at 151-52. (7)
Appellant contends the evidence here likewise is insufficient to permit an inference of his intent to commit the assaultive offense of robbery at the time he entered Hernandez's home. The evidence present here concerning the nature of the tire iron and appellant's use of it greatly exceeds that present in Lewis. The tire iron was before the jury. The evidence leaves little doubt that appellant and his accomplice used it to break into Hernandez's home. Testimony established appellant had the tool in his hand as he tried to make his escape from the residence, and both Hernandez and Nina described his raising it as if preparing to bring it down on Hernandez during their struggle. Comparison with Lewis does not aid appellant's contention on appeal that the evidence against him was insufficient.
Our disposition of appellant's legal sufficiency issue does not turn, moreover, on the evidence that he possessed intent to commit robbery when he entered the habitation. As discussed, the issue must be overruled if the evidence was legally sufficient under either of the theories embodied in the hypothetically correct charge.
The State's case was presented through the testimony of Hernandez, his sister Nina, and one of the DPS troopers, and through photographs and the video recording made by the trooper's dashboard camera. We have no difficulty concluding that, viewed in the proper light, the evidence would permit a rational finder of fact to find, beyond reasonable doubt, the requisite elements of the offense under section 30.02(a)(3), requiring, in this case, proof that appellant entered Hernandez's habitation without his consent and there committed robbery.
Hernandez testified that he did not know appellant, did not give appellant permission or consent to enter his home, and felt threatened appellant would inflict bodily injury on him with the crow bar appellant had in his hands. "Under the 'placed in fear' language in section 29.02 of the Texas Penal Code, the factfinder may conclude that an individual perceived fear or was 'placed in fear,' in circumstances where no actual threats were conveyed by the accused." Williams v. State, 827 S.W.2d 614, 616 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). On cross-examination, Hernandez clarified that appellant "took the stance to swing" the crow bar at him and "raised it up in the act of hitting" him. Hernandez testified that appellant then brought the crow bar down "about an inch." Hernandez flinched at the motion and was ready to block the swing with his forearm but ultimately was not required to do so because appellant did not complete the blow. As noted, he testified he "felt threatened" that appellant might inflict bodily injury on him.
The evidence is legally sufficient to establish that appellant entered Hernandez's home without consent and there, while in the course of committing theft and with the requisite intent, placed Hernandez in fear of imminent bodily injury. Appellant's first issue is overruled.
Factual Sufficiency
Appellant's factual sufficiency challenge also is based on his assertion that language of the charge required the State to prove his intent to commit robbery existed when he entered the habitation. He does not contend that the jury heard evidence contrary to his guilt on a theory he entered the residence without consent and there committed robbery. In considering factual sufficiency, we defer to the jury's determination in matters of credibility and weight of any conflicting evidence and inferences. Johnson, 23 S.W.3d at 8. It was within the jury's discretion to determine the relative weight to accord the testimony and evidence presented at trial and the jury was entitled to discount the weight of or to disregard all or any part of any of the evidence so presented. Id. Having considered the entirety of the evidence in a neutral light, we conclude that the proof of appellant's guilt is neither so obviously weak as to undermine confidence in the jury's determination, nor such that it is greatly outweighed by contrary proof. Thus, the proof is factually sufficient to support the verdict. We overrule appellant's second issue.
Having found the proof both legally and factually sufficient to support appellant's conviction, and thus overruled his issues on appeal, we affirm the trial court's judgment.
James T. Campbell
Justice
Do not publish.
Quinn, C.J., dissenting.
1. Count I of the indictment charged appellant with burglary of a habitation with intent to commit aggravated assault, and Count III with burglary of a habitation with intent to commit theft. All three counts were based on the same events. The State elected to try appellant only on Count II.
2. Although photographs and other testimony indicate the item actually was a tire iron, it was often referred to as a crow bar.
3. Appellant contrasts the verdict form provided by the court with a "general verdict form for 'burglary of a habitation, as alleged in the indictment,' " which, he states, would have included "all three manner and means or definitions" of the offense.
4. While the State may allege alternative means of commission of an offense in the conjunctive in an indictment and describe them in the disjunctive in the jury charge, Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991), the application paragraph of the jury charge here tracks the conjunctive language used in the indictment. In any event, however, sufficiency of the evidence is not to be measured by the language of the application paragraph but instead is to be measured against the hypothetically correct jury charge. Gollihar v. State, 46 S.W.3d 243, 252 (Tex.Crim.App. 2001).
5. The indictment omitted any allegation that appellant entered the habitation and there attempted to commit robbery.
6. The dissent does not read Count II of the indictment to include an allegation appellant committed the offense of burglary of a habitation in the means described in Penal Code § 30.02(a)(3). Our reading of Count II as including such an allegation is supported by the discussion of it in appellant's brief.
7. See also id. at 153 (op. on reh'g).