IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
APRIL 15, 2008
______________________________JUSTIN CURTIS OEHLERT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 15547-C; HON. ANA ESTEVEZ, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before QUINN, C.J. and CAMPBELL and HANCOCK, JJ.
Justin Curtis Oehlert was convicted of aggravated robbery and sentenced to twelve years confinement and a $10,000 fine. He contends that conviction should be overturned because the evidence is legally and factually insufficient to show that he had reached an agreement to act with another for a common purpose or that he acted with intent to promote or assist in the commission of the offense. We affirm the judgment.
Standard of Review
The standards by which we review the legal and factual sufficiency of the evidence are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for an explanation of them.
Application of Standard
On October 5, 2003, a man (James Percy Hensley) entered the patio area and then the rear door of Applebee's Restaurant on Soncy Road in Amarillo after closing time and by use of a gun forced the manager to give him three Amarillo National Bank bags containing money. He exited the restaurant and ran to the passenger side of a white S-10 pickup truck parked next to a nearby McDonald's restaurant. Approximately twenty minutes later, a similar pickup truck was seen by police officers about seven blocks away. When the vehicle was stopped, Hensley, the passenger, fled the vehicle. He was later apprehended with two of the money bags. The third money bag was found by appellant. Appellant contended at trial that he had borrowed a truck from a friend and when he made a stop, Hensley entered it with a gun and forced him to drive to the restaurant. Why appellant did not leave while Hensley left to commit the robbery went unexplained. Moreover, Hensley informed an officer that it was appellant who made him commit the offense to pay a drug debt. Irrespective of who forced who to act, other evidence illustrated that 1) appellant had previously been a cook for Applebee's Restaurant and was known to fellow employees as "Weiner," 2) the employees knew that after closing, the locked back door was often propped open to allow trash to be removed from the restaurant, 3) the employees knew that the patio door was often broken, 4) another employee at the restaurant had met both appellant and Hensley at the home of a different restaurant employee although not necessarily at the same time, and 5) Hensley referred to appellant by his nickname "Weiner."
The jury was instructed it could find appellant guilty if it believed he acted as a party to the robbery. See Tex. Pen. Code Ann. §7.02(a)(2) (Vernon 2003) (one acts as a party when, with intent to promote or assist the commission of the offense, he solicited, encouraged, directed, aided, or attempted to aid in committing the offense). The foregoing litany of evidence was enough to permit a rational jury to reasonably conclude, beyond reasonable doubt, that appellant aided Hensley with the intent to promote or assist in the robbery. And that the stories of Hensley and appellant differed did little more than create fact disputes and credibility issues for the jury to resolve. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Moreover, the evidence indicative of guilt was not so weak or minuscule to undermine our confidence in the verdict. So, we conclude that the verdict was supported by both legally and factually sufficient evidence.
The judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
rt did have the authority to extend the community supervision term from five years to six because it did not exceed the maximum of ten years set forth in the Code. Because appellant's community supervision term had not expired at the time of her subsequent arrest and hearing, due diligence on the part of the State to place appellant under arrest was not an issue. Rodriguez v. State, 804 S.W.2d 516 (Tex.Cr.App. 1991).
By her pro se brief, appellant also argues her two year sentence is excessive. We disagree. Appellant's conviction for unauthorized use of a motor vehicle, a state jail felony, carries a penalty of 180 days to two years confinement. Tex. Pen. Code Ann. § 12.35(a) (Vernon 1994). A trial court is vested with a great degree of discretion in imposing an appropriate sentence. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Cr.App. 1984) (en banc). Any punishment assessed within the range authorized by statute is not cruel and unusual and does not render the sentence excessive. Nunez v. State, 565 S.W.2d 536, 538 (Tex.Cr.App. 1978); Price v. State, 35 S.W.3d 136, 144 (Tex.App.-Waco 2000, pet. ref'd), citing McNew v. State, 608 S.W.2d 166, 174 (Tex.Cr.App. 1978).
Appellate review of a revocation order is limited to determining whether a trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App. 1984). In a proceeding to revoke community supervision, the burden of proof is on the State to show by a preponderance of the evidence that the probationer has violated a condition of community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Cr.App. 1993). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking community supervision. Cardona, 665 S.W.2d at 494. In determining the sufficiency of the evidence to sustain a revocation, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.Cr.App. 1979). Although one sufficient ground for revocation supports the trial court's order, Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App. 1980), a plea of true standing alone is sufficient to support the trial court's revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex.Cr.App. 1979).
A written stipulation of evidence was signed by appellant. She entered a plea of true to one of the allegations contained in the State's motion to revoke. The trial court found that appellant's plea of true was freely, voluntarily, knowingly, and intelligently made. In addition to the plea of true to her failure to pay court costs and fines, evidence was also presented that she failed to report to her community supervision officer, failed to report a change of address, and failed to complete community service. Based on the record before this Court, we find the trial court acted within its discretion in revoking appellant's community supervision.
We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no nonfrivolous issues and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).
Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
2. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).