Donald Elijah Matthews, Jr. v. State

NO. 07-08-0363-CR

                                                     NO. 07-08-0364-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

DECEMBER 4, 2009

______________________________

DONALD ELIJAH MATTHEWS, JR.,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NOS. 57,858-A & 57,859-A; HON. HAL MINER, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

          Appellant Donald Elijah Matthews, Jr. was convicted of violating a protective order and committing arson. He contends that the evidence is both legally and factually insufficient to sustain those convictions. We disagree and affirm the judgments.

          Standard of Review

          The applicable standards of review are explained in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) and their progeny. We refer the parties to those cases.

          Violation of a Protective Order

          Appellant was initially charged with intentionally or knowingly violating the terms of a protective order issued under Chapter 85 of the Texas Family Code. The violation occurred, according to the indictment, through his intentionally or knowingly committing family violence against Lakesha Matthews (his wife) by assaulting her on or about May 10, 2008. According to appellant, the act in which he engaged on May 10, 2008, was too vague to constitute an assault. That act involved his threatening to “get” Lakesha. The utterance was made through the window of his car as he drove it next to hers early that morning.

          According to the record, the protective order was issued in March of 2008 and remained effective until March of 2009. Between the date of its issuance and through May 10, 2008, appellant had not only told Lakesha that he was going to “get” her, he had also rammed his car into hers on May 6, 2008, while she was driving it. So too had he entered Lakesha’s car in April of 2008, bit her finger, made it bleed, and sat on her as he drove the vehicle across a park. Each of those instances happened after the issuance of the protective order and on or before May 10, 2008. And, because the indictment was not written in such a way as to restrict the assault to any one of those events, the record contains more than some evidence illustrating that appellant assaulted Lakesha on or before May 10, 2008, in violation of the protective order. And, the jury’s verdict to that effect is supported by more than weak evidence, is not contradicted by the great weight of the evidence, and is manifestly just. Because the conviction is supported by both legally and factually sufficient evidence, we overrule the issue.

          Arson

          Next, appellant attacks the sufficiency of the evidence to prove he committed arson. That is, he does not contest the evidence of a fire being started in a rear bedroom of the house. He simply suggests that the evidence fails to show that he started it. He believes this to be so since the testimony uttered by the only witness that saw him both contradicted that of the fire investigator and came from someone who disliked him. We overrule this issue as well.

          The witness in question was Lakesha’s daughter, who happened to be appellant’s step-child. She testified to seeing appellant return to the house on the morning of May 10, 2008, after he said he would “get” Lakesha, hearing breaking glass, seeing some cloth-like material that was ablaze enter the rear bedroom through the window, seeing appellant at the rear window of the bedroom in which the fire started, and then seeing him run out of the back yard. Admittedly, portions of her testimony about what in the bedroom first ignited differed from that of the fire investigator who testified. So too did the investigator indicate that he believed the rear bedroom window was intact during the blaze. Yet, neither of those matters dealt with the identity of who started the fire. That is, the fire chief’s testimony did not indicate that someone other than appellant started it. Moreover, pictures of the rear window actually suggest that it was broken since all that remained was a burned, framed opening without glass.

          As for the likelihood that the witness disliked appellant, that matter simply created credibility issues, as did the purported contradictions mentioned above. And, since it fell to the jury to weigh and resolve them, it could choose whether to believe the step-child when she identified appellant as the one who set the fire. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) (stating that it falls within the province of the jury to resolve credibility issues). Finally, the step-child’s testimony, if believed by the fact finder, was more than sufficient for a rational trier of fact to believe beyond a reasonable doubt that appellant started the fire with intent to destroy or damage the habitation. See Tex. Penal Code Ann. §28.02(a)(2)(A) (Vernon Supp. 2009) (stating that a person commits arson if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage a habitation knowing that it was within the limits of an incorporated city or town). And, we cannot say that any contradictions in the evidence regarding tangential issues, the witness’ supposed bias, or even testimony from appellant’s mother suggesting that appellant was home undermines in any way our confidence in the verdict.

          Accordingly, the judgments of the trial court are affirmed.

 

                                                                           Brian Quinn

                                                                          Chief Justice

 

Do not publish.

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NO. 07-10-00292-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL B

 

JULY 7, 2011

 

 

DOMINIC TOMLINSON, APPELLANT

 

v.

 

THE STATE OF TEXAS, APPELLEE

 

 

 FROM THE CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY;

 

NO. 1169831D; HONORABLE ELIZABETH BERRY, JUDGE

 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

 

 

MEMORANDUM OPINION

            Appellant, Dominic Tomlinson, entered a plea of guilty to the offense of aggravated robbery.[1]  After entry of appellant’s plea of guilty, the trial court ordered the preparation of a pre-sentence investigation report.  Subsequently, the trial court conducted a hearing on punishment.  Following the receipt of evidence on punishment, appellant was sentenced to confinement for a period of 20 years in the Institutional Division of the Texas Department of Criminal Justice.  Appellant appeals the judgment of the trial court.  We will affirm the judgment of the trial court.

Appellant=s attorney has filed an Anders brief and a motion to withdraw.  Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 498 (1967).  In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated.  Id. at 744-45.  In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court=s judgment.  Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter.  Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991).  The court has also advised appellant of his right to file a pro se response.  Appellant has not filed a response.  By his Anders brief, counsel reviewed all grounds that could possibly support an appeal, but concludes the appeal is frivolous.  We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal.  See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).  We have found no such arguable grounds and agree with counsel that the appeal is frivolous.

 

Accordingly, counsel=s motion to withdraw is hereby granted, and the trial court=s judgment is affirmed.[2]

 

                                                                                                Mackey K. Hancock

                                                       Justice

Do not publish.

 

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[1] See Tex. Penal Code Ann. § 29.03(a) (West 2011).

[2] Counsel shall, within five days after this opinion is handed down, send his client a copy of the opinion and judgment, along with notification of appellant=s right to file a pro se petition for discretionary review.  See Tex. R. App. P. 48.4.