IN THE
TENTH COURT OF APPEALS
No. 10-89-237-CR
No. 10-89-238-CR
CHRISTOPHER COLT NALLEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court # 16,374 & 16,375
O P I N I O N
Appellant was convicted of two counts of indecency with a child and placed on probation for ten years. Thereafter, the State filed a motion in each case to revoke his probation, alleging that he had exposed himself to a group of children. The court revoked his probation and sentenced him to ten years in prison. The complaint on appeal is that the court abused its discretion in revoking his probation.
Once granted, probation should not be arbitrarily withdrawn by the court; the court is not authorized to revoke probation absent a showing that the probationer has violated a condition imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). In a revocation proceeding, the state must prove the allegations of the motion by a preponderance of the evidence. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1987). The burden is met when the greater weight of the credible evidence creates a reasonable belief that a condition of probation has been violated as alleged. Id. Even when the court finds the allegations of the motion to revoke the probation to be true, it has wide discretion to modify, continue, or revoke the probation. Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986). We review an order revoking probation by determining whether the court abused its discretion. See Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
The child testified that she knew to tell the truth, that she and some friends were going to the basketball court at the apartments where she lived, that she saw a "guy" with no clothes on in his apartment, that he said "hey, girls" and "dick," that she could see his private parts because he was naked, that he touched his private parts, and that Appellant was the "guy."
Appellant concedes that he did not object to the competency of the eight-year old as a witness. See Tex. R. Crim. Evid. 601(a)(2). When the child testified, the duty rested on the court as the sole trier of the facts to assess the credibility of her testimony and to determine the weight to give it. Tarver, 725 S.W.2d at 198; Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974).
Thus, based on the testimony of the child, the court could have determined that the greater weight of the credible evidence created a reasonable belief that Appellant exposed his genitals to the children with intent to gratify a sexual desire and that he was reckless about whether another was present who would be offended or alarmed by his acts. See Jenkins, 740 S.W.2d at 437; Tarver, 725 S.W.2d at 198; Tex. Penal Code Ann. § 21.08 (Vernon 1989). In so finding, the court could conclude that Appellant had violated a condition of his probation by committing an offense against the laws of the state. See Jenkins, 740 S.W.2d at 437; Tex. Penal Code Ann. § 21.08 (Vernon 1989). Because Appellant violated a condition of his probation, we cannot say that the court abused its discretion in revoking Appellant's probation. See Tarver, 725 S.W.2d at 200; Cardona, 665 S.W.2d at 493.
We affirm the judgment in each case.
BILL VANCE
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed December 4, 1991
Do not publish
e to the legal sufficiency of the evidence, we do not weigh favorable and non-favorable evidence. Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000)). Rather, we view all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (citing due process standard from Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). We consider both direct and circumstantial evidence as well as evidence improperly admitted. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Logan v. State, 48 S.W.3d 296, 299 (Tex. App.—Texarkana 2001), aff’d, 89 S.W.3d 619 (Tex. Crim. App. 2002). The judgment may not be reversed unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846-47 (Tex. Crim. App. 1991) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)); In re A.C., 48 S.W.3d 899, 903 (Tex. App.—Fort Worth 2001, pet. denied).
Reviewing the testimonies of Honeycutt, Trussel, Anastasio, and Hargrove in the light most favorable to the verdict, we find that a rational jury could have found beyond a reasonable doubt that Honeycutt arrested Hargrove at the police department for possession of cocaine. Burden, 55 S.W.3d at 612. The finding was not irrational or unsupported by proof beyond a reasonable doubt. Matson, 819 S.W.2d at 846-47.
Factual Sufficiency
In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the “in the light most favorable to the prosecution” construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Zuliani v. State, (Tex. Crim. App. Feb. 2, 2003); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).
We must also remain cognizant of the factfinder’s role and unique position—one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).
Honeycutt testified in response to several questions that he arrested Hargrove for possession of cocaine. Hargrove said he believed he was under arrest only for the marijuana charge, but he was never asked if Honeycutt told him he was being arrested for the cocaine charge. And although Trussell began the tape referring only to the arrest for the marijuana charge, the significance of that omission is reduced by his testimony that there was a discussion about dealing with the cocaine charge by Hargrove becoming an informant. Finally, Anastasio testified that Hargrove “was told he was filed on possession of crack cocaine that was found on him, and that he was going to jail that night.” Considering all the evidence, and deferring to the jury for credibility determinations, we do not find that the evidence “demonstrates that the proof of [the finding] is so obviously weak as to undermine confidence in the jury’s determination, or the proof of [the finding], although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson, 23 S.W.3d at 11.
Conclusion
The evidence is legally and factually sufficient to support a finding that Honeycutt arrested Hargrove for possession of cocaine, and that the arrest occurred before the escape. We overrule the sufficiency-of-the-evidence issues.
Necessity Defense
Hargrove proffered two employees from the county jail from whom he wanted to adduce testimony that, while being held at the jail, he had been allowed outside the locked premises, unshackled and sometimes unsupervised, to perform work duty, and he had not tried to escape. He argued that the testimonies would (1) support his “necessity” defense by showing that his “intent” in escaping from the officers was only to avoid being harmed by them, and (2) rebut testimony of his “intent” to escape to avoid incarceration, which was elicited from him by the State during his testimony—unobjected to—about three prior incidents in which he ran from police. “Necessity” is a justification for otherwise criminal conduct.
Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
Tex. Pen. Code Ann. § 9.22 (Vernon 2002). The trial court did not allow the witnesses to testify. The court did, however, allow the defense, and there were appropriate instructions in the jury charge.
We review a trial court’s decision to admit or exclude evidence for whether there is an abuse of discretion, i.e., for whether the trial judge's decision lies “within the zone of reasonable disagreement.” Rachal v. State, 917 S.W.2d 799, 816 (Tex. Crim. App. 1996); Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (opinion on reh’g)).
Hargrove first argues that his “character for trustworthiness” was at issue, and he was entitled to present evidence of it. Tex. R. Evid. 404(a)(1)(A). Without deciding whether “character for trustworthiness” was at issue, we note that he agrees that character evidence must be in the form of reputation or opinion evidence, which was not the form of the testimony of his two witnesses. Tex. R. Evid. 405(a); Brief of Appellant p. 23. Therefore, the trial court did not abuse its discretion in excluding the witnesses for this reason.
Hargrove next argues that the witnesses would have supported his “necessity” defense by showing that his “intent” in escaping was only to avoid being harmed by the officers. Tex. R. Evid. 404(b); Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998) (the defendant, not solely the State, may rely on Rule 404(b)); Gonzales v. State, 2 S.W.3d 600, 605 (Tex. App.—Texarkana 1999, pet. ref’d) (defendant may rely on 404(b) to prove his intent to self-defend). He says that, had his “intent” in escaping from the officers been to avoid incarceration, rather than to avoid being harmed by them, he would have also tried to escape at the jail when he had the opportunity. We agree with Hargrove that there is a logical relationship between his failure to try and escape from the jail and the “intent” aspect of his “necessity” defense. Thus the trial court abused its discretion in not allowing the testimonies on this basis.
Finally, Hargrove argues that the witnesses would have provided evidence of his “intent” to avoid immediate harm which would have rebutted the State’s evidence of three previous incidents in which he ran from police. Tex. R. Evid. 404(b); Tate, 981 S.W.2d at 193; cf. Webb v. State, 36 S.W.3d 164, 180 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (State may rebut defensive theory with Rule 404(b) evidence) (citing Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1996) (opinion on reh’g)). These three incidents created an inference that enhanced the State’s allegation that Hargrove escaped not from fear of harm but from fear of incarceration. We agree with Hargrove that the inference to be drawn from the witnesses’ testimonies about his “intent” tends to rebut the inference drawn from the State’s adducing the prior incidents of flight. Thus the trial court also abused its discretion in not allowing the testimonies on this basis.
Having found error, we must review for “harm.” We will disregard any error that does not affect a substantial right of the complaining party. Tex. R. App. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)). We do not reverse if, "after examining the record as [a] whole, [we have] fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001). The reviewing court should consider everything in the record, including all the evidence admitted, the closing arguments, and voir dire. Motilla v. State, 78 S.W.3d 352, 358 (Tex. Crim. App. 2002). The strength of the evidence of guilt, especially if it is overwhelming, is a factor to be considered. Id. at 357-58.
The testimonies of the witnesses who were excluded would have supported Hargrove’s “necessity” defense, because the defense depended on convincing the jury that he escaped not to avoid incarceration but to avoid being harmed by the officers. The testimonies, however, would not have been dispositive of that inquiry. Also part of the inquiry is that, on three previous occasions, Hargrove ran from police, and that he was, at the time of the escape, under arrest for two felonies. In addition, his credibility as a witness was at issue, and that is a matter for the jury which heard him testify that he had been to prison previously after being convicted in 2000 of possession of cocaine. Furthermore, Hargrove was not prevented from raising his “necessity” defense which was included in the jury charge and which he argued extensively in closing argument. Finally, there was ample evidence that he committed the offense. Therefore, we conclude "after examining the record as [a] whole, [that we have] fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson, 967 S.W.2d at 417.
We overrule these issues.
Conclusion
Having overruled Hargrove’s issues, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
(Justice Gray concurring)
Affirmed
Opinion delivered and filed July 30, 2003
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[CR25]