Calvin Ray Perkins v. State

Calvin Ray Perkins v. State of Texas

IN THE

TENTH COURT OF APPEALS

No. 10-95-165-CR

     CALVIN RAY PERKINS,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 203rd District Court

Dallas County, Texas

Trial Court # F94-52962-P

                                                                                                                                                                                                                             

DISSENTING OPINION

                                                                                                                    

      Because I do not believe the majority opinion has analyzed the facts of the case in light of Cain v. State as instructed by the Court of Criminal Appeals, I respectfully dissent. Perkins v. State, 993 S.W.2d 116 (Tex. Crim. App. 1999). The majority correctly sets out the language of Cain reiterating the standard of review for factual sufficiency challenges to the evidence; however, I feel it fails to follow the teachings of Cain. The review is not sufficiently deferential to a review of all the evidence or to the fact finder’s determination of witness credibility, it virtually ignores the evidence which strongly supports the finding of guilt, and considers only the evidence that could be interpreted as favoring Perkins’s defense. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).

      The fundamental difference between my review of the record and that conducted by the majority seems to flow from the majority’s apparent resurrection of the “alternative reasonable hypothesis” construct. The majority focuses on the defense’s theory and the State’s failure to disprove it. The State’s burden to disprove alternative hypotheses was eliminated in Geesa. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991). Granted, the elimination of this construct pertained only to legal sufficiency reviews because factual sufficiency reviews were not conducted at that point in time. See Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). The recent addition and clarifications for a factual sufficiency review were surely not a resurrection of this requirement. See id; Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Johnson v. State, No. 1915-98, 2000 WL 140257 (Tex. Crim. App. February 9, 2000). Without express direction from the Court of Criminal Appeals, I will not resurrect the old construct and burden on the State to disprove alternative hypotheses. See Emanuel v. State, No. 10-98-00140-CR, slip op. at 2, n.1 (Tex. App.—Waco March 29, 2000, no pet. h.). The defendant’s evidence of an alternative reasonable hypotheses will be considered as part of the evidence weighed when conducting a factual sufficiency review. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). However, an alternative reasonable hypotheses is not dispositive if it is not directly disproved by the State. See Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).

      Justice Cummings, now retired, dissented from this Court’s original opinion. I see no reason to recreate the work he has already performed, and I adopt the factual recitations and conclusions of his dissenting opinion as my own. For the convenience of the reader, I have set out the full text of his dissent below:

I dissent because I cannot say that the trial court's finding of intoxication is so against the great weight and preponderance of the evidence as to be unjust and manifestly wrong. In conducting a factual-sufficiency review of the evidence, due deference must be given the [fact finder's] assessment of the witnesses' credibility and [its] resolution of any conflicts in the evidence. Jones v. State, No. 72,026, slip op. at 4, --- S.W.2d ----, ----, 1996 WL 732038 (Tex. Crim. App. December 18, 1996); Desselles v. State, 934 S.W.2d 874, 878 (Tex. App.—Waco 1996, no pet.). In conducting a factual-sufficiency review we are not allowed to sit as the "thirteenth juror" in the case. Desselles, at 878. Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App.1991).

In addition to the factual review in the majority opinion, there are several other important facts, the most alarming of which was the location where Mr. Perkins was found slumped over in his car. Apparently a passer-by notified some authority in Dallas that "someone was unconscious in the middle of the road." Dallas Firefighter Farrel testified that he was dispatched from downtown and that he and several other firemen went to the 8000 block of Military Parkway with their emergency lights and siren on. Upon arrival, he found a car straddling the middle of two eastbound traffic lanes of Military Parkway with Mr. Perkins slumped over in the front seat with his foot on the brake and the car running. The emergency lights and siren did not awaken Perkins. Farrel noted that Perkins was breathing and had a pulse, so he put the car in park and took the keys from the ignition to prevent Perkins from leaving the scene should he awaken before the police arrived.

Mr. Perkins testified that he had been parked where Farrel found him "probably five minutes" and that "... there was a lot of traffic out." Surely the trial court could have inferred from the evidence that Mr. Perkins had created an inherently dangerous traffic situation.

Additionally, as judge of the credibility of the witnesses, the trial judge could have taken into consideration the testimony of Mr. Perkins when he admitted on cross-examination that he had previously been convicted of DWI on an occasion where he had fallen asleep at the wheel of his car at a red light intersection in South Dallas. Further, at the time of this incident, Mr. Perkins was on probation and had been ordered not to drink alcoholic beverages. By his own admission to have drank one beer, he was in violation of that court order.

Finally, I disagree with the majority's opinion concerning the video tape. As I reviewed the tape, Mr. Perkins responses to the officers requests were slow and deliberate, almost as though he had trained himself to respond slow and carefully. Even at that, he did seem confused at times and occasionally swayed on his feet. He was not falling down drunk, but the trial court witnessed his actions in the courtroom when he testified. The trial court could have believed the prosecutor in his closing argument where he argued that there was a difference in Perkins' speech in the courtroom compared to his slurred speech in the video.

The fireman and arresting police officer both testified that Mr. Perkins was intoxicated on this occasion. This occasion was the second time Mr. Perkins had passed out on the street in his car. Going to sleep or passing out is further evidence of complete loss of mental and physical faculties. The only difference from the first time he was apprehended passed out behind the wheel of his car was that he was not taking medication. Here, he states that in addition to the one beer he admitted to drinking, he says he had taken Nyquil for his sinus problem. Both times he was drinking and both times he went to sleep on a public street. I believe the evidence is overwhelming in support of the trial court's finding of guilt and that the case should be affirmed.

Perkins v. State, 940 S.W.2d 365, 367 (Tex. App.—Waco 1997) (Cummings, J., dissenting) (rev’d, 993 S.W.2d 116 (Tex. Crim. App. 1999).

      I believe that upon a review of all the evidence, without viewing it in the light most favorable to either party, a rational fact finder could easily have found, beyond a reasonable doubt, that Perkins was intoxicated. Accordingly, I do not believe that the finding of intoxication is contrary to the evidence, much less so contrary to the overwhelming weight of the evidence as to make it clearly wrong and unjust. I would affirm the trial court’s judgment.

 

                                                                         TOM GRAY

                                                                         Justice

Dissenting opinion delivered and filed April 19, 2000

Publish

S.W.3d 638, 641-42 (Tex. App.—Dallas 2004, pet. filed).

          Accordingly, we sever Vernell Lee’s appeal from the remainder of the appeal.  See Tex. R. App. P. 8.3(b); Ma-Stell, 2005 Tex. App. LEXIS 3193, at *2.  The Clerk of this Court shall docket Lee’s appeal under cause number 10-05-00231-CV, styled Vernell Lee v. Maudie Wilson, individually and by and through her next friend, Minnie Carson.  The Clerk shall note in the severed cause that the Clerk’s and Reporter’s Records in this cause shall serve as the Clerk’s and Reporter’s Records in the severed cause.  See Ma-Stell, 2005 Tex. App. LEXIS 3193, at *2-3.

          This appeal is reinstated, and the Clerk of this Court shall re-style this appeal as Teague Nursing Home; Teague Management Co. dba Teague Nursing Home; Chelsia Taylor, individually and dba Teague Nursing Home; Hollis McGee, and Rita McAlpine v. Maudie Wilson, individually and by and through her next friend, Minnie Carson.  See Ma-Stell, 2005 Tex. App. LEXIS 3193, at *3.

          Any time period allowed for action under the appellate rules that had begun to run and had not expired when this proceeding was suspended begins anew on the date of this order.  See Tex. R. App. P. 8.2; Ma-Stell, 2005 Tex. App. LEXIS 3193, at *3.

          By letter dated April 8, 2005, the Clerk of this Court notified Appellants that the order being appealed does not appear to be an appealable interlocutory order under section 15.003 of the Civil Practice and Remedies Code.  Appellants were advised that they had twenty-one days to file a response showing grounds for continuing the appeal.  Seven of those twenty-one days had elapsed when Lee filed her bankruptcy petition.  Accordingly, Appellants’ response to this notice will be due fourteen days after the date of this order.

          This Court purported to grant Appellants’ motion for an extension of time to file the appellants’ brief on April 19.  However, the appeal was suspended at that time.  Accordingly, the motion is granted and Appellants’ brief is due within 30 days after the date of this order.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Order issued and filed May 25, 2005

[CV06]

 

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    [1]       The appellants in this cause are Teague Nursing Home; Teague Management Co. dba Teague Nursing Home; Chelsia Taylor, individually and dba Teague Nursing Home; Hollis McGee, Rita McAlpine, and Vernell Lee.