Michelle Smith v. State ( 2008 )


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  • NO. 07-07-0481-CR


    IN THE COURT OF APPEALS


    FOR THE SEVENTH DISTRICT OF TEXAS


    AT AMARILLO


    PANEL C


    JANUARY 3, 2008


    ______________________________



    MICHELLE SMITH, APPELLANT


    V.


    THE STATE OF TEXAS, APPELLEE



    _________________________________


    FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;


    NO. 4839; HONORABLE DAVID MCCOY, JUDGE


    _______________________________


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

    ABATEMENT AND REMAND

              Appellant, Michelle Smith, filed a notice of appeal from the trial court’s order deferring adjudication of guilt for tampering with a governmental record. The clerk’s record filed on December 12, 2007, contains the Trial Court’s Certification of Defendant’s Right of Appeal. However, the form does not comply with Rule 25.2(d) of the Texas Rules of Appellate Procedure nor is it signed by Appellant as required by the Rule.

              Consequently, we abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly executed, the certification shall be included in a supplemental clerk’s record and filed with this Court on or before January 25, 2008.

              It is so ordered.

                                                                               Per Curiam

    Do not publish.

    iciency of the evidence, appellant seeks acquittal. He believes himself entitled to same because the evidence of guilt generally came from one witness (the victim) and the officers purportedly conducted a poor investigation which could have resulted in the loss or contamination of evidence which could possibly have been exculpatory. We overrule the issue.

               A conviction for aggravated sexual assault may be sustained on the uncorroborated testimony of the victim alone. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Aleman v. State, 795 S.W.2d 332, 335 (Tex. App.–Amarillo 1990, no pet.). Moreover, while the officers never identified the actual devices or weapons used by appellant to assault the victim, it was not necessary that they be offered into evidence to secure conviction. Aleman v. State, 795 S.W.2d at 335.

     

              As for the purported inadequacies in the investigation, they encompassed its thoroughness and tenor. Included therein was the officers’ failure to investigate appellant’s explanation for having blood on his hands, their failure to conduct DNA testing on a curling iron found at the scene, their failure to secure the crime site, and their decision to move the victim’s bloody clothing from one room to another. So too did appellant decry the lack of information imparted to medical personnel when conducting their examinations of the victim. While these may or may not be deficiencies, appellant did not cite us to any evidence illustrating the actual loss of exculpatory evidence. Instead, he merely posited that such evidence could have been lost or that the crime scene could have been contaminated. And, these matters were before the jury.

              Also before the jury was evidence that the victim was hysterical when first approached by officers, that the victim was severely beaten about her face, that the victim’s pubic area was sore, that appellant had blood on his hands, that the victim’s bloody clothes were found in the residence, that appellant did not immediately allow officers access to his residence, that as the officers were required to remain outside they heard appellant moving around inside, that a basket containing a curling iron had been moved, that it was not possible to obtain DNA samples from a curling iron, and that appellant’s injuries were inconsistent with appellant’s explanation about how they occurred.

              Simply put, the evidence admitted at trial was far from uncontradicted. And even if it raised concerns about the thoroughness of the official investigation, it did not necessarily nullify the victim’s testimony about the attack. Rather, it gave rise to questions of fact for the jury to resolve. Furthermore, the jury was free to weigh issues of credibility and disbelieve appellant’s explanation for the victim’s injuries. And, given the state of the evidence, we cannot say that resolving the disputes as it did was and is against the great weight of the evidence. Nor is our confidence in the verdict undermined. In sum, the evidence is factually sufficient to support the conviction.

              Accordingly, we affirm the judgment.

     

                                                                               Brian Quinn

                                                                              Chief Justice


    Do not publish.

Document Info

Docket Number: 07-07-00481-CR

Filed Date: 1/3/2008

Precedential Status: Precedential

Modified Date: 9/8/2015