William Fred Hamilton v. State of Texas ( 2001 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

William Fred Hamilton

Appellant

Vs.                   No. 11-00-00203-CR B Appeal from Harris County

State of Texas

Appellee

The jury convicted appellant of the offense of bribery and assessed his punishment at confinement for 5 years and a $1,000 fine. In accordance with the jury=s recommendation that the confinement portion of the punishment be suspended, the trial court suspended the imposition of the confinement portion of the sentence and placed appellant on community supervision for 10 years.  We affirm.

Appellant=s court-appointed appellate counsel has filed a brief in which she states that, after a thorough review of the record, she is unable to find any errors that can be advanced in good faith which would warrant a reversal.  Following the procedures outlined in Anders v. California, 386 U.S. 738 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel presents three arguable issues.

First, counsel challenges the sufficiency of the evidence.  In reviewing claims of legal sufficiency, we review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).  In deciding whether the evidence is factually sufficient to support the conviction, we review all of the evidence in a neutral light favoring neither party to determine if the verdict is clearly wrong and manifestly unjust or  against the great weight of the evidence.  Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Clewis v. State, supra. We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder.  Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, supra.  Due deference must be given to the fact finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, supra; Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).

The record reflects that appellant was employed by the City of Houston in the collections division as a community liaison. Appellant was authorized to issue citations for violations of certain city ordinances.

Lonnie Sewell testified that appellant issued him a citation for failing to remove tree waste from the curb in violation of a Houston city ordinance.  Sewell stated that, after the citation was dismissed, appellant called Sewell at home around 10:00 p.m. and stated that Ahe was going to have the case reopened if [Sewell] didn=t give him $400.00 the next day.@  The next day, Sewell called his cousin who worked for the city and asked her what to do.

The next person Sewell talked to was Houston Police Sergeant Larry Buzo.  Sewell told Sergeant Buzo about appellant=s phone call the night before.  Sewell also gave Sergeant Buzo a written statement.  Sewell agreed to be Awired up@ with a tape recorder and to meet with appellant.  Sergeant Buzo gave Sewell $100. 

Sewell arranged to meet appellant at Sewell=s mother=s house.  Appellant arrived in a Acity car@ that had a solid waste sign on the side.  Appellant told Sewell to get into the car.  As they rode around, they discussed the ticket.  Appellant wanted $400.  Sewell gave appellant a $100 bill and asked him Awould that take care of it.@  When appellant responded:  A[N]o,@ Sewell asked appellant to give him a Acouple more hours@ to get the additional money.  Appellant drove back to Sewell=s mother=s house and told Sewell to Abeep him back on his beeper@ when Sewell had the rest of the money. Sewell went inside the house until appellant left.

Sergeant Buzo took the tape Aoff of@ Sewell.  Later, Sergeant Buzo put 2 more tapes on  Sewell and gave Sewell $60 to give to appellant.  Sewell went back to the house and called appellant=s beeper.  Appellant responded Aimmediately.@  This time, appellant came to the house in his own personal car.  Sewell gave appellant the $60, and appellant told Sewell that Sewell Awas going to have to give him another additional 200 to pay his lawyer.@ Sewell told appellant that he would need more time.  Appellant then drove off. 

Sewell stated that Sergeant Buzo removed the two tapes and checked to be sure that Sewell had given appellant the $60. Sewell gave Sergeant Buzo a statement as to what had happened.  Sewell testified that he understood that appellant was taking the money in return for not refiling the citation and that the money was not Aany kind of political contribution@ to appellant. 

The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony.  TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981).  After reviewing all of the evidence in the light most favorable to the verdict, we find that a reasonable fact finder could have concluded that appellant committed the offense of bribery and that the evidence is legally sufficient.  This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@  Johnson v. State, supra at 9. The evidence, when reviewed in a neutral light, is factually sufficient; and we find that the conviction is neither clearly wrong and manifestly unjust nor against the great weight of the evidence.  The first issue is overruled. 

Next, counsel questions the effectiveness of appellant=s trial counsel, Charles Freeman.  In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991).

The record reflects that trial counsel Mr. Freeman filed numerous pretrial motions and that, during the course of three days, he conducted a thorough voir dire, objected to testimony, vigariously cross-examined the State=s witnesses, attempted to exclude evidence, and presented closing argument.  The record supports the contention that appellant was afforded reasonably effective assistance of counsel.

At trial, appellant objected to the admission of the arrest warrant and the supporting affidavit.  In the final issue, counsel questions the sufficiency of the affidavit.  Sergeant Buzo=s supporting affidavit states sufficient facts to authorize the issuance of the arrest warrant.  The trial court did not err in overruling appellant=s objection.  This issue is overruled.

Counsel has furnished appellant with a copy of the brief and has advised appellant of his right to review the record and file a pro se brief.  Counsel has complied with the procedures outlined in Anders v. California, supra; Stafford v. State, supra; High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

In his pro se brief, appellant details the events prior to his arrest.  Appellant states that he became involved in the hopes of securing a Abig promotion@ if he Acracked the longest running illegal dumping violation on the northside@ of Houston.  Appellant also contends that his retained counsel was Aintimidating and verbally abusive by directing [appellant] to sign a couple of documents@ and that, had his counsel worn Aa coat and tie@ instead of Afull white linen garb with skull cap,@ then Aperhaps the outcome might have been slightly different.@ Appellant further contends that the trial court added an additional five years to the five years assessed by the jury and that the trial court added eight stipulations to his probation, the violation of any one of which would result in Athe risk of going to@ prison. Appellant contends that ACounty Jail Employees@ informed his sister that his notice of appeal Ahad been granted@ and that, if he would drop the appeal, appellant could Aget out of jail.@

The record does not support appellant=s contentions in his pro se brief.  We note that the trial court followed the procedures in TEX. CODE CRIM. PRO. ANN. art. 42.12, '' 4, 10, & 11 (Vernon Supp. 2001).  All of appellant=s arguments have been considered, and each is overruled.

Following the procedures outlined in Anders, we have independently reviewed the record.  We agree that the appeal is without merit.

The judgment of the trial court is affirmed.

PER CURIAM

November 8, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b). 

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.