Michael Dwayne Thomas v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00053-CR

______________________________

MICHAEL DWAYNE THOMAS, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

---

                                              

On Appeal from the 115th Judicial District Court

Upshur County, Texas

Trial Court No. 13,475

---

                                                 

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          On January 14, 2004, Michael Dwayne Thomas was convicted by a jury in the 115th Judicial District Court of Upshur County, Texas, of the offense of evading arrest or detention with a vehicle. Because of prior felony convictions, Thomas' sentence was eligible for enhancement. The jury sentenced Thomas to fifteen years' imprisonment and assessed a fine of $5,000.00.

          Thomas filed a notice of appeal pro se January 22, 2004. A motion for new trial, filed by counsel on Thomas' behalf, was filed January 30, 2004, and denied by the trial court February 9, 2004.

          We have been presented with a motion to dismiss Thomas' appeal, signed by both Thomas and his appellate counsel of record.

          We grant Thomas' motion and hereby dismiss this appeal.

 

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      January 11, 2005

Date Decided:         January 12, 2005

Do Not Publish

, 2006 Tex. Crim. App. LEXIS 2040, (Tex. Crim. App. Oct. 18, 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

The jury was charged that a person acts intentionally, or with intent "when it is his conscious objective or desire to engage in the conduct or cause the result." See Tex. Penal Code Ann. § 6.03(a) (Vernon 2003).

Walter Kemp, M.D., a forensic pathologist who performed the autopsy on Corbin's body, testified that Corbin (although with no skull fractures) had brain hemorrhaging and bleeding around the optic nerve as the result of head trauma and that Corbin had multiple rib fractures. Kemp stated that Corbin's injuries were consistent with shaken baby syndrome and that Corbin died sometime between minutes to six hours after the injuries were inflicted. Kemp further stated that all the injuries were very recent and were inflicted at the same time. The head trauma would alone be lethal, and he testified that the fractured ribs could also cause or contribute to the death. He testified that all the injuries were consistent with holding the baby under the armpits, shaking him, and putting him down in a forceful manner on something like a sofa. Kemp emphasized that normal handling could not cause such a result, nor even accidental drops from a low height--such injuries require a "significant" amount of force to be applied.

There was also testimony that Jessica called a long-time family friend, Christine Adams, and told her that she had confessed to the murder and that she had killed her son. ⁽⁴⁾

This evidence is supportive of a conclusion by the jury that it was Jessica's conscious desire to engage in that conduct. It does not necessarily require the intent to cause the result: death. It only requires that the action itself be intentionally done. Further, the charge also allowed conviction for capital murder if the act was done knowingly or with knowledge.

A person acts knowingly or with knowledge, with respect to the nature of his or her conduct when that person is aware of the nature of the conduct. A person acts knowingly, or with knowledge, with respect to a result of his or her conduct when that person is aware that the conduct is reasonably certain to cause the result. See Tex. Penal Code Ann. § 6.03(b) (Vernon 2003). The evidence would also support a conclusion that Jessica acted knowingly when she took the actions--and there is evidence that those actions resulted in the child's death.

The arguments to the contrary consist of nothing more than speculation and surmise. There is no evidence to connect Dewayne, or any other person, to the injuries to the child. The evidence is legally and factually sufficient to support the verdict.

Jessica next complains that the court erred by denying her motion for continuance so that she could attempt to obtain additional witnesses. The two witnesses had been subpoenaed for a prior setting, but no additional subpoenas had been issued for the instant trial, and the witnesses did not appear. The motion for continuance was made orally. The Texas Court of Criminal Appeals has held specifically that a motion for continuance must be made in writing, and must be sworn--otherwise, any complaint is waived. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999). The contention has not been preserved for our review.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: August 14, 2006

Date Decided: November 21, 2006

Do Not Publish

1. See Tex. Penal Code Ann. § 12.31(a) (Vernon Supp. 2006).

2. To avoid confusion, we will use first names for those persons with a common last name.

3. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005).

4. In an odd statement, Adams testified that Jessica called her, crying and very, very upset, and said, "I wrote a written confession. I said, do what. She said, I wrote a written confession. I killed Corbin. I said why are you saying that, why did you do that. She told me that God made her do it and that Dewayne was God. And I didn't want to hear anymore." Adams further testified that Jessica had Dewayne "wrapped around her finger," that Dewayne was not a controlling personality, and that she could make no sense of the "God" statement at all.