Katherine Marie Hedglin v. State ( 2005 )

NO. 07-04-0093-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 20, 2005

______________________________



KATHERINE MARIE HEDGLIN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B14451-0205; HONORABLE ED SELF, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Katherine Marie Hedglin brings this appeal from the revocation of her community supervision. We affirm the revocation. Appellant was charged in a May 16, 2002 indictment with the offense of forgery. On November 19, 2002, appellant was convicted on her plea of guilty. Punishment was assessed at two years in a state jail facility, restitution of $300.00 and court costs. The confinement was suspended for a period of five years, conditioned on appellant's compliance with the terms of her community supervision.

The State filed a motion to revoke appellant's community supervision on February 3, 2004, alleging several violations of the conditions of her community supervision. The alleged violations included failure to abstain from the use of narcotics, failure to pay restitution and fees, failure to complete community service, and failure to take a GED test in the first year of her supervision.

At a hearing on February 23, 2004, appellant pled true to the allegations that she had failed to abstain from the use of narcotics, failed to complete community service and failed to take a GED test. Appellant signed a stipulation of evidence acknowledging that these allegations in the application to revoke probation were true and correct. Appellant pled not true to allegations that she failed to pay restitution and fees. There is nothing in the record to suggest that she was incompetent or that her pleas and stipulations were not made knowingly, voluntarily and intelligently.

At the hearing's conclusion the court found appellant had violated the conditions of her community supervision to which she plead true and found she had failed to pay restitution and fees. The court ordered her to serve the original two year sentence imposed on her conviction. She filed a notice of appeal and the trial court appointed counsel to represent her on appeal.

The trial court certified that appellant has the right to appeal the revocation. Appellant's counsel has filed a motion to withdraw, after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel has certified that the record has been carefully and conscientiously reviewed and that in the opinion of counsel, under the controlling authorities and facts of this case, there is no reversible error or legitimate grounds for appeal. The record reflects that appellant was informed of her rights to review the appellate record and file her own brief. This court informed appellant that any pro se brief she cared to file had to be filed by June 24, 2004. The court has received neither a pro se brief, response, or motion for an extension of time.

In compliance with the principles enunciated in Anders, appellate counsel discussed why the appeal was without merit. Counsel's legal analysis involved discussion of the sufficiency of the evidence to support the revocation. As counsel notes, a plea of "true" to any of the alleged violations in a motion to revoke is sufficient to support the trial court's order of revocation. Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979). We also have conducted an independent review of the record to determine whether there are any arguable grounds for appeal. Penson v. Ohio, 488 U.S. 75, 109 S.Ct 346, 102 L. Ed. 2d 300 (1988); Nichols v. State, 954 S.W.2d 83 (Tex.App.-San Antonio 1997, no pet.). We have found no such grounds and agree with appellate counsel that the appeal is without merit. Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974).

Accordingly, the motion to withdraw is granted, and the judgment is affirmed.

James T. Campbell

Justice

Do not publish.

State, 932 S.W.2d 296, 301 (Tex.App.-Austin 1996, pet. ref'd). Intent can be characterized as a contested issue for purposes of justifying the admission of extraneous offense evidence if the required intent for the primary offense cannot be inferred from the act itself or if the accused presents evidence to rebut the inference that the required intent existed. Id. at 302. Intent is most clearly in issue when the defendant argues that the charged offense was unintentional or the result of an accident. Id.

Appellant testified that Gary must have been injured while falling down the stairs. In fact, appellant testified that, "[I]t was an accident. I wasn't trying . . . to do nothing [sic], you know, trying to stick him." Hence, the State, who has the burden to prove the offense charged, is allowed to rebut appellant's claim of accident. Id. Once appellant claimed that Gary was stabbed by accident, intent can no longer be inferred from other uncontested direct evidence, and the State is allowed to prove intent through evidence of other crimes, wrongs, or acts. See id. at 302. The State is also allowed to show other violent acts of the defendant where the defendant was the aggressor. See id. Hence, the trial court could have allowed the admission of the extraneous offense evidence as rebuttal of appellant's contention that he lacked the requisite intent. See Tex. R. Evid. 404(b); Johnson, 932 S.W.2d at 301. Therefore, we conclude that the trial court did not err in admitting evidence of the extraneous offenses. We overrule appellant's second issue.

Factual Sufficiency ⁽¹⁾

When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we are to give deference to the fact finder's determinations if supported by the record and may not order a new trial simply because we may disagree with the verdict. See id. at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury's verdict. See id. Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

Appellant's contention is that the State did not demonstrate that appellant intended to produce the prohibited result. Appellant contends that he does not remember stabbing Gary and believes Gary was accidentally stabbed when the two fell down the stairs. Thus, appellant contends that the State has not shown that he "intentionally or knowingly" caused the death of Gary. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). However, the State presented other evidence to show that appellant had threatened others with violence and that appellant had chased another individual with a knife when appellant believed the individual had stolen money from him. The State also cross examined appellant and pointed out inconsistencies in his testimony that Gary was the aggressor and that Gary was threatening him. We, as an appellate court, are to defer to the fact finder's determinations if supported by the record. The jury in this case had evidence that could rationally justify a finding that appellant was guilty of intentionally and knowingly causing the death of Gary. Hence, we conclude that the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first issue.

Conclusion

For the foregoing reasons, we affirm.

Mackey K. Hancock

Justice

Do not publish.

1. Although appellant attempts to present his contention of factual sufficiency by discussing a non-existent denial of a motion for instructed verdict, we will construe his contention as simply raising factual sufficiency. See Tex. R. App. P. 38.9. See also Lewis v. State, 193 S.W.3d 137, 141 (Tex.App.-Houston [1^st Dist.] 2006, no pet.) (when appellant cites factual sufficiency law and applies it to his argument, the court may include a review of factual sufficiency).