Frank Groenteman v. Lisa A. Groenteman ( 2010 )

                                                            NO. 07-10-0268-CV

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL B

                                                           SEPTEMBER 9, 2010

                                            ______________________________

                                                        FRANK GROENTEMAN,

Appellant

                                                                            V.

                                                          LISA GROENTEMAN,

Appellee

_________________________________

                       FROM THE 367th DISTRICT COURT OF DENTON COUNTY;

                  NO. 2010-50554-367; HONORABLE E. LEE GABRIEL, PRESIDING

                                           _______________________________

                                                  ORDER DISMISSING APPEAL

    _______________________________

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

Appellant has filed a motion to dismiss.  Without passing on the merits of the case, we grant the motion pursuant to Texas Rule of Appellate Procedure 42.1(a)(1) and dismiss the appeal. Having dismissed the appeal at appellant=s request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

Brian Quinn

       Chief Justice

ppears that counsel considered the situation and made an affirmative decision to forego testing. He may well have had a legitimate reason for deciding as he did. Indeed, the decision could have been made to prevent appellant from having an opportunity to make incriminating statements or to add fodder to the State's argument that appellant had the mental faculty of an adult. Yet, we are left to simply guess about those reasons. And, most importantly, counsel was not afforded an opportunity to explain them. So, the record does not show on its face that the decision of counsel was something other than reasonable trial strategy. Tong v. State, supra; Jackson v. State, supra.

Issue Four - Legal and Factual Sufficiency of the Evidence

Appellant argues in his fourth issue that the evidence is both legally and factually insufficient to support a finding that he shot the complainant or that he intended to steal her vehicle. We overrule the point.

The standards by which we review challenges to the sufficiency of the evidence are well settled, and we refer the parties to Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000), and Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996), for explanations of the same.

Next, the substance of appellant's complaint is that the testimony of the accomplices and the fingerprint evidence is conflicting. The fingerprint evidence showed appellant's right palm print on the outside of the driver's window with his right thumb print on the inside. There was also testimony that it would take 14 pounds of pressure to pull the trigger on the gun used to commit the offense. Although Marissa testified that appellant had both hands on the gun when he shot Rosa, she did not state that appellant placed his hands on the vehicle. Thus, appellant argues that the evidence is legally and factually insufficient to show that he held onto the window while pulling the trigger. Marissa also stated that nothing was taken from the car and the car itself was not taken. Therefore, appellant contends, that evidence does not support a finding that he intended to steal the vehicle.

The indictment charged that appellant "unlawfully, while in the course of committing and attempting to commit the Robbery of Rosa Martinez, . . . intentionally cause[d] the death of the Complainant by shooting the Complainant with a deadly weapon, namely a firearm." There was evidence presented at trial illustrating that appellant and his friends decided to go "jacking" and they followed Rosa's car to "jack" it. And, according to both Juan and Marissa, appellant shot the complainant while Miguel was trying to get the vehicle from Rosa. This evidence, if believed, was and is sufficient to allow a rational trier of fact to find beyond a reasonable doubt that appellant shot the complainant while attempting to steal her car, and the proof to support that finding is not so weak as to undermine confidence in the jury's verdict. Any conflicts between that evidence and other evidence presented at trial were for the jury to resolve. Moody v. State, 830 S.W.2d 698, 700 (Tex. App.--Houston [1^st Dist.] 1992, pet. ref'd).

Accordingly, the judgment of the trial court is affirmed.

Brian Quinn

Justice

Do not publish.

1.

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. tex. gov.'t code ann. §75.002(a)(1) (Vernon Supp. 2002).

2.

Appellant was represented by three defense counsel at trial.

3.

Upon reading appellant's allegations, we discovered that they were mere conclusions lacking citation to legal authority. That is, he either failed to explain why the conduct he complained of was deficient (other than by simply concluding that it was) or he failed to provide us with citation to legal authority holding that like conduct was deficient. Given this, the allegations were not properly briefed. See Tex. R. App. P. 38.1(h) (requiring citation to legal authority and argument supporting the contentions made).

4.

A motion for new trial was filed, but it was not based on any claims of ineffective assistance.