Benjamin Alonzo Zepeda v. State

• Court: Court of Appeals of Texas
• Decided: May 14, 2003
• Docket: 07-03-00135-CR
• Status: Published

Opinion

NO. 07-03-0135-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 14, 2003

______________________________

BENJAMIN ALONZO ZEPEDA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 251^ST DISTRICT COURT OF POTTER COUNTY;

NO. 44,027-C; HONORABLE PAT PIRTLE, JUDGE

_______________________________

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

ABATEMENT AND REMAND

On March 19, 2003, a copy of a Notice of Appeal in cause No. 44,027-C in the 251st District Court of Potter County, Texas (the trial court), was filed with the clerk of this court (the appellate clerk). The document filed gives notice that Benjamin Alonzo Zepeda, appellant, desires to appeal from a conviction and sentence in such court and cause number. On March 24, 2003, a docketing statement was filed with the appellate clerk.

On April 16, 2003, the District Clerk of Potter County (the trial court clerk) advised that the clerk's record had not been paid for, the clerk had not received an affidavit of indigency from appellant, and appellant's attorney had not made arrangements to pay for the record. The clerk's record has not been filed.

On April 17, 2003, the appellate clerk sent a letter to appellant's attorney directing counsel to advise this Court on the status of appellant's indigency. No response to that letter has been received to date. The appellate clerk's record reflects no other action by any party to the appeal to prosecute the appeal.

Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 37.3(a)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, then whether appellant is indigent; (3) if appellant desires to prosecute this appeal, whether appellant is entitled to have the clerk's record furnished without charge; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the clerk's record will be promptly filed and that the appeal will be diligently pursued.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a clerk's record on remand; (3) cause the hearing proceedings to be transcribed and included in a reporter's record; and (4) have a record of the proceedings made to the extent any of the proceedings are not included in the clerk's record or the reporter's record. In the absence of a request for extension of time from the trial court, the clerk's record on remand, reporter's record of the hearing and proceedings pursuant to this order, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than June 16, 2003.

Per Curiam

Do not publish.

sans-serif">MEMORANDUM OPINION

          Appellant, Aubrey Joe Johnson, appeals his conviction for the offense of attempted indecency with a child by contact, enhanced by two prior felonies, and sentence of twenty five years contending that the evidence was legally insufficient. We affirm.

Background

          On April 22, 2005, appellant drove his vehicle near an apartment residence where three girls were present; the girls’ ages were from 12 to 14. After circling the area for a while, appellant stopped his vehicle and called the girls over. When the girls arrived, appellant asked the girls if any of them wished to pet or see his dog. One of the girls rejected the offer because she was afraid that the dog would bite; however, appellant said, “No, not that dog–the dog in my pants.” Appellant then followed that remark by looking down at his crotch area. One of the girls contacted her mother and the mother confronted appellant. Appellant denied any such remarks and claimed to be searching for a friend of his who lived in the neighborhood. The girls and the mother reported the incident to the police who arrested appellant a few days later.

          At trial, the three girls testified to the encounter with appellant. At the close of the State’s case, appellant requested an instructed verdict which was denied. At the conclusion of the jury trial, the jury returned a verdict of guilty and the trial court sentenced appellant to twenty-five years incarceration in the Institutional Division of the Texas Department of Criminal Justice. Appellant now appeals contending that the evidence presented at trial is legally insufficient to support the conviction because it does not show an act amounting to more than mere preparation that tends but fails to effect the commission of the intended offense.

Standard of Review

          In reviewing the legal sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). The standard of review applicable to the denial of a motion for directed verdict is the same as that applied in reviewing the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996); Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990) (challenge to the trial judge's ruling on a motion for an instructed verdict is a challenge to the sufficiency of the evidence). However, the jury is the sole judge of the weight and credibility of the evidence. Clewis v. State, 922 S.W.2d 126, 132 n.10 (Tex.Crim.App. 1996) (citing Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury’s verdict unless it is irrational or unsupported by more than a “mere modicum” of evidence. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We resolve inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Furthermore, the standard of review is the same for both direct and circumstantial evidence. Id.

Law and Analysis

          The sole focus of appellant’s argument is the denial of his motion for instructed verdict. Appellant argued that the State failed to show that his actions were not mere preparatory actions that tended to but failed to effect the commission of the crime charged. A person attempts a criminal offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. See Tex. Penal Code Ann. § 15.01 (Vernon 2003). A person commits indecency with a child if, with a child younger than 17 years and not the person's spouse, engages in sexual contact with the child or causes the child to engage in sexual contact. See § 21.11. Thus, this case turns on whether appellant’s actions were more than just preparation. In this case, the State had the three girls testify to the conversation appellant had with one of the girls. The girl who spoke to appellant testified that appellant asked her if she wanted to see his dog - the dog in his pants. The other two girls testified that appellant asked if the first girl wanted to pet the dog in his pants. Additionally, two of the girls testified that appellant was driving up and down the street and would, on occasion, look at them. Further, the two girls testified that appellant asked if they could meet him somewhere, with one of the girls testifying that appellant specifically asked the girls if they wanted to go to a park with him. All three girls testified that appellant spoke to the first girl and then glanced down to his pants indicating his private area. Through cross examination, appellant’s version of the encounter indicated that he was searching for an acquaintance that lived in the neighborhood.

          However, the jury is the sole weight of the credibility of the evidence. Clewis, 922 S.W.2d at 132 n.10. Though the girls’ testimony had some inconsistencies, we must view the evidence in favor of the verdict. Curry, 30 S.W.3d at 406. Appellant contends that his action of glancing down to his pants, at most, can only be viewed as preparatory action that tends to but fails to effect the commission of the offense. See § 15.01. However, we believe that this act, though circumstantial, can be viewed in the totality of the evidence as indicative of appellant’s intent. See Christensen v. State, 240 S.W.3d 25, 31 (Tex.App.–Houston [1^st Dist.] 2007, pet. ref’d) (appellate court to view all evidence combined coupled with reasonable inferences from the evidence). Taken together, the appellant’s conversation of going to the park and petting his dog, the repetitive trips by the girls’ location, and his glancing gesture toward his pants can establish the criminal intent to commit the charged offense beyond mere preparation. The multiple trips by the girls’ location could have been interpreted by the jury as appellant seeking a victim; appellant’s request and glancing gesture could have been interpreted by the jury as appellant’s directive to the girl or girls to commit the sexual contact. In viewing the evidence in favor of the verdict, it would be a reasonable inference to believe that appellant’s failure to complete a criminal offense of indecency with a child was not due to appellant’s lack of action beyond the preparation stage, but to the girls’ refusal to go with appellant to the park or to pet the dog in his pants. We conclude that the evidence viewed in the light most favorable to the verdict is legally sufficient.

Conclusion

          For the foregoing reasons, we affirm.  

                                                     Mackey K. Hancock

Justice