Clifton J. Holman v. State

• Court: Court of Appeals of Texas
• Decided: June 21, 2005
• Docket: 07-05-00031-CR
• Status: Published

Opinion

NO. 07-05-0031-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JUNE 21, 2005

______________________________

CLIFTON J. HOLMAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 364^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-402,602; HON. BRADLEY S. UNDERWOOD, PRESIDING _______________________________

Memorandum Opinion _______________________________

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

Clifton J. Holman (appellant) appeals his conviction for aggravated assault. The trial court initially deferred the adjudication of his guilt and placed him on community supervision for six years. Thereafter, the State moved to have his guilt adjudicated. After a hearing on the motion and entertaining evidence on punishment, the trial court adjudicated appellant guilty of aggravated assault and sentenced him to ten years imprisonment. Appellant then perfected this appeal.

Appellant's counsel has moved to withdraw, after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492 (1967) and representing that he has searched the record and found no arguable grounds for reversal. The motion and brief illustrate that counsel notified appellant of his right to review the appellate record and file his own brief. So too did we inform appellant that any pro se response or brief he cared to file had to be filed by May 27, 2005. On May 10, 2005, appellant filed a response.

In his response, appellant contends that 1) there was no evidence presented at his adjudication hearing, 2) a conflict of interest occurred because the victim of the offense and appellant's community supervision officer were "best friends," 3) new evidence exists that "is on record of the state," 4) the prosecuting attorney, Melissa Jo McNamara, and the victim "would call each other and talk about [appellant]" which resulted in another conflict of interest and 5) he never pled guilty to aggravated assault with a deadly weapon even though the trial court made a deadly weapon finding.

First, in reviewing the record, we find that appellant pled true to one of the allegations made in the State's motion to proceed; therefore sufficient evidence of record exists to support the adjudication of guilt. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979) (holding that a defendant's plea of true to an alleged violation, standing alone, is sufficient to support the revocation). Thus, we find this issue meritless.

Concerning the allegations about conflicts of interest and newly discovered evidence, appellant fails to show 1) how the relationship between the victim and his probation officer and the prosecuting attorney rose to the level of a conflict of interest and 2) the nature of the newly discovered evidence. Furthermore, nothing appears of record to illustrate the existence of a conflict or the presence of new evidence. The record containing no evidence illustrating same, we find these issues meritless as well.

Concerning the deadly weapon finding, according to the record, appellant pled guilty to the indictment for aggravated assault wherein it alleged the use of a deadly weapon, to wit: a vehicle. Thus, the trial court had before it evidence that appellant had used a deadly weapon in the commission of the crime, and this issue is also meritless.

Next, and in compliance with the principles enunciated in Anders, appellate counsel discussed four possible areas for appeal. They involved 1) double jeopardy, 2) the trial court's decision to judicially notice evidence at appellant's adjudication hearing, and 3) the legal and factual sufficiency of the evidence to justify a sentence of ten years. However, counsel explained why each lacked merit.

We have also conducted our own review of the record to assess the accuracy of appellate counsel's conclusions pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Finding no reversible error, we grant the motion to withdraw and affirm the judgment.

Per Curiam

Do not publish.

this supposedly represented the mere possession of stolen goods as opposed to evidence of the theft itself. And, he continues, the “[m]ere possession” of such property does not give rise to a presumption of guilt if reasonably explained. The explanation that he happened to proffer involved his cousin purportedly asking that appellant watch the trailer for several days in exchange for $20. We overrule the issue.

          The possession of stolen property may justify an inference of guilt if that possession is personal, recent, and unexplained and involves a conscious assertion of control over the property. Grant v. State, 566 S.W.2d 954, 956 (Tex. Crim. App. 1978). If the accused offers an explanation, the record must show that the account is false or unreasonable, Price v. State, 902 S.W.2d 677, 680 (Tex. App.–Amarillo 1995, no pet.), and whether the explanation is false or unreasonable is a question of fact. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.–Tyler 2001, no pet.); Price v. State, 902 S.W.2d at 680.

          In determining whether such an assertion of a right to the trailer was made and whether appellant’s explanation for the presence of the trailer was false or unreasonable, the jury had before it the following evidence: 1) the trailer was taken from the church on or about the 3^rd of January, 2008, 2) the trailer then was seen in front of appellant’s residence on January 3 or 4, 2008, 3) by January 5, it had been moved into the backyard behind a six-foot high wooden privacy fence, 4) there was no gate on the property through which the trailer could be moved into the backyard, 5) a portion of the fence had to be dismantled to effectuate the move, 6) appellant stated that he and his girlfriend moved it there, 7) four police officers had to dismantle a 16-foot section of the fence to remove the trailer from the backyard, 8) while the officers were investigating the scene, appellant arrived in a Delta 88 car along with two females, 9) the car had a towing hitch capable of pulling the trailer, 10) appellant was told by the officers to wait by the passenger seat of the car momentarily, 11) the location at which appellant waited had been previously searched by an officer, which search had uncovered nothing of note, 12) after appellant was told to move the car, however, one of the identifying plates previously installed on the trailer and torn pieces of appellant’s insurance card were discovered adjacent to where appellant had been waiting, 13) appellant admitted he “probably” tore up the insurance documents at some time, and 14) the actual license plate assigned to the trailer was found folded in half on top of appellant’s refrigerator inside his house. These circumstances depict more than mere possession of the stolen item. They also depict, on the part of appellant, acts to conceal the trailer’s location and identity. They further depict appellant’s intent to dispose of items that would facilitate the trailer’s identification and his involvement with its taking.        They also render dubious appellant’s contention that he was simply watching the trailer for his cousin for several days. Indeed, a rational jury could have reasonably deduced that one does not dismantle a fence to hide a trailer and remove identifying information from that trailer if the purported owner is going to pick it up in a day or two.

          In short, the evidence viewed in the light most favorable to the jury’s verdict is sufficient to allow a rational jury to find, beyond reasonable doubt, that appellant exercised control over the trailer without the owner’s consent and thereby committed theft. And, as appellant suggested, there may have been testimony that another had stolen the trailer, that another had removed the license plate and placed it in appellant’s house though no one else lived there, and that another may have removed the vehicle’s identification plate and left it next to where appellant happened to have stood and torn up his insurance card. Yet, the jurors were free to assess the credibility of those who were testifying, resolve evidentiary disputes, and reject the potential for mere coincidence. In other words, they were not required to buy his story. And, we do not find their rejection of it and their ultimate verdict so contrary to the overwhelming weight of the evidence as to render the verdict clearly wrong. Thus, the evidence was, and is, both legally and factually sufficient.

          Motion for Continuance

          Appellant also claims the trial court erred in denying his request, made on the day of trial, for a continuance so that he could obtain counsel of his own choice. We find only an oral motion for continuance in the record. An oral or unsworn motion generally preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006) (stating that a criminal action may be continued on the written motion of the defendant upon sufficient cause shown). Thus, we overrule the issue.

          The judgment of the trial court is affirmed.

                                                                           Brian Quinn

                                                                          Chief Justice