Foley, Darrell Wayne v. State

• Court: Court of Appeals of Texas
• Decided: March 25, 2004
• Docket: 14-02-00914-CR
• Status: Published

Opinion

Affirmed and Opinion filed March 25, 2004

Affirmed and Opinion filed March 25, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00914-CR

DARRELL WAYNE FOLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 272^nd District Court

Brazos County, Texas

Trial Court Cause No. 29,579F-272

O P I N I O N^[1]

Appellant, Darrell Wayne Foley, was charged with the offense of bail jumping and failure to appear.  Appellant entered a plea of Anot guilty,@ but after considering the evidence, a jury found him guilty.  The indictment also contained one enhancement paragraph alleging a previous conviction for delivery of a controlled substance, to which appellant entered a plea of Anot true.@ The jury subsequently found the enhancement paragraph to be true and assessed appellant=s punishment at twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a $10,000 fine.  On appeal, appellant claims the trial court erred in overruling his motion for directed verdict, alleging the evidence to be both legally and factually insufficient to support his conviction.  We affirm.

Appellant=s conviction for failing to appear arises out of a prior prosecution for tampering with physical evidence in cause number 29,218-272.  Appellant pleaded guilty in accordance with a plea agreement at a hearing held on June 12, 2002.  Under the plea agreement, appellant was to serve seven years in the Institutional Division of the Texas Department of Criminal Justice.^[2]

After finding appellant guilty, the case did not proceed to a formal sentencing.   The trial court granted appellant=s request to postpone sentencing for a week to allow appellant Ato take care of his family matters before he goes into custody.@  During the pendency of the prosecution, appellant was released from custody on a $10,000 personal bond.  Appellant was to return on June 18, 2002, for formal sentencing.   

In granting appellant=s request, the trial court warned appellant of the consequences of failing to appear.

The Court: . . . .  If you fail to show up, do you understand what is going to happen?

Defendant: Yes, ma=am.

The Court: What?

Defendant: I=ll be locked up and get more time.

The Court: You=ll be locked up and a new case will be filed for failing to appear.  Do you understand that?

The Court: I won=t hesitate to have your bond raised; the amount of it raised.  Do you understand that?

However, appellant did not return on June 18.  Appellant was arrested in Houston on June 26, 2002.   

At the conclusion of the State=s case on the failure to appear charge, appellant moved for an instructed verdict of not guilty contending there was no pending case because appellant had already been sentenced on June 12, 2002.  In finding appellant guilty at the June 12^th hearing, the trial court also stated, AI hereby assess your punishment at seven years confinement in the Institutional Division of the Texas Department of Criminal Justice.@  Appellant relies on this statement to argue that he had been sentenced.  Without a pending case, appellant contends the evidence is legally and factually insufficient to support the conviction.    

When reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and 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 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999).  In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence.  Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996).  There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.  Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003).  Determining which standard applies depends upon whether the complaining party had the burden of proof at trial.  Id.  If the complaining party did not have the burden of proof, then the Amanifestly unjust@ standard applies.  Id.  On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@ standard applies.  Id.  Under the Texas Court of Criminal Appeals= modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards.  Id.  Thus, when reviewing factual sufficiency challenges, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

A person commits bail jumping and failure to appear if he Aintentionally or knowingly fails to appear@ after being Alawfully released from custody, with or without bail, on condition that he subsequently appear.@  Tex. Pen. Code Ann. ' 38.10 (Vernon 2003).  Appellant attempts to argue in both his legal and factual insufficiency claims that he was not lawfully released; he alleges the trial court=s statement assessing punishment at seven years= confinement was the pronouncement of sentence, and the trial court was obliged to immediately commence his confinement in the penitentiary.

A sentence is the part of the judgment ordering Athat the punishment be carried into execution in the manner prescribed by law.@  Tex. Code Crim. Proc. Ann. Art. 42.02 (Vernon Supp. 2004).  The judgment is written, whereas the pronouncement of sentence is oral.  Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).   The pronouncement of sentence is the appealable event, while the judgment is merely a memorialization of what occurred at sentencing.  Ex parte Madding, 70 S.W.3d at 135; Jones v. State, 795 S.W.2d 199, 202 (Tex. Crim. App. 1990).   The pronouncement is the imposition of a sentence, and it controls in the event of a conflict with the written judgment. Ex parte Madding, 70 S.W.3d at 135.   The sentence sets out the terms of punishment.  State v. Ross, 953 S.W.2d 748, 750 (Tex. Crim. App. 1997).  For example, it includes such facts as the date the sentence begins, and in the event of multiple offenses, the sentence must indicate it is to be served concurrently or consecutively with other sentences.  Id.; see also Tex. Code Crim. Proc. Ann. Art. 42.01, ' 1(17), (18) (Vernon Supp. 2004) (listing as elements of the judgment the date the sentence is imposed, date sentence is to commence, and whether there is any credit for time served).  The trial court=s statement does not include these necessary facts.

Most importantly, appellant=s argument disregards what actually occurred.  Appellant specifically asked the court to reset the case for sentencing, and the trial court specifically ordered appellant to return the following week for sentencing.   Once a sentence is pronounced, orders necessarily issue to take appellant into custody.  See Tex. Code Crim. Proc. Ann. Art. 42.09, ' 1 (Vernon Supp. 2004); Ex parte Madding, 70 S.W.3d at 135 (explaining that once the sentence is pronounced, the defendant leaves the courtroom and begins serving the sentence imposed).  The bailiff present at the June 12^th hearing  testified that the trial court did not remand appellant to the custody of the county sheriff with orders to transfer to the Texas Department of Correctional Justice Institutional division.

The existence of a personal bond further supports the fact that appellant was lawfully released from custody.  See Vanderhorst v. State, 821 S.W.2d 180, 182 (Tex. App.CEastland 1991, pet. ref=d) (holding that proof that defendant was released on an instanter bond is sufficient to show that he Awas lawfully released from custody@).^[3]  Appellant executed a personal bond in January 2002 for the tampering with evidence charge.  A personal bond in a pending case is valid until revoked. See Tex. Code Crim. Proc. Ann. Art. 17.09 (Vernon Supp. 2004) (stating that once a defendant gives bail, the bail is valid for all proceedings related to the charge); Tex. Code Crim. Proc. Ann. Art. 17.031(a) (Vernon Supp. 2004) (providing that a Apersonal bond may not be revoked by the judge of the court . . . except for good cause@); Ex parte Williams, 619 S.W.2d 180, 182 (Tex. Crim. App. 1981).  We find nothing in the record to indicate that the bond had been revoked.  Additionally, the trial court specifically mentioned the bond when it admonished appellant about the consequences of failing to return for sentencing.  

Accordingly, although the trial court orally assessed appellant=s punishment, it is apparent that neither the trial judge nor appellant=s counsel believed appellant had been formally sentenced.  Viewing the evidence in the light most favorable to the prosecution, we believe a rational jury was entitled to conclude appellant failed to appear after being lawfully released from custody.  Accordingly, we find the evidence legally sufficient to support the jury=s verdict, and appellant=s issue is overruled.

            For the same reasons articulated above, appellant also contends the evidence is factually insufficient to support the jury=s verdict. However, the jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence.  Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Therefore, the jury may believe or disbelieve all or part of any witness=s testimony.  Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (en banc).  Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury.  Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). 

We do not find the proof of guilt is so obviously weak as to undermine our confidence in the jury=s verdict or that the proof of guilt is greatly outweighed by contrary proof. Apparently, the jury believed the testimony at trial establishing that appellant failed to appear after being lawfully released.   Accordingly, the second point of error is overruled.

The judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Opinion filed March 25, 2004.

Panel consists of Justices Yates, Hudson, and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Effective September 1, 2003, Brazos County is no longer a part of the district over which the First and Fourteenth Courts of Appeals have jurisdiction.  See Act of May 1, 2003, 78th Leg., R.S., ch. 44, 2003 Tex. Sess. Laws 81.  The Act applies to cases in which the transcripts were not filed before the effective date of the Act, September 1, 2003.  Because the record in this case was filed before the effective date of the Act, we have jurisdiction over this case. 

^[2]  The trial court granted the State=s motion to cumulate the two sentences.  Accordingly, appellant must complete the twenty-year sentence before serving the seven-year sentence for tampering with evidence. 

^[3]  The relevant portion of appellant=s bond states:

Now if said principal upon notice by the proper authority shall well and truly make his personal appearance before the District court of BRAZOS County, Texas. . . . [A]nd further shall well and truly make his personal appearance before any other court to which the same may be transferred and for any and all subsequent proceedings that may be had relative to the said court, until discharged by due course of law, then and there to answer said accusation against him this obligation shall become void; otherwise to remain in full force and effect.