Gretchon Windell Powell v. State

• Court: Court of Appeals of Texas
• Decided: June 8, 2011
• Docket: 10-09-00365-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00364-CR No. 10-09-00365-CR

GRETCHON WINDELL POWELL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 40th District Court Ellis County, Texas Trial Court Nos. 33731CR and 33732CR

MEMORANDUM OPINION

A jury found Gretchon Windell Powell guilty of aggravated assault of a public

servant and burglary of a building with intent to commit theft and assessed his

punishment, enhanced by prior felony convictions, at seventy years’ and ten years’

imprisonment respectively. In two issues, Powell contends that the evidence is legally

and factually insufficient to support his convictions.1 We will affirm.

1 Powell, who is represented by counsel, filed a pro se reply brief. A criminal appellant has no right to hybrid representation. Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001). Generally, The court of criminal appeals recently held that there is “no meaningful

distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis

factual-sufficiency standard” and that “the Jackson v. Virginia legal-sufficiency standard

is the only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt. All other cases to the contrary, including

Clewis, are overruled.” Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010).

Accordingly, we will apply the same standard of review to each of Powell’s sufficiency

complaints.

When reviewing a challenge to the sufficiency of the evidence to establish the

elements of a penal offense, we must determine whether, after viewing all the evidence

in the light most favorable to the verdict, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443

U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if

the finding of the trier of fact is rational by viewing all of the evidence admitted at trial

in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.

Crim. App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor

of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

when an appellant has counsel and counsel has filed a brief, the appellant has no right to file a pro se brief. This prohibition on hybrid representation is not absolute. See, e. g., Warren v. State, 98 S.W.3d 739, 741 (Tex. App.—Waco 2003, pet. ref’d). We may consider a pro se brief if the interests of justice require us to do so. Powell’s pro se brief replies to the State’s brief and discusses the sufficiency complaints. We will thus consider it in deciding this appeal.

Powell v. State Page 2 The following evidence was presented at trial: Lester Taylor testified that he is

the Chief of Police in Maypearl, a town of about 1,000 people, and the police

department is very small. On Monday, September 15, 2008, Taylor came on duty at

about 3:00 a.m., relieving Lauri Boudreau, the officer who had been on duty. Taylor

patrolled the city until about 4:30 or 4:45 a.m. and then went to his office in the police

department, which is located in city hall. At about 5:30 a.m., he heard someone banging

on the front door of the building, which was closed and locked with a dead bolt. He got

up and went to the door of his office. Just after Taylor stepped through his office door,

he heard “[o]ne hard thud” and “the front door flung open and a black male entered.”

Taylor drew his service weapon, a nine-millimeter pistol that he carried cocked with the

safety on, and pointed it at the man, whom he later identified as Powell. He asked

Powell why he had kicked in the door, and he responded, “Where am I?” Taylor told

Powell that he was in the police department. Taylor was wearing a shirt that showed

his badge along with his name and identification as the Chief of Police. Powell then

said that he needed help because he had been in an accident and there might be injuries.

Taylor asked Powell to put his hands on the wall and “looked at him just to see if

he had anything on him,” but Taylor did not see anything. Taylor then asked Powell

for identification. Powell took a wallet out of his pocket, took the driver’s license out,

put the driver’s license on top of the wallet, and handed Taylor both the driver’s license

and the wallet. Taylor looked at the driver’s license and verified that it belonged to

Powell.

Powell v. State Page 3 Once Taylor had identified Powell, he told him they would have to walk down

the hall to the back door. They did so and then went out into the bay of the city

maintenance barn where Taylor’s marked squad car was parked. Taylor told Powell to

get into the car, but Powell instead walked to the center part of the bay. Taylor walked

to the bay door to raise it with a chain. Taylor had to holster his weapon to raise the

door, but he was watching Powell. However, the chain slipped as Taylor was raising

the door, and he took his eye off Powell. Taylor was then hit from the rear and pushed

into the wall. Powell got Taylor’s pistol and told Taylor to pull the door down or he

would shoot Taylor. Taylor pulled the door down.

Taylor began pleading with Powell not to shoot him, but Powell pointed the gun

at Taylor and pulled the trigger. When the gun did not fire, Taylor ran toward the back

of another squad car, hoping that the door might be unlocked and he would be able to

get a shotgun out of it. When he got to the rear of the squad car, Powell yelled at him to

stop or he would shoot. Taylor hesitated and looked at Powell, who was still pointing

the gun at Taylor and pulled the trigger again. Taylor then ran around the squad car,

and Powell pulled the trigger once more. The third time, Powell was using both hands

to try to fire the gun. Taylor said that he was in fear of imminent bodily injury and that

Powell clearly intended to kill him each time he pulled the trigger.

When the gun did not fire on the third try, Powell started fumbling with the gun

and the magazine fell out. While Powell was trying to put the magazine back in the

gun, Taylor ran to the back door and was able to close and bolt it. He then locked

himself in his office with a loaded shotgun and called 9-1-1. Deputies from the Ellis

Powell v. State Page 4 County Sheriff’s Department arrived shortly thereafter, and a SWAT team searched the

building, but Powell was not found. Taylor never recovered his pistol, and Officer

Boudreau testified that, after that day, she never again saw him with the pistol.

Taylor identified Powell at trial as the person who broke in and tried to shoot

him. Taylor stated that the building was not open to the public at 5:30 a.m. and that

Powell did not have consent to enter the building that morning. The door that was

kicked in had a wooden box attached to it where people would place payments on the

weekends when city hall was not open. Taylor said that people often get paid on

Fridays and pay their utilities over the weekend.

Robert Allwardt and Mike Aman, investigators with the Ellis County District

Attorney’s office, testified that they responded to the scene. Allwardt stated that,

among other things, he talked to Taylor and took fingerprints from the areas that

Powell might have touched at the scene, but none of the fingerprints collected were

identified as belonging to Powell. Both Allwardt and Aman also testified that they did

not know why the Ellis County Sheriff’s Department did not conduct the investigation.

The next day, Allwardt went to Powell’s last known address. There, he met the

manager of the residence and confirmed that Powell had, in fact, resided there.

Allwardt then discovered some papers that were identified to be Powell’s next to a

computer in the common area. The Maypearl City Hall address was written in the

lower right-hand corner of one of the papers. The manager of the residence

acknowledged that the paper was at Powell’s residence at a computer that he had

Powell v. State Page 5 access to, but he could not say with certainty that the paper with the address was

Powell’s because four men had access to the notepad where the address was written.

Texas Ranger Danny Briley testified that after observing the scene, discussing the

events with the other investigators, and talking with Taylor, he obtained an arrest

warrant for Powell. Powell was arrested, and Briley then interviewed him. Powell

gave a written statement in which he admitted kicking in the door, but, contrary to

Taylor’s testimony, he stated that he ran away when Taylor tried to open the bay door.

Powell’s written statement does not discuss Taylor’s accusation that Powell took

Taylor’s gun and tried to shoot Taylor. On cross-examination, Briley additionally stated

that he remembered another discussion with Powell:

Gretchon told me that he needed some weed. He needed a hookup, and that he would be paid some money, have X amount of dollars if he would go kick in the door to the Maypearl Police Department, but that once he busted the door down, his part was done.

Powell told Briley there were two accomplices, Little C and Little Cousin.

The defense presented the testimony of two investigators from the Ellis County

Sheriff’s Office. Jason Westmoreland testified that he was initially assigned to begin an

investigation into what happened at the Maypearl Police Department. However, later

that day, his lieutenant advised him “per the sheriff” that he was not to conduct any

further investigation. He heard from deputies talking at the scene that the sheriff did

not want to be involved because he thought there was something strange about the way

the situation had “gone down” and he wanted an outside agency to investigate it. On

cross-examination, Westmoreland acknowledged that he had not talked to the sheriff

Powell v. State Page 6 about it and agreed that “a bunch of deputies [were] shooting their mouths off” and

there was not any truth to any of it. Phillip Slaughter, the other investigator, testified

that he initially responded to the scene at the Maypearl Police Department but was later

ordered to leave the scene by the sheriff.

In his first issue, Powell contends that the evidence is insufficient to support his

conviction for burglary of a building. A person commits the offense of burglary of a

building if, without the effective consent of the owner, the person enters a building not

then open to the public, with intent to commit theft. TEX. PENAL CODE ANN. § 30.02(a)(1)

(Vernon 2003).

Powell first argues that the evidence is insufficient because, although he may

have broken down the door to the building and committed criminal mischief, he did not

enter the building. Instead, Powell claims that Taylor ordered him into the building.

However, Taylor testified that “the front door flung open and a black male entered.”

The jury obviously believed Taylor’s testimony over Powell’s written statement, and we

are required to defer to the jury’s credibility and weight determinations because the

jury is the sole judge of the witnesses’ credibility and the weight to be given their

testimony. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793.

Powell next argues that the evidence is insufficient to establish that he intended

to commit theft because it is “mere conjecture by the State that Appellant intended to

rob the cash from the night deposit box which [w]as mounted on the back of the door.”

However, in a prosecution for burglary, the specific intent to commit theft may be

inferred from the circumstances. Goodeaux v. State, 269 S.W.3d 730, 734 (Tex. App.—

Powell v. State Page 7 Beaumont 2008, no pet.) (citing Simmons v. State, 590 S.W.2d 137, 138 (Tex. Crim. App.

1979)). Here, in addition to Taylor’s testimony that people often pay their utilities over

the weekend, that the offense occurred early Monday morning, and that the lockbox

where people would place their payments was on the back of the door that Powell

kicked in, Powell admitted in his written statement that, before kicking in the front

door, he had looked in the windows on the back side of the building and did not see

anyone in the building. Taylor also testified that entry was made without consent at

about 5:30 a.m. See Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982) (“[A]n

entry made without consent in the nighttime is presumed to have been made with

intent to commit theft.”). The jury could have reasonably inferred Powell’s intent to

commit theft.

Viewing all the evidence in the light most favorable to the verdict, we conclude

that the evidence is sufficient to support Powell’s conviction for burglary of a building

with intent to commit theft.2 We overrule Powell’s first issue.

In his second issue, Powell contends that the evidence is insufficient to support

his conviction for aggravated assault on a public servant. A person commits the offense

of aggravated assault of a public servant if he intentionally or knowingly threatens a

person that the actor knows to be a public servant with imminent bodily injury while

2 Flores v. State, 902 S.W.2d 618 (Tex. App.—Austin 1995, pet. ref’d), relied on by Powell, is inapplicable here. In Flores, the appellant was convicted of burglary of a building under section 30.02(a)(3) of the penal code, and the appellate court held that the evidence was insufficient to prove that he “attempted to commit theft.” In this case, however, Powell was convicted of burglary of a building with intent to commit theft under section 30.02(a)(1) of the penal code. Thus, the Flores court did not address the issue before us. The Flores court even stated: “A much closer question would be presented in the present cause had the prosecution been for burglary with intent to commit theft, section 30.02(a)(1); however appellant was not charged under that part of the statute.” Id. at 620.

Powell v. State Page 8 the public servant is lawfully discharging an official duty and uses or exhibits a deadly

weapon during the commission of the assault. See TEX. PENAL CODE ANN. §§ 22.01(a)(2),

22.02(a)(2), (b)(2)(B) (Vernon Supp. 2010).

Powell argues that the evidence is insufficient because Taylor’s version of events

is “incredulous” and points instead to the testimony presented by the defense

witnesses, which he claims establishes that the sheriff of Ellis County thought that

something was not as it seemed. In his pro se reply brief, Powell argues that the jury

was presented with contradictory and false evidence and that Taylor’s version of the

events is “unreasonable and irrational.” However, by finding Powell guilty, the jury

obviously believed Taylor’s testimony. The jury is the exclusive judge of the facts, the

credibility of the witnesses, and the weight to be given to the witnesses’ testimony.

Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)

(citing Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981)). A jury may

believe all, some, or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986). As the reviewing court, we “should not substantially intrude

upon the jury’s role as the sole judge of the weight and credibility of witness

testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); see also Sharp,

707 S.W.2d at 614. We must defer to the jury’s determination concerning what weight

to give any contradictory testimonial evidence. See, e.g., In re A.B., 133 S.W.3d 869, 873-

74 (Tex. App.—Dallas 2004, no pet.); Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex.

App.—San Antonio 1997, no pet.); Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—

Houston [14th Dist.] 1989, pet. ref’d).

Powell v. State Page 9 Viewing all the evidence in the light most favorable to the verdict, we conclude

that the evidence is sufficient to support Powell’s conviction for aggravated assault of a

public servant. We overrule Powell’s second issue.

Having overruled Powell’s issues, we affirm the trial court’s judgments.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Judge Anderson3 (Chief Justice Gray concurs with a note)* Affirmed Opinion delivered and filed June 8, 2011 Do not publish [CRPM]

*(Chief Justice Gray concurs in the judgment affirming Powell’s convictions. A separate opinion will not issue. He notes, however, that he finds no reason, much less an “interest of justice” that would require this court to consider the pro se reply brief of Powell when Powell is ably represented by appointed counsel. He notes that by referencing and considering the pro se brief we encourage the practice of unauthorized hybrid representation.)

3Ken Anderson, Judge of the 277th District Court of Williamson County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Government Code. See TEX. GOV’T CODE ANN. § 74.003(h) (Vernon 2005).

Powell v. State Page 10