James M. Hanners v. Amy Hanners

• Court: Court of Appeals of Texas
• Decided: January 29, 2003
• Docket: 10-02-00304-CV
• Status: Published

Opinion

James M. Hanners v. Amy Hanners

IN THE

TENTH COURT OF APPEALS

No. 10-02-304-CV

     JAMES M. HANNERS,

                                                                              Appellant

     v.

     AMY HANNERS,

                                                                              Appellee

From the 378th District Court

Ellis County, Texas

Trial Court # 52-949-D, 44-211-D and 54-862-D

MEMORANDUM OPINION

      James M. Hanners appeals an unspecified order of the trial court signed on September 25, 2002. The district clerk has advised the Court that Hanners has not paid or made arrangements to pay the fee for preparation of the clerk’s record.

      Rule of Appellate Procedure 37.3(b) provides that if an appellant fails to pay or make arrangements to pay the clerk’s fee for preparation of the record, the Court may:

dismiss the appeal for want of prosecution, unless the appellant was entitled to proceed without payments of costs. The court must give the appellant a reasonable opportunity to cure before dismissal.

Tex. R. App. P. 37.3(b).

      More than thirty days have passed since the clerk’s record was due. By letter dated December 23, 2002, we notified Hanners of this defect and warned him that his appeal would be dismissed for want of prosecution if he did not make the necessary arrangements for the filing of the clerk’s record. Id. 37.3(b), 42.3, 44.3. Hanners has not responded to our letter. Therefore, this appeal is dismissed for want of prosecution. Id. 37.3(b).

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed for want of prosecution

Opinion delivered and filed January 29, 2003

[CV06]

truck.

      While discussing their need for money to purchase more crack, Cummings suggested to Davis that they steal Mullendore's money. Because Mullendore was unconscious, Cummings reasoned, he would not know what occurred. Davis told Cummings that Mullendore would have to be killed if they were to rob him.

      The evidence at trial was disputed as to Cummings' response to Davis' declaration of intent to commit murder. Her written statement to Texas Ranger George Turner indicates that she told Davis "I could deal with it." At trial, however, Cummings contended that her written statement contained a typographical error and that she actually told Davis that she "couldn't deal" with killing Mullendore. In Davis' videotaped confession, he said that Cummings had responded that "she had no problem with [killing Mullendore]."

      Carrying out their plan to rob Mullendore, Davis drove the truck to Napville. There, Davis got into the back of the truck and beat Mullendore with a tire iron. According to Davis, Cummings asked if he needed her to help him at some point during the assault on Mullendore. Cummings climbed into the back of the truck and removed $34 from Mullendore's pants pocket. She testified at trial, however, that Davis ordered her to assist him by removing the money. In her statement to Ranger Turner, Cummings claimed that Davis drove to a bridge on a deserted stretch of road in north Johnson County to dispose of Mullendore. Davis claimed that Cummings volunteered to drive, stating that she knew of a bridge where they could "dump [Mullendore] off."

      When they arrived at the bridge, Davis again got into the back of the truck and stabbed Mullendore in the chest several times. Cummings told Ranger Turner that, when she heard dogs barking, she got out of the truck and warned Davis that they "needed to hurry because the dogs were barking." During her testimony at trial, she disavowed this portion of her statement. Davis pushed Mullendore out of the truck and over the bridge, and Cummings drove the truck away. Cummings and Davis drove directly to a crack house in Napville where they purchased three rocks of crack cocaine using $30 of the stolen money.

      Mullendore's body was discovered at approximately 2:30 a.m. the next morning. His right front pocket was turned inside out, his skull was fractured, and he had been stabbed three times in the chest. According to the assistant medical examiner who preformed the autopsy, the cause of death was massive hemorrhaging caused by the stab wounds.

      When reviewing the sufficiency of the evidence, we are required to examine the evidence in the light most favorable to the verdict. See Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990). The test is whether any rational trier of fact could have found that the state proved the elements of the crime beyond a reasonable doubt. Id.; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Moreover, the sufficiency of the evidence must be measured against the charge. Nickerson v. State, 782 S.W.2d 887, 891 (Tex. Crim. App. 1990). The charge authorized Cummings' convictions only as a party to the offenses. Thus, the question is whether any rational trier of fact could have found that she acted with intent to promote or assist in the commission of the two offenses. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 1974).

      The jury had the duty to reconcile the conflict in Cummings' trial testimony, her written confession, and Davis' confession. The jury could have rationally found that Cummings suggested that the robbery be committed; that she knew Davis intended to murder Mullendore; that she approved of the murder; that she participated in the robbery by removing the money from Mullendore's pocket concurrent with his beating by Davis; that she suggested a place to dispose of the victim; that she drove the truck to the location where the murder occurred; and that she encouraged Davis to hurry to avoid detection. These facts are sufficient for the jury to rationally conclude that Cummings acted with the intent to promote or assist in the commission of both offenses and to find her guilty of murder and aggravated robbery as a party. See Cordova v. State, 698 S.W.2d 107 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986). Accordingly, we overrule the sole point of error and affirm the judgment.

                                                                                     BOB L. THOMAS

                                                                                     Chief Justice

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Affirmed

Opinion delivered and filed October 13, 1993

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