Michael Donnell Glover v. State

• Court: Court of Appeals of Texas
• Decided: November 20, 2007
• Docket: 06-07-00060-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00060-CR ______________________________

MICHAEL DONNELL GLOVER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 123rd Judicial District Court Shelby County, Texas Trial Court No. 06CR-16,767A

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Michael Donnell Glover has appealed from his jury conviction of the offense of escape. See Tex. Penal Code Ann. § 38.06 (Vernon Supp. 2007). The jury found the enhancement paragraphs "true" and assessed Glover's punishment at life imprisonment and a $10,000.00 fine. Glover was represented by appointed counsel at trial and by different appointed counsel on appeal.

Appellate counsel summarizes the trial in his brief and states that he has studied the record and finds no error preserved for appeal that could be successfully argued. The brief contains a professional evaluation of the record and advances one arguable ground for review: Was Glover's requested jury charge improperly denied? This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

Counsel mailed a copy of the brief to Glover August 10, 2007, informing Glover of his right to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed a motion with this Court seeking to withdraw as counsel in this appeal.

Glover has now filed a pro se response in which he raises three issues: (1) his requested jury charge was improperly denied; (2) the evidence is legally insufficient to support his conviction; and (3) the evidence is factually insufficient to support his conviction.

Evidence

Officer Donny Dickerson, Jr., of the Center Police Department, testified he arrested Glover June 15, 2006, for burglary of a building and placed him in the Center Police Department jail. Charlene Jackson, a dispatcher at the Center Police Department, testified that, on June 16, 2006, she was performing her job duties, which included watching the monitors of the police and jail facilities. She testified that, on the monitors, she saw someone walking in the book-in area. She knew that all the officers were on call and that no one should have been in that particular area of the facility. She further testified that the only way to get into that area was with a key or through the ceiling. She immediately called for an officer to come to the police department. Jackson further testified that Glover would have also needed a key to get from the book-in area to another section of the facility.

Jeremy Bittick testified he is a lieutenant with the Center Police Department and had been working in law enforcement for approximately nine years. He testified that, on June 16, 2006, he was called while out on patrol by the dispatcher to return to the department. When he arrived, he found that the keys to the cells and the key to one of the doors in the secured area were gone and that the door to the cell area was unlocked. He further stated he saw Glover walking toward him, with the keys in his hand. Glover handed Bittick the keys; Bittick took Glover back to his cell and locked him up. Bittick testified that there are different keys for the cells and for another door inside the secured area; however, to get outside the building, a dispatcher had to "buzz" the person out through an electronic lock. Bittick testified that, when he escorted Glover back to his cell, he saw drywall dust on the floor that looked as though it had been swept toward the toilet; there was also dust on the table and floor, along with small particles of the ceiling. There was a footprint in the dust on the table; above the table, the vent cover in the ceiling had been removed and the surrounding drywall was damaged. Further, a blanket had been rolled up and placed on the bunk so that, at a quick glance, it would look like someone was lying in the bed. Bittick testified on cross-examination that Glover could not have escaped from the secured area of the jail with the keys he had.

Issues Raised on Appeal

Glover raises as his first issue that the trial court erred in denying his request to charge the jury on the law of escape as defined under Section 38.06 of the Texas Penal Code. See Tex. Penal Code Ann. § 38.06. The jury charge submitted by the trial court states, in relevant part, as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 16th day of June, 2006, in Shelby County, Texas, the defendant, MICHAEL DONNELL GLOVER did intentionally or knowingly escape from his cell in the Center Police Department, where he was being legally confined and held under arrest for the felony offense, to-wit: Burglary of a Building, and the defendant was confined in a secure correctional facility, namely the Center Police Department, then you will find the defendant "Guilty" as charged in the indictment.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant "Not Guilty".

The jury charge requested by Glover reads, in pertinent part, as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 16th day of June, 2006, in Shelby County, Texas, the defendant, MICHAEL DONNELL GLOVER was under arrest for a felony offense, to-wit: Burglary of a Building, and in the custody of Center Police Department, and that the defendant did then and there intentionally or knowingly escape from the custody of the Center Police Department, then you will find the defendant "Guilty" as charged in the indictment.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant "Not Guilty".

The jury charge requested by Glover matches the language of the statute by using the phrase "escape from the custody of . . . ." See Tex. Penal Code Ann. § 38.06 (emphasis added). However, the jury charge submitted by the court tracks the language of the indictment and is consistent with cases interpreting the statute. See Scott v. State, 672 S.W.2d 465 (Tex. Crim. App. 1984); Crowder v. State, 812 S.W.2d 63, 68-69 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd).

Glover's apparent purpose of a requested charge restating the language was to make the argument that, although Glover did extricate himself from his cell, he remained in a secure area of the facility and was, therefore, still in the custody of the Center Police Department. However, Texas courts have held that, once a prisoner leaves his or her assigned area and enters a restricted area, the prisoner commits the offense of escape. Scott, 672 S.W.2d at 466; Crowder, 812 S.W.2d at 68-69. The application clause in the charge is appropriate. It allows a jury to convict based on the elements authorized by the statute and the facts stated in the indictment. Morter v. State, 551 S.W.2d 715, 718 (Tex. Crim. App. 1977). There is no error in the charge submitted to the jury.

Glover also contends in his pro se response that the evidence was legally and factually insufficient to support his conviction for escape.

In reviewing the legal sufficiency of the evidence, we view all of 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 crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

In a factual sufficiency review, we review all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

After reviewing the evidence as detailed above, we find the evidence legally and factually sufficient to support the conviction.

Conclusion

We have independently reviewed the record and agree with appellate counsel that there are no arguable points of error in this case. ⁽¹⁾

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: October 12, 2007

Date Decided: November 20, 2007

Do Not Publish

1. Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Glover in this case. No substitute counsel will be appointed. Should Glover wish to seek further review of this case by the Texas Court of Criminal Appeals, Glover must either retain an attorney to file a petition for discretionary review or Glover must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.