In The
Court of Appeals Ninth District of Texas at Beaumont ________________
NO. 09-13-00472-CR ________________
NORMAN LEE SHILLINGS JR., Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 258th District Court Polk County, Texas Trial Cause No. 22,366 __________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Norman Lee Shillings Jr. as a habitual offender
of seven counts of tampering with evidence, and the trial court assessed
punishment at twenty-five years of confinement for each count and ordered that the
sentences would run concurrently. In his sole appellate issue, Shillings challenges
the legal sufficiency of the evidence to support his conviction. We affirm the trial
court’s judgment of conviction on each count.
1 THE EVIDENCE
Officer Glen Goodwin testified that he was working as a highway patrolman
when he stopped a speeding vehicle driven by Shillings. Shillings told Goodwin
that he did not have a driver’s license, but he identified himself to Officer Goodwin
as “Wesley Pruitt Schillings, date of birth . . . November 28, 1973.” Goodwin
explained that when he ran the name “Wesley Pruitt Schillings,” he learned from
the sheriff’s office that said name and date of birth were “a valid name and date of
birth[,]” and the sheriff’s office provided a photograph of a person similar in
appearance to Shillings.
When Goodwin interviewed Shillings, Shillings told Goodwin that he had
been drinking, so Goodwin performed field sobriety tests and then arrested
Shillings for DWI. After Goodwin informed Shillings that the vehicle, which was
registered to another individual, would be towed, Shillings became verbally
abusive and threatened Goodwin, and Goodwin called for assistance. Trooper
Berman arrived to assist, and Trooper Berman held Shillings against the vehicle
while the officers called the sheriff’s office “for a unit with a cage.”
Eventually, Deputy Craig Taylor arrived in a unit that had a cage, and he
transported Shillings to jail. Goodwin explained that Shillings continued to resist
arrest until being placed in the unit with a cage, so Goodwin charged Shillings with
2 both driving while intoxicated and resisting arrest. Goodwin subsequently learned
from Sergeant Frank Shipley that Shillings’s name was actually “Norman
Shillings,” and Goodwin issued another arrest warrant against “Norman Shillings”
for tampering. Goodwin testified that a subject’s identity is a matter of evidence in
a case.
Sergeant Troy Lanning, who supervises book-ins at the jail, testified that
during the book-in process, an arrestee is fingerprinted electronically, and the
fingerprints are transmitted to Austin. According to Lanning, offenses that are class
B misdemeanors or above are reportable offenses, which are placed on the
arrestee’s criminal history. Lanning explained that the justice of the peace sets a
bond and issues a magistrate’s warning, which is signed by the justice of the peace,
the arrestee, and the jailer. Lanning explained that the fingerprints sent to Austin
“came back to a different individual, to a different SID number.” According to
Lanning, the fingerprints belonged to Norman Shillings rather than Wesley
Shillings. Lanning notified Goodwin that the wrong name was listed on the charge.
According to Lanning, the magistrate’s warning, notice of arraignment, and
bail bond are filed with the trial court. Lanning identified State’s exhibits one
through seven as magistrate’s warnings, bonds on the charges of driving while
intoxicated and resisting arrest, the notices of arraignment for driving while
3 intoxicated and resisting arrest, and a notification of the right to counsel, all of
which were signed by Shillings as “Wesley Shillings.”
Ricky Seward, a sergeant with the Polk County jail, identified Shillings as
the individual for whom he processed bail bonds on charges of driving while
intoxicated and resisting arrest. Seward testified that Shillings purported to be
Wesley Shillings when he signed the bail bonds, and he identified State’s exhibits
three and four as the bail bonds signed by Shillings as “Wesley Shillings.”
Anna Devona, a correctional officer at the Polk County sheriff’s office,
testified that when she booked Shillings into the jail, he used the name “Wesley
Shillings” on the notices of arraignment, and she identified State’s exhibit five and
six as the notices of arraignment Shillings signed. Devona later learned that
Shillings had provided a false name. Devona identified Shillings as the person who
signed the notices of arraignment as “Wesley Pruitt Shillings.”
Mickey Stafford, chief court clerk for Polk County Precinct 1, identified the
magistrate’s warning on the DWI charge, the charge of resisting arrest, and the
application for a court-appointed attorney as documents Shillings signed as
“Wesley Pruitt Shillings,” and those documents were admitted into evidence as
State’s exhibits one, two, and seven. Lieutenant Mark Jones of the Polk County
4 Sheriff’s Office testified that the fingerprints on the bail bonds and the jail book-in
card matched Shillings’s fingerprints.
LEGAL SUFFICIENCY
In his sole appellate issue, Shillings contends the evidence was legally
insufficient to support his conviction. When evaluating the legal sufficiency of the
evidence, we review all the evidence in the light most favorable to the verdict to
determine whether any rational factfinder could have found the essential elements
of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902
n.19 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
The jury is the ultimate authority on the credibility of witnesses and the
weight to be given their testimony. Brooks, 323 S.W.3d at 894-95; Penagraph v.
State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the
jury’s responsibility to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Hooper, 214 S.W.3d at 13. We may not substitute our judgment for that of the fact
finder concerning the weight and credibility of the evidence. King v. State, 29
S.W.3d 556, 562 (Tex. Crim. App. 2000).
5 The caption of the indictment listed section 37.09(d)(1) of the Texas Penal
Code as the charging statute, and that subsection provides that a person commits
the offense of tampering with or fabricating physical evidence if the person
“knowing that an offense has been committed, alters, destroys, or conceals any
record, document, or thing with intent to impair its verity, legibility, or availability
as evidence in any subsequent investigation of or official proceeding related to the
offense[.]” Tex. Penal Code Ann. § 37.09(d)(1) (West Supp.
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In The
Court of Appeals Ninth District of Texas at Beaumont ________________
NO. 09-13-00472-CR ________________
NORMAN LEE SHILLINGS JR., Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 258th District Court Polk County, Texas Trial Cause No. 22,366 __________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Norman Lee Shillings Jr. as a habitual offender
of seven counts of tampering with evidence, and the trial court assessed
punishment at twenty-five years of confinement for each count and ordered that the
sentences would run concurrently. In his sole appellate issue, Shillings challenges
the legal sufficiency of the evidence to support his conviction. We affirm the trial
court’s judgment of conviction on each count.
1 THE EVIDENCE
Officer Glen Goodwin testified that he was working as a highway patrolman
when he stopped a speeding vehicle driven by Shillings. Shillings told Goodwin
that he did not have a driver’s license, but he identified himself to Officer Goodwin
as “Wesley Pruitt Schillings, date of birth . . . November 28, 1973.” Goodwin
explained that when he ran the name “Wesley Pruitt Schillings,” he learned from
the sheriff’s office that said name and date of birth were “a valid name and date of
birth[,]” and the sheriff’s office provided a photograph of a person similar in
appearance to Shillings.
When Goodwin interviewed Shillings, Shillings told Goodwin that he had
been drinking, so Goodwin performed field sobriety tests and then arrested
Shillings for DWI. After Goodwin informed Shillings that the vehicle, which was
registered to another individual, would be towed, Shillings became verbally
abusive and threatened Goodwin, and Goodwin called for assistance. Trooper
Berman arrived to assist, and Trooper Berman held Shillings against the vehicle
while the officers called the sheriff’s office “for a unit with a cage.”
Eventually, Deputy Craig Taylor arrived in a unit that had a cage, and he
transported Shillings to jail. Goodwin explained that Shillings continued to resist
arrest until being placed in the unit with a cage, so Goodwin charged Shillings with
2 both driving while intoxicated and resisting arrest. Goodwin subsequently learned
from Sergeant Frank Shipley that Shillings’s name was actually “Norman
Shillings,” and Goodwin issued another arrest warrant against “Norman Shillings”
for tampering. Goodwin testified that a subject’s identity is a matter of evidence in
a case.
Sergeant Troy Lanning, who supervises book-ins at the jail, testified that
during the book-in process, an arrestee is fingerprinted electronically, and the
fingerprints are transmitted to Austin. According to Lanning, offenses that are class
B misdemeanors or above are reportable offenses, which are placed on the
arrestee’s criminal history. Lanning explained that the justice of the peace sets a
bond and issues a magistrate’s warning, which is signed by the justice of the peace,
the arrestee, and the jailer. Lanning explained that the fingerprints sent to Austin
“came back to a different individual, to a different SID number.” According to
Lanning, the fingerprints belonged to Norman Shillings rather than Wesley
Shillings. Lanning notified Goodwin that the wrong name was listed on the charge.
According to Lanning, the magistrate’s warning, notice of arraignment, and
bail bond are filed with the trial court. Lanning identified State’s exhibits one
through seven as magistrate’s warnings, bonds on the charges of driving while
intoxicated and resisting arrest, the notices of arraignment for driving while
3 intoxicated and resisting arrest, and a notification of the right to counsel, all of
which were signed by Shillings as “Wesley Shillings.”
Ricky Seward, a sergeant with the Polk County jail, identified Shillings as
the individual for whom he processed bail bonds on charges of driving while
intoxicated and resisting arrest. Seward testified that Shillings purported to be
Wesley Shillings when he signed the bail bonds, and he identified State’s exhibits
three and four as the bail bonds signed by Shillings as “Wesley Shillings.”
Anna Devona, a correctional officer at the Polk County sheriff’s office,
testified that when she booked Shillings into the jail, he used the name “Wesley
Shillings” on the notices of arraignment, and she identified State’s exhibit five and
six as the notices of arraignment Shillings signed. Devona later learned that
Shillings had provided a false name. Devona identified Shillings as the person who
signed the notices of arraignment as “Wesley Pruitt Shillings.”
Mickey Stafford, chief court clerk for Polk County Precinct 1, identified the
magistrate’s warning on the DWI charge, the charge of resisting arrest, and the
application for a court-appointed attorney as documents Shillings signed as
“Wesley Pruitt Shillings,” and those documents were admitted into evidence as
State’s exhibits one, two, and seven. Lieutenant Mark Jones of the Polk County
4 Sheriff’s Office testified that the fingerprints on the bail bonds and the jail book-in
card matched Shillings’s fingerprints.
LEGAL SUFFICIENCY
In his sole appellate issue, Shillings contends the evidence was legally
insufficient to support his conviction. When evaluating the legal sufficiency of the
evidence, we review all the evidence in the light most favorable to the verdict to
determine whether any rational factfinder could have found the essential elements
of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902
n.19 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
The jury is the ultimate authority on the credibility of witnesses and the
weight to be given their testimony. Brooks, 323 S.W.3d at 894-95; Penagraph v.
State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the
jury’s responsibility to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Hooper, 214 S.W.3d at 13. We may not substitute our judgment for that of the fact
finder concerning the weight and credibility of the evidence. King v. State, 29
S.W.3d 556, 562 (Tex. Crim. App. 2000).
5 The caption of the indictment listed section 37.09(d)(1) of the Texas Penal
Code as the charging statute, and that subsection provides that a person commits
the offense of tampering with or fabricating physical evidence if the person
“knowing that an offense has been committed, alters, destroys, or conceals any
record, document, or thing with intent to impair its verity, legibility, or availability
as evidence in any subsequent investigation of or official proceeding related to the
offense[.]” Tex. Penal Code Ann. § 37.09(d)(1) (West Supp. 2013) (emphasis
added). 1 However, the body of the seven-count indictment alleged that Shillings
“made, presented[,] or used” (1) a magistrate’s warning on the DWI charge, (2) a
magistrate’s warning on the resisting arrest charge, (3) a bail bond on the DWI
charge, (4) a bail bond on the resisting arrest charge, (5) a notice of arraignment on
the DWI charge, (6) a notice of arraignment on the resisting arrest charge, and (7) a
notification of the right to counsel “with knowledge of [the documents’] falsity and
with the intent to affect the course or outcome of the investigation or official
proceeding” by signing a false name to the documents. 2 This language indicates
that Shillings was charged with an offense under section 37.09(a)(2). See id. §
1 Because the amendment to section 37.09 is not material to the outcome of this appeal, we cite the current version of the statute. 2 The indictment also included four enhancement paragraphs.
6 37.09(a)(2). Section 37.09(a)(2) provides that “[a] person commits an offense if,
knowing that an investigation or official proceeding is pending or in progress, he . . .
makes, presents, or uses any record, document, or thing with knowledge of its
falsity and with intent to affect the course or outcome of the investigation or
official proceeding.” Id. The caption of an indictment is not part of the charging
instrument, and when the caption lists a different offense from the one alleged in
the body of the indictment, the body of the indictment controls. See Stansbury v.
State, 128 Tex. Crim. 570, 574, 82 S.W.2d 962, 964 (1935) (op. on reh’g); Adams
v. State, 222 S.W.3d 37, 52-53 (Tex. App.—Austin 2005, pet. ref’d); Thibodeaux
v. State, 628 S.W.2d 485, 487 (Tex. App.—Texarkana 1982, no pet.); 42 George E.
Dix and John M. Schmolesky, Texas Practice: Criminal Practice and Procedure §
25.24 (3d ed. 2011) (“If . . . the caption identifies the charged offense as one
different than what is actually charged in the charging instrument proper, this is of
no significance. It does not constitute a defect in the charging instrument, nor does
it give rise to some sort of fatal variance when the proof at trial shows the offense
charged in the instrument proper rather than the offense specified by name in the
caption.”).
Shillings argues that for his actions to fall within the purview of section
37.09 of the Penal Code, the evidence must show that he had already committed a
7 separate criminal offense because otherwise, he could not have known that an
investigation was pending. Shillings also contends that he did not “generate” the
documents that identified him as “Wesley Pruitt Shillings.” As support for his
argument, Shillings cites Brosky v. State, 915 S.W.2d 120 (Tex. App.—Fort Worth
1996, pet. ref’d). In Brosky, the appellant, who was convicted of engaging in
organized criminal activity pursuant to section 71.02 of the Penal Code, contended
that the trial court erred by refusing to instruct the jury on the lesser-included
offense of tampering with evidence under section 37.09. Brosky, 915 S.W.2d at
123, 142. The Brosky court concluded that tampering with evidence is not a lesser-
included offense of engaging in organized criminal activity. Id. at 144. The Brosky
court noted that while section 71.02 requires the actor to perform an overt act in
pursuance of an agreement to commit a separate criminal offense, and the
additional offense need only be planned, “for a person’s actions to fall within the
confines of section 37.09, a separate criminal offense must already have been
committed; otherwise, the actor could not kn[ow] that an investigation . . . is
pending.” Id. at 143-144 (emphasis added).
We conclude that Shillings’s reliance upon Brosky is misplaced. The Brosky
court’s holding does not stand for the proposition that to convict an actor under
section 37.09, that an offense in addition to tampering with evidence must have
8 been committed. See id. In addition, we conclude that nothing in section 37.09
requires that the actor have “generated” the record, document, or thing. See Tex.
Penal Code Ann. § 37.09.
The evidence established that Shillings signed a false name on two bail
bonds, two magistrate’s warnings, two notices of arraignment, and a notification of
the right to counsel, all of which were presented to him upon his arrest and
booking into the jail for the offenses of driving while intoxicated and resisting
arrest. The notices of arraignment and magistrate’s warnings informed Shillings
that he was accused of driving while intoxicated and resisting arrest, so Shillings
knew when he signed a false name to the documents that an investigation was
pending. We conclude the evidence was sufficient to establish that by signing a
false name on the documents, Shillings made, presented, or used the documents
with knowledge of their falsity and with intent to affect the outcome of the
investigation or official proceeding against him, as charged in the indictment. See
id. § 37.09(a)(2). Accordingly, we overrule Shillings’s sole issue and affirm the
trial court’s judgment of conviction as to each count. 3
3 We note that the trial court’s judgment of conviction sets forth section 37.09(d)(1) of the Texas Penal Code rather than section 37.09(a)(2) as the charging statute. 9 AFFIRMED.
________________________________ STEVE McKEITHEN Chief Justice
Submitted on April 14, 2014 Opinion Delivered May 7, 2014 Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.