Steve P. Patterson and Kim Patterson v. Texas Department of Protective Services

• Court: Court of Appeals of Texas
• Decided: February 28, 2002
• Docket: 07-02-00080-CV
• Status: Published

Opinion

PATTERSON V. TDPS NO. 07-02-0080-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

PANEL D

FEBRUARY 28, 2002

______________________________

STEVE P. PATTERSON and KIM PATTERSON,

Appellants

v.

TEXAS DEPARTMENT OF PROTECTIVE SERVICE,

Appellee

_________________________________

FROM THE 320^th DISTRICT COURT OF POTTER COUNTY;

NO. 62,466-D; HON. DON EMERSON, PRESIDING

_______________________________

DISMISSAL

Before BOYD, C.J., and QUINN and REAVIS, JJ.

Steve P. Patterson and Kim Patterson, appellants, filed their pro se notice of appeal on January 14, 2002. Accompanying the notice was neither a filing fee of $125.00 or proof of their status as paupers. Consequently, this Court issued a letter, dated February 11, 2002, informing the Pattersons of the defect and that the failure to cure same within ten days could result in the dismissal of the appeal. So too were they told of their need to file a docketing statement within the same time period. The letter then was sent to their last known address, which address was reflected on the docket of the Potter County District Clerk. The missive was returned, however, and on the envelope appeared the notation "FOE" (forwarding order expired) and a stamp directing that it be "return[ed] to sender not forwardable." No other address of the Pattersons have been provided to this court. Nor has it received the filing fee mentioned above, proof enabling the Patterson to continue their appeal as indigents (as authorized by the Texas Rules of Appellate Procedure), or the docketing statement.

Accordingly, we dismiss the appeal pursuant to Texas Rule of Appellate Procedure 42.3 (c) due to appellant's failure to pay the filing fee and provide a docketing statement as previously directed by this Court.

Per Curiam

Do not publish.

d appellant into the stairwell that he had taken. Upon rounding the corner of the stairwell, appellant charged Parker, knocking the bottle from his hand. A struggle ensued with both appellant and Parker attempting to obtain the bottle. Parker was successful in keeping appellant from the bottle but, during the struggle, appellant grabbed Parker by the shirt and threw him to the ground causing Parker a minor scrape to his elbow. Appellant then walked away. The managers continued to follow appellant until police arrived and arrested appellant.

By two issues, appellant contends that the evidence supporting his conviction was legally and factually insufficient. Specifically, appellant challenges the sufficiency of the evidence that he intentionally, knowingly, or recklessly caused another bodily injury in the course of committing theft, an essential element of the offense of robbery. See Tex. Pen. Code Ann. §§ 29.01(1), 29.02 (Vernon 2003). ⁽¹⁾

Standards of Review

Evidence is legally sufficient if, viewing all of the evidence in the light most favorable to the verdict, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. See King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). A conviction will be sustained unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).

Evidence is factually sufficient if, viewing all of the evidence in a neutral light, a rational fact finder would be justified in finding the defendant guilty beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which the evidence may be factually insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, considering all of the evidence, both for and against the verdict, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85.

Law

A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another. § 29.02(a)(1). The phrase "in the course of committing theft" is statutorily defined to include conduct that occurs in immediate flight after the attempt or commission of theft. § 29.01(1). However, neither the penal code nor case law defines "immediate flight." Oggletree v. State, 851 S.W.2d 367, 369 (Tex.App.-Houston [1^st Dist.] 1993, writ ref'd). Whether bodily injury was caused in the immediate flight from a theft must be determined by comparing the facts of the case with case law addressing the issue. Id.

Analysis

Appellant does not dispute that he committed theft nor that he injured Parker. However, appellant contends that he did not commit robbery because the bodily injury he caused Parker did not occur in the course of committing theft. Appellant contends that, since he subjectively believed that the managers could not pursue him once he left the store's property, he was not in immediate flight from the commission of the theft when he injured Parker. While appellant presents both legal and factual sufficiency issues, the argument for each issue is identical.

We initially note that appellant cites no case law nor provides any substantive argument to support his contention that his subjective belief that there was no reason to flee negates a determination that subsequent bodily injury was caused in immediate flight from a theft. This failure to adequately brief the issues presented precludes us from adequately evaluating these issues. See Tex. R. App. P. 38.1(h); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997). However, in an abundance of caution, we will address each of appellant's issues.

We construe appellant's sufficiency challenge to contend that appellant's subjective belief that he could not be pursued by the managers negated the essential robbery element that he caused another bodily injury while in immediate flight from the commission of the theft. In Oggletree, the appellant challenged the sufficiency of the evidence supporting his aggravated robbery conviction contending that the bodily injury that he caused upon his return to the scene of the theft was separate and distinct from his immediate flight from the attempted theft. Oggletree, 851 S.W.2d at 369. The court rejected this contention determining instead that, because the appellant had engaged in one continuous criminal episode uninterrupted by intervening circumstances, a rational jury could have found that the appellant caused bodily injury in the immediate flight from the attempted theft. Id. 369-70. Thus, in Oggletree, the appellant's subjective belief that he had successfully fled from the theft prior to his return to the scene of the crime had no bearing on the determination of whether appellant caused another bodily injury in immediate flight from the theft. Based on the reasoning of Oggletree, we are not persuaded by appellant's main argument that his subjective belief negates a determination that he caused another bodily injury in the commission of theft. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

Viewing all of the evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient to enable a rational jury to find, beyond a reasonable doubt, that appellant caused Parker bodily injury while in immediate flight from the theft. See King, 29 S.W.3d at 562. We overrule appellant's first issue.

Further, having rejected appellant's contention regarding the effect of his subjective belief, we conclude that the remaining evidence, when viewed in a neutral light, is not so weak that a rational jury could not have found appellant guilty of robbery beyond a reasonable doubt. Evidence was presented that appellant alternated between walking and running from the pursuing managers, threatened the managers in an attempt to dissuade them from following him, threw a bottle at the managers to halt their pursuit, attempted to evade their pursuit by darting into a stairwell at a nearby apartment complex, and attacked Parker to elude apprehension. We conclude that this evidence is sufficient to establish that appellant acted in one continuous criminal episode uninterrupted by intervening circumstances and, therefore, the jury was rationally justified in concluding that appellant injured Parker while in immediate flight from the theft. We overrule appellant's second issue.

Conclusion

Concluding that the evidence supporting appellant's conviction for robbery was both legally and factually sufficient, we affirm the judgment of the trial court.

Mackey K. Hancock

Justice

1. Further reference to provisions of the Texas Penal Code will be by reference to "§ __."