Tyrone Londale Talton v. State
This text of Tyrone Londale Talton v. State (Tyrone Londale Talton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Tyrone Londale Talton has filed a notice of appeal under a caption referring to a felony conviction and also a misdemeanor conviction. Counsel Steven Frost contacted this Court, in writing, explaining that the inclusion of the misdemeanor conviction in the caption was a mistake and that the appeal was only from the felony conviction. On June 19, 2003, counsel filed a motion to dismiss the appeal. That motion is signed by counsel, but is not signed by the defendant as required by Tex. R. App. P. 42.2(a).
We contacted counsel in an effort to obtain a motion containing Talton's signature. None has been forthcoming. In this instance, because of the nature of this appeal and the pendency of the felony appeal, we find it appropriate to apply Tex. R. App. P. 2 to suspend the operation of Rule 42.2(a), and based on the representations of counsel, we dismiss the appeal.
The appeal is dismissed.
Donald R. Ross
Justice
Date Submitted: September 3, 2003
Date Decided: September 4, 2003
Do Not Publish
all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 129. In making this review, we examine the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
Employing appropriate deference to avoid substituting our judgment for that of the fact finder, we will set aside the verdict for factual insufficiency if the evidence was (1) so weak as to be clearly wrong and manifestly unjust, or (2) the adverse finding was against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 9.
The evidence brought out at trial shows that Banks was pulled over by police officers who observed Banks following other cars too closely and swerving from one lane into another. The arresting officer, Deputy Kelsey Coleman, testified that he smelled alcohol on Banks's breath, that Banks had difficulty maintaining his balance, and that Banks did not pass a horizontal nystagmus test. Deputy Michael Landers, who examined Banks in the intoxylizer room after his arrest, testified that Banks smelled of alcohol and had difficulty maintaining his balance. Landers also testified that he watched Banks weave down the hallway at the jail, almost hitting the wall. Both officers testified that Banks's eyes were extremely red, bloodshot, and glassy and that his speech was slow and very slurred. Both officers then concluded from their observations that Banks was intoxicated to the point that he did not have the normal use of his mental faculties.
Defense counsel elicited testimony that Banks has a slight lisp and that his speech is never particularly clear, suggesting that his slurred speech was not due to alcohol, but was simply his usual speech pattern. There was also evidence that Banks became very loud and aggressive when accused of a misdeed. There was no evidence, however, that cast doubt on or contradicted the officers' descriptions of Banks's physical condition and his apparent intoxication.
The evidence is both legally and factually sufficient to support the verdict, and the evidence to the contrary is not so compelling as to require a different result.
The judgment is affirmed.
Ben Z. Grant
Date Submitted: January 3, 2002
Date Decided: January 25, 2002
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