Stephanie Lester v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-09-00048-CR ______________________________ STEPHANIE LESTER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 22836 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION In a Lamar County jury trial, Stephanie Lester was convicted of aggravated assault with the use of a deadly weapon. (1) Lester urges on appeal that the evidence is legally and factually insufficient to support the conviction, because there is insufficient evidence to support a finding that the knife used was a deadly weapon. The State agrees that the evidence is factually insufficient to prove that the knife was a deadly weapon. Lester and the State have jointly asked, based on this reversible error, that we reverse the conviction and remand the case for a new trial. Here, not only have the parties agreed that reversible error exists, the record readily demonstrates the factual, but not the legal, insufficiency of the evidence to establish that the weapon Lester used was a deadly weapon. Thus, we grant the joint motion, reverse Lester's conviction, and remand the case for further proceedings. (2) Josh R. Morriss, III Chief Justice Date Submitted: November 5, 2009 Date Decided: November 6, 2009 Do Not Publish 1. Lester was sentenced to four years' confinement and a $2,000.00 fine. 2. Rule 39.8 of the Texas Rules of Appellate Procedure requires that the clerk of this Court provide the parties at least twenty-one days' notice before argument or submission of a case without argument. Tex. R. App. P. 39.8. To expedite a decision, Rule 2 of the same rules authorizes a court on its own initiative to suspend the operation of a rule in a particular case. Tex. R. App. P. 2. By their joint motion, the parties seek immediate appellate relief. On our own initiative, we apply Rule 2 and submit the case without the notice set out by Rule 39.8. ="margin-left: 0.5in; margin-right: 0.5in"> THE STATE OF TEXAS, Appellee On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 18272 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION James Earl Workman was convicted and placed on community supervision for the offense of engaging in organized criminal activity and for two counts of theft of property valued at more than $1,500.00, but less than $20,000.00. The State filed a motion to revoke community supervision, alleging Workman had committed another criminal act and thereby violated a term of his supervision. A hearing was held, and the trial court revoked Workman's supervision. The court then sentenced Workman to five years' imprisonment for the engaging in organized criminal activity offense and two years' imprisonment for each of the two theft offenses, such sentences to run concurrently. Workman appeals, claiming the evidence was insufficient to find a violation of the terms of his community supervision. We overrule his contentions and affirm the judgment. The State's motion to revoke contained one allegation, that Workman had fled from "J. D. CLARK, A PEACE OFFICER, WHO [WORKMAN] KNEW TO BE A PEACE OFFICER, AND SAID PEACE OFFICER WAS THEN AND THERE ATTEMPTING TO LAWFULLY ARREST OR DETAIN [WORKMAN]," and such act violated a term of Workman's community supervision, namely, that Workman "[c]ommit no offense against the laws of this State, or any other State or of the United States." The State's evidence showed that Clark, a deputy with the Lamar County Sheriff's Department who works with the Regional Drug Task Force, testified the department received an anonymous tip that Doug George was selling narcotics at a particular residence. Clark and other officers found the location and watched the trailer house for about thirty minutes; seeing no cars come or go, they approached the front door. Clark and another deputy went to the door of the trailer house while two other officers, Trooper Stacy McNeal and Investigator Michael Taylor, went to the back of the house. George answered the door; Workman was with him. Clark testified he personally knew both George and Workman. Clark told George the officers had received a tip that he (George) was selling narcotics from the home. George denied this and told Clark he could "look around." Clark asked George if he had any weapons or narcotics on his person; George answered in the negative and consented when Clark asked to search George's person. While Clark was searching George, Clark told Workman on at least two occasions to keep his hands out of his pockets. When Clark found a syringe and an empty glass vial in George's pocket, Workman fled from the house. Clark called out to officers in the back that Workman was running. Clark testified that, when he called out "he's running," he intended to alert the other officers that they should stop Workman. McNeal testified that, when he heard Clark's call of a suspect running, he interpreted the statement as an instruction for them to detain the person running from Clark's location. McNeal and Taylor pursued the fleeing Workman, who crossed a fence, became briefly ensnared in some briars, and then continued running before finally stopping. Both McNeal and Taylor testified they saw Workman running with his hand in his front pocket, then make a motion as if throwing something down. Although the officers searched the path Workman had run, they found no contraband. Workman presented no witnesses or testimony. The trial court found the allegation true and revoked Workman's community supervision, sentencing him as stated above. In a single point of error, Workman argues that the evidence is insufficient to prove he knew Clark was attempting to arrest or detain him. In the alternative, Workman claims that, because the allegation in the motion to revoke states he ran from Clark, a fatal variance existed between the motion to revoke and the evidence presented by the State at the hearing. According to Workman's reasoning, the only officers who commanded him to stop were McNeal and Taylor; thus, the motion should have stated he fled from them, not Clark. Appellate review of a revocation order is limited to determining whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). In a revocation proceeding, the state must prove by a preponderance of the evidence the defendant violated a condition of community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). If the state fails to meet its burden of proof, the trial court abuses its discretion in revoking community supervision. Cardona, 665 S.W.2d at 493–94. In determining the sufficiency of the evidence to sustain a revocation, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. [Panel Op.] 1979). At a revocation hearing, the trial court is the sole judge of the credibility of the witnesses and of the weight to be given their testimony; and, on appeal, the evidence must be viewed in the light most favorable to the trial court's ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); see Cardona, 665 S.W.2d at 493. Clark testified he did not tell Workman either to put up his hands or that he was detained. However, while Clark searched George, Workman put his hands in his pockets and Clark told Workman more than once to keep his hands from his pockets. McNeal and Taylor both ordered Workman to stop and drew their weapons. Workman's argument is that Clark manifested no clear intent to arrest or detain Workman, and the only law enforcement officers who did articulate such an intent were McNeal and Taylor. At issue, though, is not the officer's intent, but Workman's. Section 38.04 of the Texas Penal Code provides that a person commits an offense if such person intentionally flees from a person he or she knows is a peace officer attempting lawfully to arrest or detain him or her. Tex. Pen. Code Ann. § 38.04 (Vernon 2003). Intent may be inferred from a party's acts. See Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998); Slomba v. State, 997 S.W.2d 781, 783 (Tex. App.—Texarkana 1999, pet. ref'd). Here, Workman was present when Clark told George there was a report of narcotics trafficking and Clark asked to search George. By repeatedly putting his hand in his pocket, and then running when drug paraphernalia was found on George's person, it is reasonable for the trial court, acting as fact-finder, to infer that Workman was intentionally fleeing from Clark. Workman's argument that he did not know Clark was attempting to detain him is belied by his act of running from the officer. In the totality of the circumstances, the trial court was within its discretion in finding, by a preponderance of the evidence, that Workman knew Clark was an officer of the law who was attempting to detain him. Workman's alternative argument fails as well. The language alleging a violation of the terms of community supervision does not require the same specificity as that of an indictment. See Bradley v. State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980). The motion's allegations must simply allege a criminal violation and provide fair notice to the defendant. Id. The motion to revoke alleges the necessary elements of evading detention. Workman was on notice of the alleged criminal conduct, as well as when and where it allegedly occurred. The evidence clearly shows that Workman was evading all the officers at the scene. The trial court's finding was within its discretion. Workman's single point of error is overruled. We affirm the judgment. Donald R. Ross Justice Date Submitted: December 6, 2004 Date Decided: May 26, 2005 Do Not Publish