Kim Newman v. State of Texas

Willie Thornton v. State of Texas IN THE TENTH COURT OF APPEALS No. 10-00-068-CR KIM NEWMAN, Appellant v. THE STATE OF TEXAS, Appellee From the Criminal District Court No. Four Dallas County, Texas Trial Court # F99-71384-K O P I N I O N Appellant Kim Newman, a/k/a “Black Rat,” shot a former school acquaintance three times during a robbery outside a Dallas apartment complex. He was convicted by a jury of the offense of aggravated robbery and was sentenced by the trial court to confinement for life after he pleaded “true” to two prior felony offenses alleged as enhancement paragraphs. See Tex. Pen. Code Ann. §§ 29.02-29.03 (Vernon 1994). He appeals, bringing two points of error: (1) the evidence is factually insufficient to sustain the jury’s verdict; and (2) the trial court abused its discretion in overruling his motion for continuance. We will affirm. Appellant advances two specific arguments in connection with his factual sufficiency complaint: the evidence is insufficient to show appellant was in the course of committing theft at the time the victim suffered his injury; and the evidence did not demonstrate appellant acted with the specific intent to maintain control of the victim’s property. We begin with a review of the trial testimony. Timothy Harle spent the evening of October 1, 1998, visiting a friend at the Willow City Apartments while waiting for his fiancé to arrive. At approximately 8:30 p.m., Harle looked outside the friend’s apartment window and saw his fiancé’s vehicle enter the parking lot. He left the apartment and began walking down the stairs to meet her. As Harle continued to walk toward her vehicle he noticed someone walking near him. As he turned he saw appellant, a childhood acquaintance, pointing a handgun at him with one hand and drawing a second handgun from his waist with his other hand. Harle ran as appellant began shooting. One bullet struck Harle in the leg. Appellant continued to chase Harle as he fired. Harle fell, then got up and ran again. He was then struck by another bullet. Harle again fell. Appellant approached him and told him “break yourself.” Harle testified that in street parlance “break yourself” means to give up all money and valuables in your possession. Harle responded “Man, I don’t have nothing,” to which appellant replied “Nigger, I said break yourself before I kill you.” Although wounded, Harle again tried to run, but stopped after he was struck by a third bullet. Harle then took approximately eight hundred dollars in cash out of his pocket, threw it into the air, then stood up and ran. He banged on the door of a nearby residence and asked for help. The resident declined to open the door but told him he would phone 911. Harle survived his injuries but required extensive surgery because of bullet exit wounds through his genitalia. Several defensive theories were advanced at trial. Appellant’s counsel argued that because Harle was initially hesitant to name appellant as the assailant, that it was reasonable to believe someone else committed the offense. Counsel also suggested that perhaps something other than robbery motivated the shooting, and suggested Harle’s testimony that appellant wanted his valuables was contradicted by the fact that the bullet’s struck Harle in the area of his buttocks rather than his head. On appeal, counsel suggests a third theory: that the shooting may have been motivated by an argument between Harle and an acquaintance of appellant several weeks earlier. We are not persuaded the somewhat meager evidence supporting these theories required the jury to reject the State’s theory that appellant shot Harle during a robbery. In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. In performing this review, we are to give due deference to the fact finder’s determinations. Id. at 8-9; Clewis, 922 S.W.2d at 136. Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest injustice. Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). To prove aggravated robbery, the State was required to prove that appellant: (1) in the course of committing theft; (2) with the intent to obtain or maintain control of property; (3) intentionally, knowingly, or recklessly; (4) caused bodily injury or death; and that he (5) used or exhibited a deadly weapon. Tex. Pen. Code Ann. §§ 29.02-29.03; Caldwell v. State, 943 S.W.2d 551, 552 (Tex. App.—Waco 1997, no pet.). Appellant maintains the evidence as to the first and second elements is lacking in this case. We disagree. The fact that Harle was shot before he gave appellant his money is inconsequential, as the jurors could have reasonably believed that appellant shot Harle in order to prevent him from fleeing the robbery. Similarly, the jurors could have rationally determined from the evidence that when appellant, using street language, communicated to Harle he would kill him unless he gave him his valuables, appellant intended to obtain or maintain control over that property. A factual sufficiency review of circumstantial evidence, such as the element of intent, is the same in a factual sufficiency review as a review of direct evidence. See Desselles v. State, 934 S.W.2d 874, 878 (Tex. App.—Waco 1996, no pet.). Even if it were not, we would still be constrained to overrule appellant’s complaint because the evidence of intent is not so weak as to undermine confidence in the verdict. Our neutral review of all the evidence leads us to conclude that the evidence supporting appellant’s guilt is not greatly outweighed by contrary proof and is not clearly wrong or manifestly unjust. Point one is overruled. In his second point, appellant contends that the trial court abused its discretion in overruling his motion for continuance. His specific argument is that a continuance was necessary because he had refused to confer with his court appointed counsel until shortly before trial due to his mistaken belief that his mother had retained another attorney to represent him. The decision granting or denying a motion for continuance is within the sound discretion of the trial court. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000). In order to establish an abuse of discretion, an appellant must show that the denial of his motion resulted in actual prejudice. Id. In the context of a complaint that the denial of a continuance has resulted in representation by counsel who was not prepared for trial, there must be a showing the defendant was prejudiced by counsel’s inadequate preparation time. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). In an attempt to show prejudice in the instant case, appellant argues that appellant’s initial refusal to cooperate with appointed counsel placed him “in a bad position,” and that had appellant cooperated with counsel sooner, “he may have been able to bring witnesses or show other circumstances that would support a finding of not guilty.” Showing high ethical standards, however appellate counsel notes: “admittedly, [appointed counsel] was able to have witnesses subpoenaed after the trial began based on information the appellant provided to him.” No actual prejudice is suggested by appellant. Lacking any tangible evidence of harm to appellant, we hold that appellant has failed to show the requisite prejudice necessary to establish an abuse of discretion on the part of the trial court. See Heiselbetz v. State, 906 S.W.2d at 512. In addition, appellant’s argument fails for a second reason. The record reflects appellant was personally responsible for his earlier failure to consult with appointed counsel. Appellant’s motion for continuance was made on December 13, 1999. Appellant’s appointed counsel, Hon. George Ashford, filed numerous pretrial motions on appellant’s behalf beginning on August 31, 1999. The record also reflects that appellant had a history of representing to the trial court that he was in the process of retaining outside counsel. After listening to appellant explain on the day of trial that he mistakenly believed that his family had hired another attorney to represent him, the trial court stated: THE COURT: Well, you better sit down and tell [appointed counsel] who your witnesses are, my friend. This case is going to come to a conclusion. This is the same story I’ve been hearing all along. There’s always somebody else – just a moment. [APPELLANT:] I’m not trying to give you no run-around. THE COURT: Mr. Newman, every time this case has been set, there’s always somebody else that’s going to come in here and rescue you from this lawyer. Your case is set today. Because appellant was responsible for his failure to communicate with appointed counsel, we hold the trial court court did not abuse its discretion in denying appellant’s motion for continuance. See Rosales v. State, 841 S.W.2d 368, 372 (Tex. Crim. App. 1992) (noting historical record of reversals for denial of continuance where counsel was not prepared “through no fault of the accused”). Point two is overruled. The trial court’s judgment is affirmed. DAVID L. RICHARDS Justice Before Justice Vance, Justice Gray, and Justice Richards (Sitting by Assignment) Affirmed Opinion delivered and filed May 30, 2001 Do not publish