Willie Frank Campbell v. State

Willie Frank Campbell v. State IN THE TENTH COURT OF APPEALS No. 10-01-233-CR      WILLIE FRANK CAMPBELL,                                                                          Appellant      v.      THE STATE OF TEXAS,                                                                          Appellee From the 54th District Court McLennan County, Texas Trial Court # 2000-956-C                                                                                                                                                                                                                          CONCURRING OPINION TO ORDER SETTING BAIL                                                                                                                       Two points should be made in support of our order setting bail in the amount of $10,000. First, bail was set by McLennan County authorities at $7,500 when Willie Frank Campbell was arrested and charged. This order represents bail one-third higher.       Second, because of this Court’s delay in acting on the State’s motion for rehearing, Campbell has remained in prison without bail being set, having already had his conviction reversed, for many months longer than he would have had we acted expeditiously. Because that may affect the State’s ability to retry him, we should take it into consideration. See Montalvo v. State, 786 S.W.2d 710, 711 (Tex. Crim. App. 1989) (State’s ability to retry Appellant is a factor is setting bail after reversal).       The opinion reversing Campbell’s conviction, which began his entitlement to bail, was issued on January 8, 2003. The State requested, and received, an extension of time to file its motion for rehearing, which was ultimately filed on February 20, 2003. The motion for rehearing was not acted on by this Court until January 14, 2004, almost eleven (11) months after it was filed. This delay has been prejudicial to both Campbell and to the State, which intends to retry him.       As an appellate court, we follow certain guidelines regarding the time it should take to decide a case. The categories tracked by the Office of Court Administration are: (1) cases submitted and undecided for more than six months but less than twelve months; (2) cases submitted and undecided for more than twelve months; and (3) motions for rehearing that have been pending over thirty days. Because the State’s motion for rehearing had not been decided by March 22, 2003, it first appeared on the monthly report dated March 31, 2003. It has appeared on every monthly report since that date.                                                                         BILL VANCE                                                                        Justice Concurring opinion delivered and filed January 21, 2004 Publish r’s challenge is brought under the Jackson standard, we will limit our review of legal sufficiency to the “federal standard.”[1]          We turn to the evidence to determine whether the State proved that Booker was the actor who was on Gonzalez’s property, without consent and with notice that his presence was forbidden.          At trial, Gonzalez and Booker testified about the events on the day in question. Gonzalez’s wife Susan testified on rebuttal, and Booker then testified a second time.  Using exhibits, Gonzalez described the physical layout of the property, including the location and description of fences and gates—one locked and chained and two that remained unlocked, but normally closed. Gonzalez said that one of his motion-actuated alarms went off around 10 p.m.  He looked at the video monitor, which showed the driveway in the lower right-hand corner, and saw a brown baseball cap on the head of a person looking South. That person turned left, went down the side of the house, and “when he got right nearly to the front of the house, he went out to the center of the driveway, proceeded towards Main Street, got to the sidewalk, hesitated, looked left, looked right, took a left.” When the person reached the bridge or overpass across the street, Gonzalez got in his wheelchair, went outside and told the person to lie down in the street. He said “the individual at the end of the drive that turned North was the individual I intercepted. No one was in between the point of the image turning North and when I came out on the front porch with a shotgun to intercept.” Questioned whether Booker was the person he saw on the monitor, Gonzalez said, “I can’t say that for sure. I can only say I see the person I saw in the back of the police car that was handcuffed.” Later, however, he answered “None” when asked, “Is there any doubt in your mind that the person that you saw on the monitor was the same person that you held at gunpoint.?” He said that he never saw Booker on his property after he went outside with the shotgun. When the police arrived, they found that the back door had been kicked in. It was the motion detector inside that door that set off the alarm. Gonzalez also said that the individual who set off the alarm must have come over the fence because the access gate was locked and he did not see anyone on the monitor come down the driveway. Later, he said that Booker told him, “Two Mexicans ran – I saw two Mexicans run South.” At the close of his testimony, the following exchange took place: Q.               Can you positively identify the cap that you saw on your driveway outside the fence as this gentleman sitting right here?  A.               No.  Q.               Can you say without a doubt that you never turned away from that monitor from the time you saw the movement until the time you ended up on your porch with a shotgun?  [Objection overruled]  A.               Say it again real slow.         Q.               Can you testify definitively, positively that from the time you saw the movement on the monitor that you never turned your head away from that monitor and you never took your eyes off of it?  A.               No. I cannot say that.  During the defendant’s case, the clothes that Booker was wearing the night of his arrest, which were still in the possession of the jail, were admitted into evidence. He described them as a black jacket, a pair of Lugz shoes, blue jeans, a shirt, and a ball cap. He said he worked that day, got off work about 7:40 or 7:45 p.m., rode a bus (which was late), and then walked toward a train station where he had some clothes stored. As he approached a bridge, he heard two sounds, ‘boom, boom,” like somebody shooting. He said he ducked down and saw “two Spanish guys coming down the driveway.” When they headed in the same direction he was going, he turned to walk the other way. As he walked beside the bridge, a man with a shotgun told him to “get down.” He told the man, “It was two Spanish guys that come running past me.” He denied being on Gonzalez’s property, inside the fence or house, or kicking the door in. He said he cannot kick because of fused bones and screws in his hip joint that also prevent climbing. In response to Gonzalez’s testimony about a brown cap and tan jacket, Booker said he does not own a tan jacket and his cap is like Army camouflage.          On cross-examination, Booker said he had an apartment in the area but could not sleep there because people kept breaking into it and he was going to pick up his clothes and go to a mission to see if he could find a place to spend the night. He gave a description of the two Spanish men. He also admitted to being a convicted felon.          Susan testified that she watched on the monitor as a figure walked down the driveway toward the street. She said it was a slender person with a light-colored cap. When he got close to the street, he stopped, started to turn South, then turned North, and she watched until he got out of camera range. She said that it is hard to distinguish colors at night on their surveillance system. She admitted that she never saw Booker’s face that night.          Only Gonzalez testified on the issue of permission, saying that he never gave Booker permission to be on his property.          On the issue of notice, the State relies on the testimony about the physical layout of Gonzalez’s property—the fences and the gates—and the attempt to force open a closed door as evidence of notice that entry was forbidden. Booker points to the absence of testimony about signs or other formal means of notice that entry was prohibited. Viewing all the evidence in the light most favorable to the determination of guilt, we find that consent was not at issue and identity and notice were established to a significant degree by circumstantial evidence.  Thus, the evidence is such that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789.  Finding the evidence legally sufficient, we overrule issue one. Turning to the question of factual sufficiency, we are immediately confronted with a credibility issue. If there were two Spanish men running away, as Booker testified, a verdict of guilty would not be appropriate under the beyond-a-reasonable-doubt standard. That determination, however, rests with the factfinder. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001) (The factfinder accepts or rejects reasonably equal competing theories of a case.). Other conflicts in the evidence can be reconciled, and it is the job of the factfinder to do so. See Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997) (The evidence is not factually insufficient merely because the factfinder resolved conflicting views of evidence in favor of the State.). Thus, in this instance, we defer to the factfinder’s role and unique position—one that we as a reviewing court are unable to occupy. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). Viewing all the evidence in a neutral light, we believe that a finding of guilt based on credibility determinations is supported by evidence beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. We overrule Booker’s second issue.          Having overruled the issues, we affirm the judgment.   BILL VANCE Justice  Before Chief Justice Gray, Justice Vance, and Justice Reyna          (Chief Justice Gray concurs in the result without a separate opinion) Affirmed Opinion delivered and filed November 23, 2005 Do not publish [CV25]     [1]      The only additional discussion of the “dual standard” by the Court of Criminal Appeals that we can find is in Gharbi v. State, 131 S.W.3d 481, 482-83 (Tex. Crim. App. 2003) (“federal constitutional law measures evidentiary sufficiency against the ‘elements of the criminal offense as defined by state law’” and “state law measures evidentiary sufficiency against an ‘authorized by the indictment ... hypothetically correct jury charge’ which ‘encompasses [the] statutory elements of the offense as modified by the charging instrument’").