Todd Phillippi v. State

IN THE TENTH COURT OF APPEALS No. 10-10-00347-CR No. 10-10-00348-CR Todd Phillippi, Appellant v. The State of Texas, Appellee From the County Court at Law Ellis County, Texas Trial Court Nos. 05-C-3702 and 05-C-3707 MEMORANDUM Opinion The briefs in these appeals were originally due to be filed by February 4, 2011. When no briefs were filed, a late brief notice was sent to appellant, Todd Phillippi, on February 15, 2011. Twenty days later, Phillippi’s motion for extension of time to file his briefs was filed. The Court granted an extension of time to file the briefs to June 20, 2011. No briefs were filed for Phillippi. By letter dated June 30, 2011, the Clerk of this Court notified Phillippi that pursuant to Rules 38.8(a)(1) and 42.3 of the Texas Rules of Appellate Procedure, the Court would dismiss these appeals for want of prosecution unless, within 21 days of the date of the letter, a brief was filed in each of these appeals. Phillippi was further warned that if no briefs were filed by 5:00 p.m. on July 21, 2011, these appeals would be dismissed. Tex. R. App. P. 42.3(b). No briefs were filed by the 5:00 p.m. deadline. Accordingly, these appeals are dismissed. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Opinion delivered and filed August 3, 2011 Do not publish [CV06] at 750 (quoting Hooper at 13) (internal quotation marks omitted); see Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). “[C]ourts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review.” Evans v. State, 202 S.W.3d 158, 165 n.27 (Tex. Crim. App. 2006) (quoting City of Keller v Wilson, 168 S.W.3d 802, 821 (Tex. 2005)) (alteration added). “When the court is faced with a record of historical facts that supports conflicting inferences, it must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution.” Jackson at 326; Evans at 164 n.19. Jones concedes the evidence that he said to Vaughn on the date alleged in the indictment, “[W]ell, you know you are dead”; and a couple of days later, “[Y]ou remember I told you, you were dead.” (Br. at 2 (quoting 2 R.R. at 100, 101-102) (alterations added).) By the second time, Vaughn “felt like [Jones] meant business.” (Id. (quoting 2 R.R. at 101) (alteration added).) Viewing the evidence and inferences therefrom in the light most favorable to the prosecution, we hold that reasonable jurors could have believed beyond a reasonable doubt that Jones intended to place Vaughn in fear of imminent serious bodily injury. The evidence was legally sufficient. We overrule Jones’s first issue. Factual Sufficiency. In Jones’s second issue, he contends that the evidence was factually insufficient. “Evidence may be factually insufficient if: ‘1) it is so weak’” that the verdict is “‘clearly wrong and manifestly unjust or 2) the adverse finding is against the great weight and preponderance of the available evidence.’” Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); see Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). “[T]he evidence . . . is factually insufficient if it is so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or” if, “considering conflicting evidence, the jury’s verdict, though” supported by “legally sufficient” evidence, “is nevertheless against the great weight and preponderance of the evidence.” Berry at 854 (citing Watson at 414-15); see Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). “Such a factual sufficiency review requires the reviewing court to consider all of the evidence.” Berry at 854 (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007)). “[T]he evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict.” Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); accord Johnson, 23 S.W.3d at 7. “A clearly wrong and unjust verdict occurs where the jury’s finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias.” Berry at 854 (citing Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003)); accord Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). “[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury’s verdict before it is justified in” reversing for factually insufficient evidence. Watson at 417. “When reversing on insufficiency grounds, the appellate court” must “detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding is factually insufficient. The opinion” must “state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.” Johnson, 23 S.W.3d at 7 (citing Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996)); see Roberts v. State, 221 S.W.3d 659, 664 n.8 (Tex. Crim. App. 2007); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). “Reversal of the judgment and remand for a new trial is the proper remedy when a court of appeals finds that evidence is factually insufficient.” Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004)); see Watson, 204 S.W.3d at 414. Jones points primarily to the following evidence. About May 12, 2007, Vaughn lost her campaign for reelection to the Hearne City Council. On May 29, the date of the first Council meeting after the election, when Jones first said to Vaughn that she was “dead,” Vaughn did not feel threatened. Vaughn waited while Jones went back inside the Council chamber, and when Jones came back outside, Vaughn continued to ask Jones what he had meant. Jones told Vaughn that she “had skeletons in the closet” and “was not perfect.” (Br. at 2 (citing 2 R.R. at 100).) Jones did not raise his voice, did not appear to have a weapon, and did not raise his fist. On May 31, when Jones again said to Vaughn, “[Y]ou are dead,” he added, “and I mean politically dead.” (Id. (quoting 2 R.R. at 106) (alteration added).) Considering all the evidence in a neutral light, we hold that the great weight and preponderance of the evidence contradicts the jury’s finding that Jones intended to place Vaughn in fear of serious bodily injury. The evidence that Jones, in referring to Vaughn’s “political” death, described a state of affairs or, at most, threatened Vaughn with blackmail, greatly outweighs the evidence that Jones intended to place Vaughn in fear of serious bodily injury. The evidence was factually insufficient. We sustain Jones’s second issue. Conclusion. Having overruled Jones’s first issue and sustained his second, without reaching his third issue, we reverse the judgment and remand the cause. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Reversed and remanded Opinion delivered and filed August 6, 2008 Do not publish [CR25]