Korey Allen Parker v. State

IN THE TENTH COURT OF APPEALS No. 10-09-00213-CR Korey Allen Parker, Appellant v. The State of Texas, Appellee From the 82nd District Court Falls County, Texas Trial Court No. 8624 MEMORANDUM Opinion Korey Allen Parker was convicted of burglary of a habitation. Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). He was sentenced to twenty years in prison. We affirm. Randy Deiterich came home early from work one day and noticed a car parked along the country road on which Deiterich lived. When he pulled into his driveway, he saw Parker look around from the back of a corner of Deiterich’s house. Parker was in the area of the back door. Parker then fled, running through pastures and jumping over barbed-wire fences. While Parker was running, Deiterich saw that Parker had a pry bar in his hand. Deiterich then repositioned himself in his vehicle near the parked car. When Parker ran to the parked car, Deiterich saw that Parker no longer had the pry bar and had pulled his shirt off and over his head. Parker got into the car and drove away. He was soon caught in another town. When Deiterich approached the back door of his house, he found several items from his house in a bag outside of the house where Parker had been seen. A rifle of Deiterich’s that had been in a case in the house was also outside, leaning against the house in the same area where Parker had been seen. The Falls County Sheriff and two deputies arrived at Deiterich’s house. No one had a camera, so no pictures of the scene or property were taken at that time. One of the deputies noticed pry marks on the back door of Deiterich’s house. Because of the texture of the door, it was not dusted for prints. Deiterich’s property was taken to the Falls County Sheriff’s Office and dusted for prints. No readable prints were found. Later in the week, when the deputy went back to take pictures of the door damaged during the burglary, Deiterich had already replaced the door. The deputy took a picture of the damaged door which was then leaning against Deiterich’s garage. In one issue, Parker argues that the evidence is legally insufficient to prove that he committed burglary of a habitation because there was no direct evidence that he entered Deiterich’s house. When reviewing the legal sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct evidence of the elements of the offense is not required. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). Further, juries are permitted to make reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Id. at 14-15. Circumstantial evidence alone can be sufficient to establish guilt. Id. at 15. In reviewing the evidence under the appropriate standard, we find the evidence legally sufficient to support Parker’s conviction for burglary of a habitation. Parker’s sole issue is overruled. The trial court’s judgment is affirmed. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed October 6, 2010 Do not publish [CR25] that the refusal to appoint commissioners and the “dismissal with prejudice” ruling were abuses of discretion. The trial court lacked jurisdiction to act outside of the statute during the administrative phase of the condemnation proceeding. See In re State, 85 S.W.3d at 875 (holding that trial court lacks jurisdiction to act beyond statute during administrative phase of proceeding and any such action is abuse of discretion). The trial court abused its discretion because it had a duty to appoint special commissioners and lacked jurisdiction to dismiss ETC’s cases on res judicata grounds. We sustain ETC’s first issues in each proceeding. Inadequate Remedy at Law An abuse of discretion alone does not warrant the issuance of a writ of mandamus. We must also consider whether ETC has an adequate remedy at law by appeal or otherwise. There is not an adequate remedy by appeal when a party is in danger of permanent deprivation of substantial rights. Id. at 388. The landowners argue that an adequate remedy by appeal is available because ETC is currently pursuing appellate remedies in this court.[2] See In re Lerma, 144 S.W.3d 21 (Tex. App.—El Paso 2004, orig. proceeding) (denying writ when relator had two appeals pending when mandamus was filed). The Fourth Court of Appeals’ opinion in Garcia is instructive on this issue. See Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821, 824 (Tex. App.—San Antonio 1994, orig. proceeding). In Garcia, the San Antonio Court of Appeals found mandamus to be proper where the relator, who was seeking to condemn an easement for a pipeline, faced a sixty-day delay in the condemnation proceeding due to the trial court's interference and penalties and expenses associated with the delay. The Garcia court concluded that "neither the district court nor a court of appeals has any mechanism by which it could return the expedited procedure and costs of which the relator was deprived." Id. The court also held that mandamus relief is generally proper when a judicial body operates to deny a litigant a peculiar right or directly interferes with the jurisdiction of another court or administrative body. Id. Like Garcia, appeal is not an adequate remedy in this case. In Garcia the trial court, by way of injunction and continuance, was effectively delaying the commissioners’ hearing process by sixty days. Here, the trial court has gone far beyond Garica by refusing to appoint special commissioners. Additionally, more than ninety days have passed since the filing of the original petition. The Property Code provides condemnors a substantial right to an expedited hearing and possession of the easement immediately after the commissioners file their findings. See id. The delay involved in this case, like Garcia, is not the delay of waiting until a court proceeding is over to appeal, but the delay of wrongfully halted proceedings over which another body has jurisdiction. Id.; cf. HCA Health Servs. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992) (no adequate remedy by appeal for litigation deadlocked when two courts attempted to exercise jurisdiction). Because the trial court's orders permanently deprive ETC of the substantial right of an expedited procedure and it has no adequate remedy by appeal, ETC is entitled to mandamus relief. See Prudential, 148 S.W. 3d at 135-39. We sustain ETC’s second issue. Conclusion Having determined that the trial court was without jurisdiction to refuse to appoint special commissioners and to grant the motions to dismiss on res judicata grounds, we conditionally grant mandamus relief. See In re Energy Transfer Fuel, LP, 250 S.W.3d at 182; see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). The writ will issue in each case only if Respondent fails to withdraw his order granting the motion to dismiss signed on March 31, 2008, or fails to appoint special commissioners within 21 days from the date of this opinion. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissents with a note)* Petitions granted Opinion delivered and filed October 1, 2008 [OT06] * (Chief Justice Gray would deny each of the five petitions for writ of mandamus. A separate opinion will not issue. He notes, however, that while he agrees with the analysis of In re State, 65 S.W.3d 383 (Tex. App.—Tyler 2002, orig. proceeding) and Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821 (Tex. App.—San Antonio 1994, orig. proceeding), those proceedings are easily distinguished. In State and Garcia, the administrative portion of the condemnation proceeding was ongoing, and the trial court was attempting to exercise control over and during the administrative process. No final judgment had been rendered dismissing the proceeding. Thus, the only way to obtain relief from the trial court’s interference was by mandamus. In this proceeding, however, the trial court has rendered a final judgment of dismissal. That judgment can be directly and immediately appealed. This mandamus proceeding could be a more timely review of the trial court’s judgment than a direct appeal if we give it our immediate attention. But that is also true of any proceeding that has been finally disposed by the trial court. If the appeal needs to be expedited because of the nature of the underlying dispute, it can be. But there is no justification, much less authority, for hurtling this proceeding to the front of the line because it is filed as a mandamus when a direct appeal is not only available but is actually currently pending and, if appropriate, a motion to expedite can be filed and considered. Because there is an adequate remedy by direct appeal, he would deny ETC’s petition for a writ of mandamus. The Court’s ruling will, of course, moot the pending appeals and therefore Chief Justice Gray would simultaneously dismiss those five proceedings.) [1] The real-parties-in-interest/landowners in the five cases are FPJ Pipeline Corridor No. 1 L.L.C., FPJ Land Company, L.T.D., Reagan Management Company, Frederick L. Reagan, John F. Reagan, Patricia R. Myrick, FLR Pipeline Corridor No.1 L.L.C., Camp Cooley, LTD., North CC Pipeline Corridor, L.L.C., Martin Pipeline Corridor, L.L.C., Circle M Ranch, LTD., Ruth Martin Ranch, Inc., McCormick Pipeline Corridor, L.L.C., Kenneth C. McCormick, Sr., and Kenneth C. McCormick, Jr. The Respondent is the Honorable Robert Stem, sitting in the 82nd Judicial District Court of Robertson and Falls Counties, Texas. [2] ETC filed appellate briefs with this court on August 19, 2008 arguing in two issues that (1) the trial court abused its discretion in dismissing the case with prejudice when “dismissal with prejudice” was requested inadvertently and (2) that it was error for the court to deny its post-trial motions requesting that the order be corrected and dismissed “without prejudice.”