Rita Ratliff Rogers, Individually and as the Administrator of the Estate of John Norman Rogers, Deceased v. United Regional Health Care System, Inc. d/b/a Wichita General Hospital, Wichita Falls Famil

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2003 » Rita Ratliff Rogers, Individually and as the Administrator of the Estate of John Norman Rogers, Deceased v. United Regional Health Care System, Inc. d/b/a Wichita General Hospital, Wichita Falls Famil

State: Texas

Court: Texas Northern District Court

Docket No: 02-02-00374-CV

Case Date: 05/15/2003

Plaintiff: THOMAS W. SHAW

Defendant: DIRECTOR, UTMB, ET AL.--Appeal from 12th District Court of Walker County

Preview:Johnnie Parker v. State of Texas--Appeal from 175th Judicial District Court of Bexar County
No. 04-00-00811-CR Johnnie PARKER, Appellant v. The STATE of Texas, Appellee From the 175th District Court, Bexar County, Texas Trial Court No. 2000-CR-3370 Honorable Mary Roman, Judge Presiding Opinion by: Sandee Bryan Marion, Justice Sitting: Phil Hardberger, Chief Justice Paul W. Green, Justice Sandee Bryan Marion, Justice Delivered and Filed: January 30, 2002 AFFIRMED Appellant, Johnnie Parker ("Parker"), was convicted by a jury for conspiracy to commit aggravated robbery. On appeal, Parker presents several points of error. In his first, sixth, and seventh points of error, Parker contends that the evidence was legally and factually insufficient to support his conviction. In Parker's second point of error, he argues that his constitutional rights were violated because the State failed to properly notify him of its intent to seek an enhancement of his sentence. Parker complains, in this fourth and fifth points of error, that the trial court erred by enhancing his sentence with a previous state jail felony conviction which had not yet become final. Finally, Parker contends, in his third point of error, that the evidence is insufficient to support the conviction used to enhance his sentence. After reviewing the relevant law and the evidence in the record, we find that the trial court judgment should be affirmed. Statement of Facts On the evening of August 21, 1999, Justin Emerson, an assistant manager of a Pizza Hut in Helotes, Texas, went to the local bank to make a night deposit. As Emerson drove up to the bank's deposit box, he noticed two individuals standing on the roof of the garage. Although both persons were wearing masks at the time, Emerson could discern that both were male and that one was African American while his companion appeared to be Caucasian. According to Emerson, the African American, identified as Thomas Debrow, jumped off the roof and ran towards Emerson's car. Fearing for his life, Emerson quickly backed up his car so that he could leave the area. As he drove away, Debrow yelled "get back here" and then hit Emerson's car window with an object Emerson thought looked like "a small black gun, [with] a little snub nose." Emerson escaped with the money, and he was unharmed. After leaving the bank parking lot, Emerson went back to the Pizza Hut and called the police. Officer Wayne Franklin Waggoner, Officer James Scoggins, and Alcohol, Tobacco, and Firearms (ATF") Agent James Brigance investigated the crime. During the course of their investigation Johnnie Parker emerged as a suspect. Scoggins and Brigance located Parker in jail and they interviewed him about the attempted robbery. During the interview, Parker gave a written statement confessing to the crime and naming Debrow as the other individual involved in the crime. A jury found Parker guilty, and the trial court concluded that Parker was a repeat offender and enhanced his sentence to thirty
file:///C|/Users/Peter/Desktop/opinions/PDFs1/14621.html[8/20/2013 7:34:52 PM]

years of confinement. Parker now appeals both the jury's conviction and the court's enhancement of his sentence. Discussion A. Sufficiency of The Evidence In his first, sixth, and seventh points of error, Parker challenges the sufficiency of the evidence. More specifically, Parker contends that "the evidence of the aggravating element, use of [] a deadly weapon, is insufficient as a matter of law to sustain [his] conviction for the offense of aggravated robbery." Parker argues, further, that the evidence was legally and factually insufficient to support his conviction for conspiracy to commit aggravated robbery. Standard of Review We review the sufficiency of the evidence under the traditional standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979) (legal sufficiency); see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Cain v. State, 958 S.W. 2d 404, 407 (Tex. Crim. App. 1997) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (factual sufficiency). The standard of review is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). Analysis In Texas, the law provides that a person commits criminal conspiracy, with intent to commit a felony if, (1) he agrees with one or more persons that one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement. (b) An agreement constituting a conspiracy may be inferred from the acts of the parties. *** Williams v. State, 646 S.W.2d 221, 222 (Tex. Crim. App. 1983); Tex. Penal Code Ann. 15.02 (Vernon 1994). Thus, the corpus delecti of the crime of conspiracy is the agreement to commit a crime and an overt act in furtherance thereof. Williams, 646 S.W.2d at 222 (citing Brown v. State, 576 S.W.2d 36 (Tex. Crim. App. 1979)) (on rehearing). However, "[a] conspiracy to commit a crime is a separate and distinct crime from the substantive or 'object' offense. Commission of the substantive offense is not an essential element of the conspiracy charged." McCann v. State, 606 S.W.2d 897, 898 (Tex. Crim. App. 1980); see Farrington v. State, 489 S.W.2d 607, 609 (Tex. Crim. App. 1972) (citing Wilson v. State, 127 Tex. Cr. R. 152, 74 S.W.2d 1020, 1021 (Tex. Crim. App. 1934)); Turner v. State, 720 S.W.2d 161, 164 (Tex. App.-San Antonio 1986, writ ref'd). Commission of the substantive offense is not an essential element of the conspiracy charged; therefore, "[a] person may be guilty of criminal conspiracy by doing nothing more than agreeing to participate in the conspiracy, as long as another conspirator commits some overt act in furtherance of the conspiracy." W.S. Barber v. State, 764 S.W.2d 232, 235 (Tex. Crim. App. 1988). Direct evidence of a formal agreement to conspire is not required. Turner, 720 S.W.2d at 164 (citing Thrash v. State, 170 Tex. Cr. R. 97, 338 S.W.2d 447, 449 (1960)). In fact, conspiracy to commit a crime is seldom, if ever, shown by direct evidence because a conspirator's work is usually accomplished secretly. Id. Consequently, a fact finder may infer a positive agreement from the circumstantial evidence presented. Id. Viewing the evidence in a light most favorable to the judgment, we conclude that there was legally sufficient evidence to support the jury's finding that a gun was used in the commission of the underlying crime and to support Parker's conviction of conspiracy. Scoggins testified that he was one of the investigating officers in the case, and during his investigation, he discovered Parker as a possible suspect. After his discovery, he located Parker and proceeded to interview him, while he was in jail on an unrelated drug charge. During that exchange, Parker confessed to the following: I know a guy called Popper. His real name is Thomas Debrow. I have been hanging out with Popper for a lot of

file:///C|/Users/Peter/Desktop/opinions/PDFs1/14621.html[8/20/2013 7:34:52 PM]

years.... This year we had been hanging out and Popper wanted to get some money. He was talking about robbing a McDonalds hamburger place. I told him he was crazy but my stepbrother worked at a Pizza Hut in Helotes. He said, "Lets' rob em" and I told him he was crazy. He said that we didn't have to rob the store but that we could rob em when they "made a drop." He knew all food places made a drop at the night deposit at banks. About 3 days later we needed money. I needed a paint job on my car. Popper said that Pizza Hut made big drops on Saturday night. We drove out to the Pizza Hut in Helotes and watched them for two nights. We watched them from across the street. On both nights we saw that two people went in one car to make the drop. We followed them to the bank that was about a minute away. Each time, two guys went and one guy got out of the car and walked to the night deposit and put in a bag. On the next Saturday, Popper and me went to a guys house on the eastside. His name is Alleycat. He let us borrow a sawed off shotgun. He gave us four shotgun shells. It was a buckshot. The shotgun was a double barrell shotgun and it was sawed off at the pistol grip. It was about a foot long and had black tape wrapped around it. Popper knew the guy so he took the gun. He knew Popper better than me. That same night we drove my gray Oldsmobile and parked it on the side of a street that intersects Bandera Road by the bank where the Pizza Hut people made the deposit. It was almost right across the street from the bank. We took the shotgun. Popper carried it. It was loaded with a buckshot. We climbed on top of a covered parking roof and waited. It was dark. We wore gloves and ski masks that we bought at the army surplus store. We bought the gloves and stole the masks actually. We bought them the day after we followed them for the 2nd time. We waited for the Pizza Hut people to come and make the night deposit.... After about 30 minutes we saw a blue Oldsmobile drive up. I recognized it as my step brothers car. I told Popper I couldn't do it because it was family. He said, "allright .. stay back" and he jumped down with the shotgun. It was my stepbrother in the car and he backed up and rolled forward and the[n] he took off real quick. Popper ran after the car with the shotgun. He was right next to the car but he couldn't catch him. We ran to my car and got the heck out of Dodge. We went to the Texaco at Bandera and Tezel and put our clothes and masks in the dumpster and lit them on fire with lighter fluid. The[n] we went back to Alleycat's and dropped the gun off. Then we went to get high. *** Agent Brigance testified that when Debrow was eventually taken into custody, Parker informed Debrow that he had already told the police about the robbery, and that Debrow should also confess. Apparently after Parker spoke with Debrow, Debrow also agreed to give a statement concerning the robbery. Parker argues that a court cannot simply rely on an appellant's statement to establish an agreement in furtherance of a conspiracy. In fact, it is well-settled that an extra-judicial statement or confession, alone, without more, is insufficient to support a conviction for conspiracy. Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993); Self v. State, 513 S.W.2d 832, 837 (Tex. Crim. App. 1974). Thus, a defendant's confession must be corroborated by other evidence tending to show that the specific crime was committed. Fisher v. State, 851 S.W.2d 298, 302-03 (Tex. Crim. App. 1993); see Smith v. State, 363 S.W.2d 277, 279 (Tex. Crim. App. 1963) (citing Watson v. State, 154 Tex. Cr. R. 438, 443, 227 S.W.2d 559, 562 (1950)). However, we find that Emerson's testimony does in fact corroborate Parker's confession because it shows that there was an agreement between two individuals to commit aggravated robbery. At trial, Emerson testified that he went to the local bank to make a night deposit. As he drove up to the deposit box, he noticed two individuals on the roof, who were wearing masks. Although their faces were covered, Emerson was able to observe that one of the individuals was African American, while the other was Caucasian. When Emerson saw the African American assailant jump off the roof and run towards his car, he immediately tried to leave the area. However, as he was fleeing, the assailant hit his car with a black metal object and left a scratch on the window. Emerson told the jury that he believed that the object was actually a gun. In addition, there was physical evidence that Emerson's window was scratched in the manner that both Emerson and Parker describe. Finally, the record shows that Emerson was the only witness to the crime and that he never spoke with Parker about the incident. The jury, therefore, could have easily decided that Parker could not have known the details of the attempted robbery unless he had been there. It must be noted that "[t]he essential purpose of the corroboration requirement is to assure that no person is convicted without some independent evidence showing that the very crime to which he confessed was actually committed." Gribble v. State, 808 S.W.2d 65, 71 (Tex. Crim. App. 1990). So, "[a]s

file:///C|/Users/Peter/Desktop/opinions/PDFs1/14621.html[8/20/2013 7:34:52 PM]

long as there is some evidence which renders the corpus delicti more probable than it would be without the evidence, we believe that the essential purposes of the rule have been served." Id. at 72 (citing Woolridge v. State, 653 S.W.2d 811, 816 (Tex. Crim. App. 1983). In this case, we hold there is sufficient corroborating evidence to establish that the crime Parker confessed to was actually committed. Accordingly, Parker's legal sufficiency challenges, asserted in his first and sixth points of error, must fail. Parker also maintains that the evidence presented at trial is factually insufficient. First, Parker argues that although he confessed to the crime, there is evidence to show that he fabricated his statement so that he could benefit from the promises made by Officer Scoggins and Agent Brigance. To support this contention, he relies on the testimony of Scoggins and Brigance, who both testified that they facilitated Parker's release from jail so that he could help them locate the gun and Thomas Debrow. Parker also points out that Brigance gave him money once he was released from jail. Further, Parker argues that without his confession, there is no physical evidence linking him to the crime because the record shows that the gun and the masks used in the attempted robbery were never located. In addition, Parker asserts that the evidence shows that Emerson could not positively identify his assailants. Finally, Parker contends that there is evidence to show that he had an alibi. In particular, Parker relies on the testimony from his work supervisor, Margaret Vaughn, and his girlfriend, Treeva Thomas. Vaughn testified that during August of 1999, Parker worked for "South Texas Community Living," a group home for the mentally ill. She told the jury that Parker was assigned to a particular home, and he was responsible for managing the care of those individuals for at least sixteen hours of the day. Further, because Parker worked such long hours, he was required to live at the group home. Also, to support the testimony by Vaughn, Parker presented Treeva Thomas as a witness. Thomas told the jury that on the night that the crime took place, she visited him at work. Thomas pointed out that she was sure that she was with Parker on that evening because she had marked this occasion on her personal calendar, which was submitted into evidence. After reviewing the entire record, we find that Parker's factual sufficiency challenge must fail. First, although no physical evidence was found by the police, Parker confessed that Debrow used a gun during the robbery and that they were both wearing masks to hide their identities. Parker also confessed that the clothes and masks were deliberately destroyed after the attempted robbery. Further, despite Parker's contention that the confession was coerced, we find that there is sufficient evidence to show that he gave his statement with his own free will. Scoggins and Brigance denied promising Parker that he would not be prosecuted for the crime if he cooperated because they had no authority to make such a bargain. In addition, these witnesses both told the jury that Parker was informed about his constitutional rights to an attorney and to remain silent and not incriminate himself. In fact, the evidence shows that Parker's actual confession lists the particular constitutional rights to which he is entitled under the law, he initialed each sentence that articulated these rights, and he signed the completed confession. In addition, to ensure that the jury could properly determine whether Parker's statement was properly given, the trial court added language in the jury charge regarding the voluntariness of Parker's confession. The language read as follows: You are instructed that unless you believe from the evidence beyond a reasonable doubt that the alleged confession or statement introduced into evidence was freely and voluntarily made by the defendant without compulsion or persuasion, or if you have reasonable doubt thereof, you shall not consider such an alleged statement or confession for any purpose nor any evidence obtained as a result thereof. You are instructed that before a promise will render a confession inadmissible, it must be shown that the promise induced the confession. You are further instructed that, in order to induce the confession, the promise must be positive, made or sanctioned by someone in authority, and of such an influential nature that a defendant would speak untruthfully in response thereto. Therefore, if you believe that a promise was made to the defendant, and that promise, if there was one, induced his confession, you shall not consider said confession.

file:///C|/Users/Peter/Desktop/opinions/PDFs1/14621.html[8/20/2013 7:34:52 PM]

Based on this evidence and the guidance provided by the instruction in the charge, the jury decided to believe that Parker confessed voluntarily and told the truth about his involvement in the robbery. Finally, we find that although Parker provided evidence of an alibi, there is also testimony to support the jury's finding that no one could confirm he was at work for the entire evening. Testimony from Margaret Vaughn shows that while Parker was supposed to be working on August 21,1999, she only randomly checked to verify whether he was at work. In fact, Vaughn told the jury that she had no personal knowledge of whether Parker was at work during the period of August 14, 1999 to August 21, 1999. Further, although Thomas testified that she was with Parker that evening, she also stated that she only came forward with that information a month before the trial. In addition, Thomas testified that she used a personal calendar on which she marked the date of her visit with Parker, as a basis for remembering the exact evening in question. However, the calendar, submitted as evidence at trial, did not have any details marked on it and had only a few circles marked around particular dates. The jury was certainly free to decide the weight and the credibility of Thomas' testimony and disbelieve her. Accordingly, after reviewing all of the evidence in the record, we cannot say that Parker's conviction was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Parker's factually sufficiency challenge, alleged in his seventh point of error, should be overruled. B. Enhancement of Parker's Sentence Parker has also lodged complaints regarding the enhancement of his sentence. More specifically, in his second point of error, Parker argues that because the State failed to notify him of its intent to seek an enhancement, his constitutional right to be "apprised of the accusations against him" was violated. Parker also asserts, in his fourth and fifth points of error, that the trial court erred because it enhanced his sentence with a state jail felony conviction that was not final. Parker contends further, in this third point of error, that there is insufficient evidence in the record to support an enhancement from a second degree felony to a first degree felony. Texas law provides that the purpose of an enhancement allegation is to allow the accused notice of the prior conviction on which the State relies. Brooks v. State, 957 S.W.2d 30, 33-34 (Tex. Crim. App. 1997); Coleman v. State, 577 S.W.2d 486, 488 (Tex. Crim. App. 1979). To provide proper notice, the State need not allege the enhancing offense in the indictment, though it is permissible and perhaps preferable to do so. Brooks, 957 S.W.2d at 34. In fact, it is sufficient for the State to plead the enhancement in a motion which is submitted subsequent to the indictment. Id. at 32. However, the State must prove beyond a reasonable doubt its enhancement case as it is alleged in the charging instrument. See Williams v. State, 899 S.W.2d 13, 14 (Tex. App.-San Antonio 1995, no writ.). In particular, the State must prove that the defendant is the same person who committed the prior offense and that the previous conviction was final before the commission of the primary offense. Johnson v. State, 784 S.W.2d 413, 414 (Tex. Crim. App. 1990); Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984); see Diremiggio v. State, 637 S.W.2d 926, 928 (Tex. Crim. App. [Panel Op.] 1982). In this case, the State requested an enhancement of Parker's sentence under Section 12.42 (b) of the Texas Penal Code, which states that "[i]f it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony." Tex. Penal Code Ann. 12.42(b) (Vernon 1994). To provide notice of its intent to seek this enhancement, the State sent Parker its "Notice of Intent to Seek Repeat Offender Status," on July 3, 2000. That document provides the following: NOW COMES Susan D. Reed, Criminal District Attorney for Bexar County, Texas ... hereby gives notice that the State of Texas will seek to prove the Repeat Offender status of Johnnie Parker... if and when the Defendant is found guilty in the above numbered cause. Specifically, the State will prove that: Before the Commission of the offense alleged in 2000 CR 3369... on or about the 12th day of February, 1998, in Cause No. 97JUV03749, in Bexar County, Texas, the Defendant was adjudicated by a juvenile court under Section 54.03, Texas Family Code, for delinquent conduct constituting a felony offense for which the Defendant was committed to the Texas Youth Commission under Section 54.05(f), for the felony offense of Escape; against the peace and dignity of the State.

file:///C|/Users/Peter/Desktop/opinions/PDFs1/14621.html[8/20/2013 7:34:52 PM]

Be aware that if the Defendant is convicted of the primary offense and is found to be a Repeat Offender, the Defendant would face a punishment range of a first degree felony. [See Tex. Penal Code Ann. 12.42 and Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997)]. Further, to support its evidentiary burden regarding the enhancement, the State presented several witnesses at the punishment phase of the trial. More specifically, the State introduced the testimony of Brent Houdmann, a juvenile probation officer with Bexar County Juvenile Probation. Houdmann stated that in July 1997 (cause number 97-JUV01553) Parker engaged in the delinquent conduct of public intoxication and was ordered to live in a residential treatment facility for eighteen months. Parker, however, attempted to escape from the facility and was found delinquent on that charge as well (cause number 97-JUV-03749). A few months later, Parker was found guilty for failure to comply with his probation conditions. Therefore, on February 9, 1998, Parker's probation was revoked, on his felony escape charge, and he was ordered to serve the rest of his sentence at the Texas Youth Commission. The State also introduced into evidence the "Judgments" and "Orders of Adjudication" for these violations (cause numbers 97JUV-01553 and 97- JUV-03749). We find, based on this evidence, that the State properly notified Parker of its intent to seek repeat offender status when it sent its notice on July 3, 2000. This document was sent approximately two months before trial and provides the particular offense it relied on for enhancement. However, even if the notice was, for some reason, inadequate there is nothing in the record to indicate that Parker objected to the form or timing of the notice. Parker, therefore, failed to preserve any error regarding the notification of the enhancement of his sentence. See Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Accordingly, Parker's second point of error is overruled. In addition, we find that the offense the trial court relied upon for enhancement was final. At the punishment phase, the State presented evidence that Parker was originally ordered to live in a state facility as a condition for probation. However, while he was living there, he attempted to escape, which was a felony charge. Despite his escape attempt, the State chose to allow Parker to remain in the facility to serve the duration of his probation. Parker, however, again violated his probation, and so on February 9, 1998, the court revoked his probation and sentenced him to confinement in the Texas Youth Commission (cause number 97-JUV-03749). It is well-settled that although a probated sentence is not final, it becomes so when the probation is revoked. Ex Parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). Here, Parker's probation was revoked on March 9, 1988, and his sentence became final at that time. Parker's contention that the prior conviction used for the enhancement of his sentence was not final, therefore, must fail. Accordingly, Parker's fourth point of error is overruled. In addition, we find that there is no merit to Parker's argument that the court relied on a state jail felony to enhance his sentence. It is clear that to enhance Parker's sentence the State relied on his conviction for escaping from the correctional facility, under cause number 99-JUV-03479. Under Texas Law, escaping from a correctional facility is a felony offense under section 38.06 of the penal code. Tex. Penal Code Ann. 38.06 (Vernon 1994). That section provides specifically as follows: (a) A person commits an offense if he escapes from custody when he is: (1) under arrest for, charged with, or convicted of an offense; or (2) in custody pursuant to a lawful order of a court. *** (c) An offense under this section is a felony of the third degree if the actor: (1) is under arrest for, charged with, or convicted of a felony; (2) is confined in a secure correctional facility; or (3) is committed to a secure correctional facility, as defined by Section 51.02, Family Code, other than a halfway house, operated by or under contract with the Texas Youth Commission.

file:///C|/Users/Peter/Desktop/opinions/PDFs1/14621.html[8/20/2013 7:34:52 PM]

(d) An offense under this section is a felony of the second degree if the actor to effect his escape causes bodily injury. *** Tex. Penal Code Ann. 38.06 (Vernon 1994). Although Parker argues that the trial court relied on the state jail felony, in cause number 99-CR-5063W, to enhance his sentence, there is nothing in the record to indicate that the trial court relied on that offense for the enhancement of his sentence. We find, therefore, that Parker's fifth point of error should be overruled. Finally, we find that based on the evidence the State presented at the punishment phase, particularly the testimony of Brent Houdmann, and the accompanying exhibits, there is legally and factually sufficient evidence in the record to support the enhancement. Therefore, Parker's third point of error is overruled. Conclusion In sum, we find that the record contains legally and factually sufficient evidence to support Parker's conviction of conspiracy to commit aggravated robbery. Further, we find that the trial court made no error when it enhanced his sentence from a second degree felony to a first degree felony. Accordingly, we affirm the trial court's judgment. Sandee Bryan Marion, Justice DO NOT PUBLISH

file:///C|/Users/Peter/Desktop/opinions/PDFs1/14621.html[8/20/2013 7:34:52 PM]

Download 14621.pdf