Sexton v. State

• Decision Date: 15 November 2000
• Citation: 51 S.W.3d 604
• Parties: (Tex.App.-Tyler 2000) PATRICIA SEXTON, APPELLANT v. THE STATE OF TEXAS, APPELLEE NO. 12-99-00173-CR
• Court: Texas Court of Appeals

Page 604

51 S.W.3d 604 (Tex.App.-Tyler 2000)

PATRICIA SEXTON, APPELLANT v. THE STATE OF TEXAS, APPELLEE NO. 12-99-00173-CR

COURT OF APPEALS OF TEXAS, TYLER

November 15, 2000.

Rehearing Overruled Dec. 19, 2000.

Discretionary Review Refused May 30, 2001.

APPEAL FROM THE SECOND JUDICIAL DISTRICT COURT OF CHEROKEE COUNTY, TEXAS

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consisted of Davis, C.J., Hadden, J., and Worthen, J.

WORTHEN, Justice

A jury convicted Patricia Sexton ("Appellant") of murdering her husband, and it assessed her punishment at life imprisonment. On appeal, Appellant presents ten issues for our consideration. We affirm.

BACKGROUND

Appellant and Bobby Sexton ("Sexton") were married. Appellant began having an affair with Michael Fielding ("Fielding") in November of 1997. In November or December of 1997, Sexton filed for divorce from Appellant. During the divorce proceedings, the court gave custody of their children to Sexton. In January of 1998, Appellant attempted to reconcile with Sexton. Fielding testified that Appellant told him the only reason she went back to Sexton was to get their kids. He further testified that on several occasions in early February of 1998, Appellant asked him if he had any cocaine. Fielding testified that Appellant wanted to use the cocaine to get Sexton arrested so she could obtain custody of their children. Then, on February 11, 1998, Appellant told Fielding that she wanted Sexton dead because she was tired of him beating on her and raping her. Fielding asked Appellant why she did not leave Sexton. She said that she could not because he would get custody of their kids. Later that day, Appellant asked Fielding and Willie Wright ("Wright") if they knew a hit man. Fielding said no, but Wright said that he would kill Sexton for $2,500.00. However, no agreement was reached at that point. The next day, Appellant asked Fielding to kill Sexton. He refused. Fielding testified that during the next few days, Appellant repeatedly asked him to kill Sexton. Finally, he agreed. Appellant told Fielding that she wanted it done on February 20. Thereafter, Appellant called Fielding several times to confirm that he would do it. Also, she brought Fielding surgical gloves to use when he killed Sexton. That night, Appellant and Sexton brought pizza to Fielding and Wright at a shop where Fielding worked as a mechanic. Again, Appellant asked Fielding if he was going to kill Sexton. Apparently, Appellant and Sexton returned to Appellant's house after delivering the pizza. Around 10:30 p.m., Wright gave Fielding a shotgun and told him that he would go get Sexton. Fielding waited at the bottom of a hill outside the shop. After some time, Wright returned with Sexton. Fielding shot Sexton in the chest. After the shooting, Appellant called Fielding and asked whether it was over. Fielding said yes and asked her to bring Sexton's Suburban. Appellant told Fielding that she could not bring the Suburban because Sexton had the keys. Fielding found the keys in Sexton's right front pocket and gave them to Appellant when she arrived at the scene of the shooting. This set of keys consisted of eight or ten keys with a "little 'ole emerald thing on it." Appellant left and returned to the scene driving Sexton's Suburban. Fielding testified that when Appellant returned with the Suburban, he observed only a single key in the ignition, not the set of keys he had taken off Sexton's body earlier that night. Fielding and Wright loaded Sexton's body into the back of the Suburban and dumped the body into the Neches river. Eventually, they abandoned the Suburban near Dialville, Texas. On March 25, 1998, Wright led Mike Daniel ("Daniel"), Chief Investigator of the Cherokee County Sheriff's Department, to Sexton's body.

Appellant was charged with capital murder by an indictment alleging that she intentionally or knowingly caused the death of Sexton "by, shooting him with a firearm, for remuneration or the promise of remuneration from Bobby Sexton, to wit: proceeds from payments, claims, awards, or benefits due or expected by Patricia Sexton upon the death of Bobby Sexton." Remuneration or the promise of remuneration was the aggravating factor causing the offense to rise to capital murder. Tex. Pen. Code Ann. § 19.03(a)(3) (Vernon 1994). The jury acquitted Appellant of capital murder, but convicted her of the lesser included offense of murder under the law of parties.

MOTION FOR NEW TRIAL

In issue one, Appellant contends that the trial court erred by failing to hold an evidentiary hearing on her motion for new trial. We disagree. A defendant does not have an absolute right to a hearing on a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). To obtain a hearing on a motion for new trial, a defendant must present the motion within ten days of filing, unless the trial court in its discretion permits it to be presented and heard within seventy-five days from the date when the court imposes sentence in open court. Tex. R. App. P. 21.6; Musgrove v. State, 960 S.W.2d 74, 76 (Tex. Crim. App. 1998); Davis v. State, 7 S.W.3d 695, 698 (Tex. App. Houston [1st Dist.] 1999, no pet.). The term "present" means "the record must show the movant for a new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court." Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). Examples of "presentment" include obtaining the trial court's ruling on the motion for new trial, the judge's signature or notation on a proposed order, or a hearing date on the docket. Id. Further, a trial court must rule on a motion for new trial within seventy-five days after the defendant was sentenced. Tex. R. App. P. 21.8(a). If the court does not rule within this time, the motion is deemed overruled by operation of law at the expiration of the seventy-five-day period. Tex. R. App. P. 21.8(c). Once the seventy-five days expires, a defendant may not complain of the trial court's failure to grant a new trial because the trial court has no authority to do so. Baker v. State 956 S.W.2d 19, 25 (Tex. Crim. App. 1997). Any action on a motion for new trial after this time is a nullity. State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987); Meek v. State, 628 S.W.2d 543, 547 (Tex. Crim. App. 1982). It is the defendant's burden to ensure that the hearing is set on a date within the trial court's jurisdiction. Baker, 956 S.W.2d at 25; Crowell v. State, 949 S.W.2d 37, 38 (Tex. App. San Antonio 1997, no pet.).

Here, Appellant's sentence was imposed on April 28, 1999. The seventy-fifth day was July 12, 1999. Her motion for new trial was timely filed on May 28, 1999. The motion does not contain a request for a hearing and there is no evidence in the record that Appellant presented the motion to the trial court within ten days of filing the motion. On July 13, 1999, the clerk file-marked Appellant's "supplemental" motion for new trial, which does contain a request for a hearing. However, merely filing a motion for new trial alone does not satisfy the presentment requirement. Carranza, 960 S.W.2d at 78. Further, the seventy-five-day period had already expired. Although more than seventy-five days had passed since sentence was imposed,¹ the trial court held a hearing on Appellant's motion on August 27, 1999. At the hearing, the trial court announced that because seventy-five days had elapsed,² Appellant's motion had been overruled as a matter of law of law. Tex. R. App. P. 21.8. Therefore, the trial court determined that it did not have jurisdiction to conduct a hearing.

The record demonstrates that Appellant failed to ensure that her motion was presented and heard within the time prescribed by the Texas Rules of Appellate Procedure. Thus, the trial court correctly concluded that Appellant's motion had been overruled by operation of law and that it did not have jurisdiction to hear evidence on the motion. Carranza, 960 S.W.2d at 79 (trial court did not err in failing to conduct a hearing on a motion for new trial where Appellant failed to present the motion to the trial court); Baker, 956 S.W.2d at 25 (appellant failed to preserve error on complaint that trial court failed to conduct a timely hearing where he failed to object to the untimely setting). Accordingly, issue one is overruled.³

CORROBORATION OF FIELDING'S TESTIMONY

In issues two and three, Appellant challenges the legal and factual sufficiency of the evidence to corroborate Fielding's testimony. The jury was instructed that Fielding was an accomplice. A conviction cannot be had upon the testimony of an accomplice witness unless corroborated by other evidence tending to connect the accused to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). Contrary to Appellant's assertion, we do not review the legal and factual sufficiency of corroborative evidence. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999). Rather, to determine whether an accomplice's testimony is sufficiently corroborated, we eliminate from consideration the testimony of the accomplice witness and examine the remaining evidence to ascertain whether there is evidence which tends to connect the accused to the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997); Cockrum v. State, 758 S.W.2d 577, 581 (Tex. Crim. App. 1988). The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses may be sufficient if it tends to connect the accused to the offense. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). It is not necessary that the corroborative evidence directly link the accused to the offense or be sufficient in itself to establish guilt beyond a reasonable doubt. Id.; see also Hernandez, 939 S.W.2d at 176. No precise rule...