Simmons v. State, No. 07-07-0282-CR (Tex. App. 7/30/2009)
| Decision Date | 30 July 2009 |
| Docket Number | No. 07-07-0282-CR.,07-07-0282-CR. |
| Parties | DANIEL SIMMONS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 227th District Court of Bexar County, No. 2006CR0572, Honorable Philip A. Kazen, Jr., Judge.
Panel A: Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant Daniel Simmons appeals from his conviction for burglary of a habitation and the resulting sentence of twenty-five years of confinement in the Institutional Division of the Texas Department of Criminal Justice. Through six points of error, appellant contends the evidence was legally and factually insufficient to support his conviction and asserts this Court lacks jurisdiction to hear his appeal. We affirm.
Appellant was indicted for burglary of a habitation with intent to commit an assault.1 The indictment also included two enhancement paragraphs setting forth appellant's two prior felony convictions.2 Following appellant's plea of not guilty, the case was tried to a jury.
The home appellant entered was that of James "Elmo" Wilson. Paul Gentry gave Wilson a ride to a lounge where they shot pool. Gentry took Wilson home along with two other individuals, Joyce Walls and appellant. When they arrived, Wilson got out of the car and went to his truck. Appellant got out of the car and hit Wilson, causing him to fall to the ground.
Gentry got out of the car and helped Wilson to his apartment. Gentry told Wilson to close his door and Wilson told him he would close the screen door because it was hot. In the meantime, Walls helped appellant to his apartment in the same complex and returned to the car. As Gentry pulled away, he saw appellant coming across the parking lot so, a few minutes later, he called Wilson to check on him. Wilson told Gentry that appellant knocked him down again. Gentry and Walls returned to Wilson's apartment and saw appellant walking away from the apartment, leaning on a wall. By the time they walked past him, appellant had fallen down. Later testimony indicated appellant had been shot by Wilson.3
Wilson testified he was a sixty-eight-year-old retiree, disabled from a stroke that left him with limited mobility in his left arm and leg. He said he knew appellant from his former workplace and considered him a friend. Wilson testified he thought he locked the door to his apartment after Gentry left him. He went to his bedroom to prepare to go to sleep and heard his front door open. He grabbed his pistol and placed it in his back pocket. He went into the living room as appellant pulled open the door. Appellant "locked [Wilson] up against the couch," hit him, and the two wrestled against the door frame. Wilson grabbed the gun and pulled the trigger to protect himself. The gun went off. Wilson testified he did not know a bullet hit appellant until he told Wilson he was shot.
Appellant recalled Wilson to clarify information he provided in a taped statement to a private investigator. He highlighted the statement by Wilson that after he shot appellant, the two wrestled for several minutes. Appellant also called Joyce Walls, the other passenger in Gentry's car. She testified appellant and Wilson had a verbal disagreement that escalated quickly. She testified she saw Wilson swing his cane toward appellant when the men got out of the car. Appellant also highlighted the absence of evidence presented at trial to show forced entry into Wilson's apartment.
Following presentation of the evidence, the jury found appellant guilty of the offense as charged in the indictment. Punishment was assessed against appellant at twenty-five years confinement. This appeal followed.
Appellant presents six points of error for our review. In his first two points, appellant contends the evidence was legally and factually insufficient to support his conviction. In appellant's remaining four points of error, he argues that this Court lacks jurisdiction to consider his appeal. We begin with appellant's challenge to our jurisdiction.
Appellant was convicted by the 227th Judicial District Court of Bexar County. He timely filed notice of appeal to the Fourth Court of Appeals, whose district includes Bexar County. See Tex. Gov't Code Ann. § 22.201(e) (Vernon 2004 & Supp. 2007). The appeal later was transferred to this court by the Supreme Court of Texas under the authority given it in chapter 73 of the Government Code.4 Tex. Gov't Code Ann. § 73.001, et seq. (Vernon 2005).5 Appellant's third, fourth, fifth and sixth issues challenge the validity of the transfer. He contends the transfer was void because it violated provisions of both the United States and Texas Constitutions, and did not give this court jurisdiction over his appeal. We will overrule the issues.
The record reflects that appellant was notified of the transfer of his appeal to this court. Our Supreme Court has set out the proper procedure for requesting transfer of an appeal from one court of appeals to another. Miles v. Ford Motor Co., 914 S.W.2d 135, 137 n.2 (Tex. 1995). We agree with our sister court in El Paso that complaints about the transfer of cases by the Supreme Court are properly raised by the initiation of the procedure outlined in Miles. See Arocha v. State, No. 08-07-00108-CR, 2009 WL 1883733 () (mem. op., not designated for publication) (addressing challenge to its jurisdiction over transferred case). We see no reason why that procedure was unavailable to appellant to present his objections to the Supreme Court's order transferring his appeal, and thus conclude his third, fourth, fifth and sixth points of error have not been preserved for our review. Tex. R. App. P. 33.1.6
Even if we are mistaken about the necessity for appellant to pursue the procedure outlined in Miles, however, we could not sustain his challenge to our jurisdiction. Through his fourth, fifth and sixth points of error, appellant argues the Supreme Court's order transferring his appeal violated the Texas Constitution. His fourth point argues chapter 73 of the Government Code conflicts with provisions of Article 5 of our state's constitution; his fifth point argues the transfer violated the Due Course of Law provision of Article 1, Section 19; and his sixth point contends the statutory provisions for transfer of cases among courts of appeals are void exercises of legislative authority over the judiciary contrary to the separation of powers set out in Article 2, Section 1.
Article 5, Section 6 of the Texas Constitution provides for courts of appeals districts, and gives the courts of appeals appellate jurisdiction "co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." The same section later provides that the courts of appeals "shall have such other jurisdiction, original and appellate, as may be prescribed by law." Tex. Const. art. V, § 6. In Bond v. Carter, 72 S.W. 1059 (1903), the Texas Supreme Court cited the latter provision in rejecting a challenge to the constitutionality of an order transferring an appeal from one court of civil appeals to another under an 1895 statute. See also Guzman v. State, No. 03-02-00040-CR, 2002 WL 1988376 (Tex.App.-Austin August 30, 2002, no pet.) (mem. op., not designated for publication) ("The Texas Constitution and statutes provide for the transfer of appeals from one court of appeals to another"); Witherspoon v. Davis, 163 S.W. 700, 702 (Tex.Civ.App.-Austin 1914, orig. proceeding) (citing Bond, challenge to court's power to enforce judgment in transferred case). Bond provides a sufficient answer to appellant's contentions the transfer of his appeal to this court violated the Texas Constitution.
By his third issue, appellant contends the provisions of Texas law permitting the transfer of appeals from one intermediate appellate court to another violate the Equal Protection Clause of the Fourteenth Amendment because the transfer interferes with the right of voters to elect the judiciary.7 Observing that voters in the Fourth District elect justices to the Fourth Court of Appeals and transfer of his appeal to the Seventh Court of Appeals means it will be decided instead by justices elected by voters living in the Seventh District, appellant reasons that transfer of appeals of cases arising in the Fourth District deprives voters of the right to elect the appellate judges who will decide cases arising in their district. Appellant does not demonstrate, however, that he has standing to litigate the Equal Protection rights of Fourth District voters. See, e.g., Gray v. Sanders, 372 U.S. 368, 375, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) (). Moreover, he presents no persuasive argument that the transfer of an appeal from one Texas court of appeals to another effectively impinges on those rights.
We overrule appellant's third, fourth, fifth and sixth points of error.
Appellant's first two points of error challenge the sufficiency of the evidence to support his conviction. In reviewing issues of legal sufficiency, an appellate court views the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences drawn from the evidence, a rational jury could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If, given all of the evidence, a rational jury would necessarily entertain a reasonable doubt...
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