*1 There is no evidence to support the im-
plied findings of the trial corpo- court as to appellants
rate Natural Management Gas
Company or Alpha Twenty-One Corpora-
tion nor as to individual appellants Richard
Phillips, Trustee, Vesenmeir, Leo Jr. and Yarborough.
W.B. I would reverse and re-
mand with instructions transfer to their
respective counties of residence. I dissent
to the disposition made by majority. Antonio, Chapman,
David San for lant. White, Reed,
Bill Dist. Atty., Susan D. Alan An- Battaglia, Attys., Asst. Dist. San tonio, appellee. for Anthony MINOR, Michael Appellant, C.J., CADENA, Before and CANTU TIJERINA, JJ. Texas, STATE Appellee. No. 04-81-00398-CR. OPINION
Court of Appeals Texas, TIJERINA, Justice. San Antonio. This is an from a conviction for
May 1983. aggravated deadly weapon. assault with a appellant charged punishmеnt eight years’ assessed his confinement in the Texas Department companion Corrections. In a case tried jointly, appellant punish- was also assessed ment for the offense of at thirty- murder years’ five confinement in the De- Texas partment of Corrections. The trial court cumulatively ordered the sentences to run pursuant art. Tex.Code Crim.Proc.Ann. (Vеrnon 1979). 42.08 The first of error contends that order the sentences cumulating denied due as a process of law following: result of the Appellant given A. was not written no-
tice of the state’s motion to stack intention to sentence or of the court’s cumulating consider this sentence with that in cause number 81-CR— notice Appellant given prior B. was not the court of the evidence on which would its cumulation order. base *2 Appellant given begin C. was not the when the sentence in opportu- and be
nity present to heard and to evi- has ceased to preceding the conviction dence on the issue of cumulation. shall run operate, punishment or that the cases, other concurrently the case D. not Appellant given opportu- the and be ac- and sentence execution shall nity to confront and cross-examine cordingly. [Emphasis ours.] the him on is- witnesses the sue of cumulation. State, 465 In Hammond v. provided (Tex.Cr.App.1971), E. Appellant was not with a sup- written statement 42.08 su of reasons held that article the porting of cumula- of his pra, deprive appellant order does an not tion. process, and that right of due constitutional in is constitutional. Later John the statute F. penalized ap- The cumulation order (Tex.Cr. State, 492 son v. pellant’s exercise of to right his file the court reiterated the App.1978), provid- motion for trial new without case, supra, saying, “we the Hammond ing objective information the that the statute could be reject claim identifiable conduct on which the are if certain standards cumulation order was based. forth the court in the exercise guide set to The found jury appellant guilty aggra- ‘right’ is no to a of its discretion.” “There deadly weapon vated assault with a sentence; punishment concurrent whether person Aguilar of Fred and the same is cumulatively run concurrеntly will companion him in jury judge.” the discretion of within case, jointly, shooting tried of murder in the State, (Tex.Cr. v. Carney killing and De Los Jesse Santos. Both argue, nor Appellant does not App.1978). simultaneous, offenses arising were out of of discre reflect an abuse does record necessary the same occurrence. brief Hence, in judge. view the trial facts indicate that the offense in occurred Johnson, Hammond, rulings Car in 31, 1980, ap- San Antonio on December appellant supra, we conclude ney, 5:00 proximately p.m. city Via bus The trial process not denied due law. parked at Travis Navarro It Streets. its properly exercised discretion appears appellant and his friends had 42.08, supra, to cumulate sen аrticle fighting been with the victim and some of number one is tences. Ground error vicinity his friends at and in the of Travis overruled. A Via city stopped pas- Park. bus to load sengers fight and all in participants appellant two In of error number ground boarded bus fighting and continued to insufficient the evidence was asserts victim, whereupon appellant shot the Fred the complаinant. shot show Aguilar. State, Banks v. 510 S.W.2d In (Tex.Cr.App.1974), the Court discussed 42.08, Tex.Code Crim.Proc.Ann. art. su- of insuffi- for review standard appropriate pra, provides as follows: saying: questions, ciency When same defendant has been judge to province [I]t convicted in two or more and the credibility the witnesses punishment assessed in case con- each testimony and it given be their tо in an operated finement institution conflicts or reconcile may resolve Department jail or the Corrections such accepting rejecting testimony, for a of imprisonment, term In review- it sees fit. portions thereof as pronounced sentence shall be in each case in the manner same as if there view the conviction, we must convictions,
been but one except that most favorable light evidence in the court, the discretion so, verdict will doing In the verdict. subsequent second and any sustained if there punishment either be that the shall be believed, if shows the In Combs Court of Criminal accused. held that a Court of had no [Citations omitted] reverse conviction on accord with the Banks supra, is is so the over- Fernandez v. (Tex.Cr. S.W.2d 771 whelming preponderance of the evidence as App.1978). More recently in Combs unjust wrong. clearly This hold- *3 State, 643 (Tex.Cr.App. S.W.2d 716 misinterpretation is on a clear of 1982), the Court discussed the difference V, (amended Tex.Const. art. 6 ef- § between sufficiency of the points (hereinafter September 1981) fective re- civil saying: cases and criminal 6), as рrovi- ferred to the constitutional § Sufficiency of the evidence as determined defining jurisdiction sion the of the Court question this Court is a of law. It is of Appeals. irrelevant we whether as a court believe amendment, to the Prior 1980 6 was § evidence, the believe or that defense evi- applicable only Ap- to the of Courts Civil dence ‘outweighs’ the State’s evidence. peals jurisdiction which exercised appellate If there is any evidence that establishes only perti- in civil eases. At that time the guilt beyond doubt, a reasonable and if nent 6 as provisions were follows: § evidence, trier of fact believes that of Civil shall have Said Court we are position not in a reverse jurisdiction appellate cоextensive with on of the evidence districts, of their respective limits grounds. shall civil which extend to all cases of the instant the record shows County which District Courts or direct testimony Eugene witness Mí- original jurisdic- have appellate Courts reles, who testified he saw appellant shoot tion, such and regula- under restrictions Aguilar. Fred driver, The bus Dom David may prescribed by be lаw. tions as Pro- inguez, identified as per vided, that decision said courts son with a pistol. Appellant in his testified shall conclusive on questions be all fact own behalf and admitted that of his one brought appeal before them on error. gave friends the pistol him and that he [Emphasis added.] fired two during shots altercation designed The 1980 amendment was Via Thus, bus. having viewed the evidеnce jurisdiction expand the of the intermediate in the light most favorable to the appellate courts to criminal cases. include verdict, we conclude that there suffi accomplished by simple This was dele- cient appellant’s convic jurisdic- word “civil” of the from tion. Ground of error number two is over portion tion-granting so that ruled. provision reads: constitutional now The judgment is affirmed. Said Court of have shall jurisdiction late coextensive the lim- CANTU, J., concurs in result. thejr districts, respective its of which CADENA, Justice, Chief concurring. shall extend to all of which the cases County Courts or have District Courts I agree that the conviction be af- should original appellate jurisdiction, under firmed, but I would not base such affirm- such restrictions rеgulations State, ance on Combs v. 643 709 Provided, prescribed by law. (Tex.Cr.App.1982), pointing without out of said be conclusive decision courts shall that appellant’s complaint presents, questions brought on before all of fact decisions of Criminal Appeals, them on or error. only the contention that there evi- is “no dence” and that question portion proviso critical 6§ whether against is makes the decision of a Court of which weight of the evidence fact questions “conclusive on all is not before us. or error”. brought before” “on appeal amendment,
Prior to the consist- out in White v. ent holding making was that the provision (Tex.Cr.App.1979), fact conclusive the decision the intermediate jurisdiction lacks apрellate “questions courts on of fact” vest- is verdict complaints consider ed in such courts to decide weight question” preponder- “fact of Civil “as would of the ance evidence and to reverse peculiar to “a somewhat Appeals”, due the trial court if critical to Courts provision applicable findings fact on which the can be dоubt Appeals”. There Civil prepon- based are provision” “peculiar constitutional derance evidence. This is made clear which makes portion was that Estate, King’s In re Tex. appellate of the intermediate decision (1951), recognizes which Combs of fact conclusive. *4 “leading case on As the point”. this Combs, “it is Davis assures us Judge In Supreme King: Court said in is, of ‘questions fact’ phrase clear that power of decide the fact to [This 5, 6, legal term in context of Art. Sec. question of and of preponderance weight and ‘questions of signifying of art meaning given evidence] ”. [Empha- of evidence’ ‘all phrase questions of fact 715. sis 643 at added.] brought before them on error’
of
...
for
interpretation,
But
that
§
Ap-
the Houston Court of
opinion
of
‘questions
there would
for
be no
fact’
or-
be considered in
peals in Combs should
Appeals
the Court of
to determine
Civil
meaning of the
fully the
der to understand
[Emphasis
....
added.]
Appeals
of Criminal
opinion of the Court
244
at
Houston
reversing
662.
of the Houston Court
opinion
Court. The
Meanwhile,
Ap
the Court of Criminal
(1982).
in 631
534
reported
peals
held
it had nо
consistently
power
that
and, therefore,
to consider
of fact
and
conviction
remand-
reversing the
could not entertain contentions
trial,
new
the Houston
the ease for a
contrary
to the
finding
(1)
of the
confession
defend-
Court held
of the evidence.
into
have been admitted
ant should not
an inter
But these decisions did not involve
com-
it was not taken in
because
pretation
provision
since that
did
Tex.Code Crim.
with article 38.22
pliance
not
jurisdiction
to define the
purport
Constitu-
Proc.Ann. and the United States
conclusion that
the Court
that court. The
in-
knowingly,
defendant
not
tion and
jurisdic
had “no fact
his
waived
voluntarily
telligently
and,
Appeals”
tion as do the
of Civil
Court
to
prosecution failed
(2)
rights;
therefore, had
“unfind” a fact
power
alleged
in
prove the cause of death
great weight
prepon
pass
indictment.
ex
derance of the evidence was based “on
(1) would,
in some
at least
Holding
amination of the constitutional
statuto
and a
a reversal
require
jurisdiction of
ry
relating to the
provisions
if,
trial,
as the
even
for a new
remand
Martin v.
Appeals”.
of Criminal
Cоurt
said,
Hous-
(Tex.Cr.App.
State, 605 S.W.2d
law, the
“held,
as matter
ton Court
time,
1980). During this
the Court Crim
in-
knowingly,
incapable
defendant was
recognized that the dif
Appeals clearly
inal
waiving his Mi-
voluntarily
telligently,
in the
Crimi
ference
Irre-
at
643 S.W.2d
rights”.
randa
nal
and the Court of Civil
concerning the ad-
holding
spective of the
language
in
6 of
presence
was due
holding
confession, the
missibility
defining
not
in
provisions
the cause
prove
concerning failure
Ap
jurisdiction
the Court of Criminal
a remand
the basis
could not form
pointed
death
peals.
Presiding Judge
As
Onion
for a new trial if such holding was based on
But
the conclusion that
the Houston
the theory that there was no
held that there was “no evidence” of
the cause of death
alleged
was that
indulged
cannot be
the cause of death
States,
indictment. Under Burks v. United
not
view of the fact that the Houston Court
1,98
2141,57
(1978)
U.S.
S.Ct.
L.Ed.2d
the conviction but remanded
only reversed
and Greene Massey,
U.S.
S.Ct.
already point-
the case for a new
As
trial.
2151,
recognizes 6, signifies questions used in fact” as
concerning weight appears that Combs fails the Houston Court that
give the decision of clearly which is
finality and conclusiveness by the
mandated 6. The conclusion convic-
Court of some evi- supported in Combs was