                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00232-CR
         ______________________________


          ELVIS RAY WALKER, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the Fifth Judicial District Court
                 Cass County, Texas
            Trial Court No. 2008F00182




     Before Morriss, C.J., Carter and Moseley, JJ.
          Opinion by Chief Justice Morriss
                                             OPINION

        Elvis Ray Walker's Cass County jury trial for bail jumping1 centered around his claim that

he did not get notice of his arraignment hearing on an earlier charge of burglary and, therefore, failed

to appear for that hearing. Convicted on the bail-jumping charge and sentenced to five years'

confinement and a $5,000.00 fine, Walker urges on appeal, in four points of error,2 that the evidence

is legally and factually insufficient to show that his failure to appear was intentional or knowing and

that the evidence is legally and factually insufficient to support the jury's rejection of his defense of

reasonable excuse, that is, lack of notice. Because we find the evidence legally and factually

sufficient to support both challenged aspects of the verdict, we affirm the judgment of the trial court.

        A person commits the crime of bail jumping if he or she has been "lawfully released from

custody, with or without bail, on condition that he subsequently appear" and then "intentionally or

knowingly fails to appear in accordance with the terms of his release." TEX . PENAL CODE ANN .

§ 38.10(a) (Vernon 2003). "It is a defense to prosecution" for bail jumping "that the actor had a


        1
            The grand jury's indictment alleged Walker

        did then and there after being lawfully released from custody on pending
        felony . . . charge on condition that he subsequently appear in court, intentionally or
        knowingly fail to appear in accordance with the terms of his release, to wit:
        [photographic image of Walker's bail bond for his burglary charge] against the peace
        and dignity of the state.
        2
         In his first and second points of error, Walker contends the evidence is legally and factually
insufficient to support the conclusion that he intentionally or knowingly failed to appear. Walker's
third and fourth points of error urge legal and factual insufficiency of the evidence relative to the
rejection of his reasonable-excuse defense, which was based on his alleged lack of notice.

                                                   2
reasonable excuse for his failure to appear in accordance with the terms of his release." TEX . PENAL

CODE ANN . § 38.10(c) (Vernon 2003). If the underlying offense for which the accused failed to

appear is classified as any degree of felony offense, then this new charge is a third-degree felony.

TEX . PENAL CODE ANN . § 38.10(f) (Vernon 2003). Otherwise, the new charge is a misdemeanor

punishable by a fine only. TEX . PENAL CODE ANN . § 38.10(e) (Vernon 2003). Bail jumping is a

result-of-conduct oriented offense because the crime is defined in terms of one's objective to produce

a specific result.   See Roberts v. State, 273 S.W.3d 322, 328–29 (Tex. Crim. App. 2008)

(summarizing methodology used to classify crime as conduct oriented); Gonzales v. State, 270

S.W.3d 282, 288 (Tex. App.—Amarillo 2008, pet. ref'd) (same). The mens rea element of the

offense modifies the conduct element of the offense, so it is the accused's conduct that must be done

with the requisite "intentional" or "knowing" culpable mental state. Cf. Landrian v. State, 268

S.W.3d 532, 537 (Tex. Crim. App. 2008) (discussing aggravated assault as result-oriented offense

and noting, "The precise act or nature of conduct in this result-oriented offense is inconsequential.

'What matters is that the conduct (whatever it may be) is done with the required culpability to effect

the result the Legislature has specified.'").

Standards of Review

        "The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt." Young v. State,

242 S.W.3d 192, 197 (Tex. App.—Tyler 2007, no pet.) (referencing Jackson v. Virginia, 443 U.S.



                                                  3
307, 320 (1979); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)). In examining

evidentiary sufficiency, we examine the evidence in the light most favorable to the verdict. Jackson,

443 U.S. at 320; Johnson, 871 S.W.2d at 186. "A successful legal sufficiency challenge will result

in rendition of an acquittal by the reviewing court." Young, 242 S.W.3d at 197 (referencing Tibbs

v. Florida, 457 U.S. 31, 41–42 (1982)). Legal sufficiency is measured "by the elements of the

offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d

234, 239–40 (Tex. Crim. App. 1997).3 In reviewing the legal sufficiency of evidence to support

rejection of a defense, we examine all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of the offense

and also could have found against the defendant on the self-defense issue beyond a reasonable doubt.

Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

        A factual sufficiency review requires us to assess all the evidence adduced at trial in a neutral

light. Grotti, 273 S.W.3d at 280 (citing Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006)). We must then determine whether the jury was rationally justified in finding the accused

guilty beyond a reasonable doubt. Id. (citing Watson, 204 S.W.3d at 426). "Evidence can be

factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak



        3
          The hypothetically correct jury charge "sets out the law, is authorized by the indictment, does
not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was tried." Malik,
953 S.W.3d at 240; see also Reese v. State, 273 S.W.3d 344, 346 (Tex. App.—Texarkana 2008, no
pet.) (citing Grotti v. State, 273 S.W.3d 273, 280–81 (Tex. Crim. App. 2008)).

                                                   4
that the verdict seems clearly wrong and manifestly unjust; and (2) when the supporting evidence

is outweighed by the great weight and preponderance of the contrary evidence so as to render the

verdict clearly wrong and manifestly unjust." Id. (citing Roberts v. State, 220 S.W.3d 521, 524 (Tex.

Crim. App. 2008); Watson, 204 S.W.3d at 414–15; Johnson, 23 S.W.3d at 11; and referencing

Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007)). To hold that the evidence is

factually insufficient, we must be able to state objectively that the verdict is against the great weight

and preponderance of the evidence. Id.; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417.

Like a legal sufficiency review, a factual sufficiency review requires that the evidence be measured

under the framework of the hypothetically correct jury charge. Id. at 280–81; Wooley v. State, 273

S.W.3d 260, 261 (Tex. Crim. App. 2008). A factual sufficiency challenge to a verdict implicitly

rejecting a defense requires us to review all of the evidence in a neutral light and ask whether the

State's evidence, if taken alone, is too weak to support the finding and whether the proof of guilt,

although adequate if taken alone, is against the great weight and preponderance of the evidence.

Zuliani v. State, 97 S.W.3d 589, 594–95 (Tex. Crim. App. 2003). Evidence that supports a verdict

is not rendered insufficient merely because the defendant presented a different version of events or

conflicting evidence. Anderson v. State, 701 S.W.2d 868 (Tex. Crim. App. 1985).

        The hypothetically correct jury charge applicable in this bail-jumping case would require

proof that Walker (1) had been lawfully released from custody with or without bail (2) on a felony

charge (3) on the condition that he subsequently appear in court on that charge, and Walker thereafter



                                                   5
(4) intentionally or knowingly (5) failed to appear in court in accordance with the terms of that

release. See TEX . PENAL CODE ANN . § 38.10(a), (f).4 If, however, the jury affirmatively found that

Walker had a reasonable excuse for not appearing in court in accordance with the terms of his

release, then the jury would be required to acquit Walker. TEX . PENAL CODE ANN . § 38.10(c). The

only elements of proof in issue here are the intentional or knowing aspect of the failure to appear and

reasonable-excuse defense.

The Evidence

       Walker was released from jail February 26, 2007, on a $5,000.00 bail bond under a pending

charge of burglary. The bond was posted by Pam Huddleston, the owner of Tri-State Bail Bonds.

Walker's bail bond did not list his next court date. The Cass County District Attorney's Office

subsequently mailed to Walker and his bondsman the notices of Walker's arraignment setting, but

Walker failed to appear.

       Huddleston testified that, after she bailed Walker out of the Cass County Jail February 26,

2007, Walker never again contacted Huddleston. Huddleston received a notice in the mail from the

Cass County District Attorney's Office some time after May 22, 2007, that Walker's burglary case

was scheduled for an upcoming arraignment hearing. Huddleston then mailed a postcard notice of



       4
          The indictment's allegation that Walker was released on a felony charge would be necessary
to establish that the indicted offense was a felony rather than a misdemeanor, thereby invoking the
district court's subject-matter jurisdiction. See Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim.
App. 2009). Thus, the applicable hypothetically correct jury charge—which must be authorized by
the indictment—should also contain that subject-matter-jurisdiction-invoking element.

                                                  6
that arraignment hearing date to Walker and later spoke with Walker's aunt (Ophelia James), who

confirmed that Walker had received the postcard and would soon contact Huddleston about the

upcoming hearing.5 Walker did not contact Huddleston. Walker also subsequently missed the

arraignment hearing on his burglary charge. The postcard notice mailed by Huddleston to Walker

was never returned as "undeliverable" to Huddleston by the post office. Huddleston mailed the

postcard notice to Walker at what she understood to be his home address on Walker Street in Queen

City, Texas.

       The bail bond for Walker's felony burglary charge (admitted into evidence as State's

Exhibit 1) bears Walker's signature and states that he is entering into an obligation (as a part of the

bail contract) "to appear before the proper court of Cass County, Texas, as he/she may be directed."

       Patricia Hollomon is a secretary with the Cass County District Attorney's Office. Her many

responsibilities include the duty to schedule the felony arraignment dockets for the district court and

to send notifications for those dockets to the interested parties. Hollomon testified she mailed a

notice May 11, 2007, to Walker at his last known address (407 Walker Street in Queen City, Texas)

informing him that his felony burglary case was scheduled for arraignment May 30, 2007, in the



       5
        Walker did not object to this hearsay statement. See TEX . R. EVID . 801(a), 802. The jury
was therefore permitted to consider this hearsay evidence for any purpose. See Fernandez v. State,
805 S.W.2d 451, 455–56 (Tex. Crim. App. 1991) ("Having failed to object, appellant must be
prepared to accept the concept that hearsay could be considered by the trier of fact as probative
evidence, to be assessed and weighed along with, and equal to, the other evidence admitted at trial.");
see also Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991) (hearsay evidence must
be considered for its probative value in analyzing evidentiary sufficiency).

                                                  7
District Courtroom. The notice was also sent to Huddleston. Hollomon testified Walker did not

appear for his May 30 arraignment hearing. Hollomon also told the jury that the notice she mailed

to Walker was never returned as "undeliverable" by the post office, while other notices for this same

arraignment docket did come back.

        Bill Page works as the criminal investigator for the Cass County District Attorney. Page, a

former Cass County Sheriff's Deputy, described the process of "booking in" someone to the Cass

County Jail. Page also testified that he has known Walker since Page was a teenager and identified

the accused in open court. According to Page, Walker lives with his mother in a house located on

Walker Lane in Queen City, Texas. Page also reviewed Walker's book-in records for the underlying

burglary charge; the sheriff's department's records indicated Walker, at the time of his arrest for that

burglary, provided a mailing address that was for a house located on Walker Lane in Queen City.

        Finally, Walker testified in his own defense. Walker acknowledged that he lived at a house

located on Walker Lane in Queen City, Texas. Walker said he receives his mail at a post office box

in that town, rather than receiving mail at his home. According to him, he had never received mail

at the house during the entire time he had lived there. He also said there was not a mailbox located

in front of that home. Walker admitted that he has been previously convicted of criminal conduct,

including two felony convictions for which he had served two years' imprisonment.6 He denied ever

receiving notice of the arraignment hearing scheduled for May 30, 2007.

        6
        One may impeach witness credibility with evidence of a conviction for felony or crime of
moral turpitude. TEX . R. EVID . 609(a).

                                                   8
       Walker also told the jury that the mailing address he gave his bondsman was for a post office

box in Queen City. Walker, however, received nothing at his post office box from his bondsman or

anyone else regarding the May 30 arraignment hearing for his burglary charge. Instead, he did not

find out about the arraignment hearing until he received a telephone call from the district attorney's

office following the arraignment date. On cross-examination, Walker agreed that, if James said to

Huddleston that Walker had received notice of the May 30 arraignment hearing, that such a

statement would likely be truthful. Walker also admitted he had failed to keep in touch with

Huddleston (the bondsman) after being bailed out of jail.

Analysis

       Assessing this evidentiary record against the challenged element of proof that Walker

intentionally or knowingly failed to appear in court in accordance with the terms of his release on

bail, we conclude that factually and legally sufficient evidence supports the jury's conclusion that

Walker intentionally or knowingly failed to appear, because the jury heard testimony that two

different parties mailed formal notices to the address where Walker lived (no evidence suggests that,

in the small town of Queen City, Texas, mail addressed to 407 Walker Street would not be delivered

to 407 Walker Lane); that none of those notices came back as "undeliverable"; that Walker's bail

bondsman talked with his aunt, who in turn said Walker had received actual notice of the

arraignment docket setting and would be subsequently contacting the bondsman before that hearing

date. While Walker's testimony directly contradicts the inferences that may be drawn from the other



                                                  9
witnesses' testimony, such contradictions in the evidentiary record are best resolved by the jury. We

overrule Walker's first and second issues.

       We similarly conclude legally and factually sufficient evidence supports the jury's decision

to reject Walker's defense of having a reasonable excuse for failing to appear. Walker's defense

depended entirely on whether the jury found him to be a credible witness who was more believable

than the State's witnesses. By its verdict, the jury chose to believe the State's witnesses rather than

Walker. Because the jury is in the best position to evaluate witness demeanor and credibility, and

because we cannot say the great weight and preponderance of the evidence requires us to conclude

the jury reached an improper conclusion in rejecting his defense of reasonable excuse, we cannot say

the evidence is legally and factually insufficient to support the jury's rejection of that defense. We

overrule Walker's third and fourth points of error.

       Finding no error in the proceedings below, we affirm the trial court's judgment.




                                                       Josh R. Morriss, III
                                                       Chief Justice

Date Submitted:        June 17, 2009
Date Decided:          June 23, 2009

Publish




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