






Willie Frank Campbell v. State















IN THE
TENTH COURT OF APPEALS
 

No. 10-01-233-CR

Â Â Â Â Â WILLIE FRANK CAMPBELL,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant
Â Â Â Â Â v.

Â Â Â Â Â THE STATE OF TEXAS,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee
 

From the 54th District Court
McLennan County, Texas
Trial Court # 2000-956-C
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
CONCURRING OPINION TO ORDER SETTING BAIL
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â Â Â Â Â Â Two points should be made in support of our order setting bail in the amount of $10,000. 
First, bail was set by McLennan County authorities at $7,500 when Willie Frank Campbell was
arrested  and charged.  This order represents bail one-third higher. 
Â Â Â Â Â Â Second, because of this Courtâs delay in acting on the Stateâs motion for rehearing, Campbell
has remained in prison without bail being set, having already had his conviction reversed, for
many months longer than he would have had we acted expeditiously.  Because that may affect the
Stateâs ability to retry him, we should take it into consideration.  See Montalvo v.  State, 786
S.W.2d 710, 711 (Tex.  Crim.  App.  1989) (Stateâs ability to retry Appellant is a factor is setting
bail after reversal).
Â Â Â Â Â Â The opinion reversing Campbellâs conviction, which began his entitlement to bail, was issued
on January 8, 2003.   The State requested, and received, an extension of time to file its motion for
rehearing, which was ultimately filed on February 20, 2003.  The motion for rehearing was not
acted on by this Court until January 14, 2004, almost eleven (11) months after it was filed.  This
delay has been prejudicial to both Campbell and to the State, which intends to retry him.
Â Â Â Â Â Â As an appellate court, we follow certain guidelines regarding the time it should take to decide
a case.  The categories tracked by the Office of Court Administration are: (1) cases submitted and
undecided for more than six months but less than twelve months; (2) cases submitted and
undecided for more than twelve months; and (3) motions for rehearing that have been pending
over thirty days.  Because the Stateâs motion for rehearing had not been decided by March 22,
2003, it first appeared on the monthly report dated March 31, 2003.  It has appeared on every
monthly report since that date.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â BILL VANCE
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Concurring opinion delivered and filed January 21, 2004
Publish

rs challenge is brought under the Jackson standard, we will limit
our review of legal sufficiency to the Âfederal standard.Â[1]
Â Â Â Â Â Â Â Â Â  We turn to the evidence to determine whether
the State proved that Booker was the actor who was on GonzalezÂs property,
without consent and with notice that his presence was forbidden.
Â Â Â Â Â Â Â Â Â  At trial, Gonzalez and Booker
testified about the events on the day in question.Â  GonzalezÂs wife Susan testified
on rebuttal, and Booker then testified a second time. Â Using exhibits, Gonzalez
described the physical layout of the property, including the location and
description of fences and gatesÂone locked and chained and two that remained
unlocked, but normally closed.Â  Gonzalez said that one of his motion-actuated
alarms went off around 10 p.m. Â He looked at the video monitor, which showed
the driveway in the lower right-hand corner, and saw a brown baseball cap on
the head of a person looking South.Â  That person turned left, went down the
side of the house, and Âwhen he got right nearly to the front of the house, he
went out to the center of the driveway, proceeded towards Main Street, got to
the sidewalk, hesitated, looked left, looked right, took a left.ÂÂ  When the
person reached the bridge or overpass across the street, Gonzalez got in his
wheelchair, went outside and told the person to lie down in the street.Â  He
said Âthe individual at the end of the drive that turned North was the
individual I intercepted.Â  No one was in between the point of the image turning
North and when I came out on the front porch with a shotgun to intercept.ÂÂ 
Questioned whether Booker was the person he saw on the monitor, Gonzalez said,
ÂI canÂt say that for sure.Â  I can only say I see the person I saw in the back
of the police car that was handcuffed.ÂÂ  Later, however, he answered ÂNoneÂ
when asked, ÂIs there any doubt in your mind that the person that you saw on
the monitor was the same person that you held at gunpoint.?ÂÂ  He said that he
never saw Booker on his property after he went outside with the shotgun.Â  When
the police arrived, they found that the back door had been kicked in.Â  It was
the motion detector inside that door that set off the alarm.Â  Gonzalez also
said that the individual who set off the alarm must have come over the fence
because the access gate was locked and he did not see anyone on the monitor
come down the driveway.Â  Later, he said that Booker told him, ÂTwo Mexicans ran
Â I saw two Mexicans run South.ÂÂ  At the close of his testimony, the following
exchange took place:
Q.Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Can you positively identify
the cap that you saw on your driveway outside the fence as this gentleman
sitting right here?
Â 
A.Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
No.
Â 
Q.Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Can you say without a doubt
that you never turned away from that monitor from the time you saw the movement
until the time you ended up on your porch with a shotgun?
Â 
[Objection overruled]
Â 
A.Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Say it again real slow.Â Â Â Â Â Â Â Â  
Â 
Q.Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Can you testify
definitively, positively that from the time you saw the movement on the monitor
that you never turned your head away from that monitor and you never took your
eyes off of it?
Â 
A.Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
No.Â  I cannot say that.
Â 
During the defendantÂs case, the clothes that
Booker was wearing the night of his arrest, which were still in the possession
of the jail, were admitted into evidence.Â  He described them as a black jacket,
a pair of Lugz shoes, blue jeans, a shirt, and a ball cap.Â  He said he worked
that day, got off work about 7:40 or 7:45 p.m., rode a bus (which was late),
and then walked toward a train station where he had some clothes stored.Â  As he
approached a bridge, he heard two sounds, Âboom, boom,Â like somebody
shooting.Â  He said he ducked down and saw Âtwo Spanish guys coming down the
driveway.ÂÂ  When they headed in the same direction he was going, he turned to
walk the other way.Â  As he walked beside the bridge, a man with a shotgun told
him to Âget down.ÂÂ  He told the man, ÂIt was two Spanish guys that come running
past me.ÂÂ  He denied being on GonzalezÂs property, inside the fence or house,
or kicking the door in.Â  He said he cannot kick because of fused bones and
screws in his hip joint that also prevent climbing.Â  In response to GonzalezÂs
testimony about a brown cap and tan jacket, Booker said he does not own a tan
jacket and his cap is like Army camouflage.
Â Â Â Â Â Â Â Â Â  On cross-examination, Booker said he
had an apartment in the area but could not sleep there because people kept
breaking into it and he was going to pick up his clothes and go to a mission to
see if he could find a place to spend the night.Â  He gave a description of the
two Spanish men.Â  He also admitted to being a convicted felon.
Â Â Â Â Â Â Â Â Â  Susan testified that she watched on
the monitor as a figure walked down the driveway toward the street.Â  She said
it was a slender person with a light-colored cap.Â  When he got close to the
street, he stopped, started to turn South, then turned North, and she watched
until he got out of camera range.Â  She said that it is hard to distinguish
colors at night on their surveillance system.Â  She admitted that she never saw BookerÂs
face that night.
Â Â Â Â Â Â Â Â Â  Only Gonzalez testified on the issue
of permission, saying that he never gave Booker permission to be on his
property.
Â Â Â Â Â Â Â Â Â  On the issue of notice, the State
relies on the testimony about the physical layout of GonzalezÂs propertyÂthe
fences and the gatesÂand the attempt to force open a closed door as evidence of
notice that entry was forbidden.Â  Booker points to the absence of testimony
about signs or other formal means of notice that entry was prohibited.
Viewing all the evidence in the light most
favorable to the determination of guilt, we find that consent was not at issue and identity and notice
were established to a significant degree by circumstantial evidence. Â Thus, the evidence is such that a rational trier of fact could have found beyond
a reasonable doubt all the essential elements of the offense charged.Â  See
Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789. Â Finding the evidence
legally sufficient, we overrule issue one.
Turning to the question of factual sufficiency,
we are immediately confronted with a credibility issue.Â  If there were two
Spanish men running away, as Booker testified, a verdict of guilty would not be
appropriate under the beyond-a-reasonable-doubt standard.Â  That determination,
however, rests with the factfinder.Â  Goodman v. State, 66 S.W.3d 283,
285 (Tex. Crim. App. 2001) (The factfinder accepts or rejects reasonably equal competing
theories of a case.).Â  Other conflicts in the evidence can be
reconciled, and it is the job of the factfinder to do so.Â  See Cain v. State,
958 S.W.2d 404, 410 (Tex. Crim. App. 1997) (The evidence is not factually
insufficient merely because the factfinder resolved conflicting views of
evidence in favor of the State.).Â  Thus, in this instance, we defer to the
factfinderÂs role and unique positionÂone that we as a reviewing court are
unable to occupy.Â  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App.
2000).Â  Viewing all the evidence in a neutral light, we believe that a finding
of guilt based on credibility determinations is supported by evidence beyond a
reasonable doubt.Â  See Zuniga, 144 S.W.3d at 484-85.Â  We overrule
BookerÂs second issue.
Â Â Â Â Â Â Â Â Â  Having overruled the issues, we affirm
the judgment.
Â 
Â 
BILL VANCE
Justice
Â 
Before
Chief Justice Gray,
Justice Vance, and
Justice Reyna
Â Â Â Â Â Â Â Â Â  (Chief
Justice Gray concurs in the result without a separate opinion)
Affirmed
Opinion
delivered and filed November 23, 2005
Do
not publish
[CV25]



Â 




Â Â Â  [1]Â Â Â Â Â Â  The
only additional discussion of the Âdual standardÂ by the Court of Criminal
Appeals that we can find is in Gharbi v. State, 131 S.W.3d 481, 482-83
(Tex.Â  Crim. App. 2003) (Âfederal constitutional law measures evidentiary
sufficiency against the Âelements of the criminal offense as defined by state
lawÂÂ and Âstate law measures evidentiary sufficiency against an Âauthorized by
the indictment ... hypothetically correct jury chargeÂ which Âencompasses [the]
statutory elements of the offense as modified by the charging
instrumentÂ").


