
NO. 07-08-0286-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 22, 2009
______________________________

DOMINICK N. TUTT, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY;

NO. 1025144D; HONORABLE ELIZABETH BERRY, JUDGE
_______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Â Â Â Â Â Â Â Â Â Â Appellant, Dominick N. Tutt, appeals his conviction for attempted capital murder
contending that the evidence is legally and factually insufficient.  We affirm.
Background 
Â Â Â Â Â Â Â Â Â Â On the evening of June 5, 2006, Tarrant County Sheriff Deputy Michael Beeson was
working as security for Carnival Foods grocery store.  Upon receiving a phone call from his
wife, Beeson stepped outside of the store to speak with his wife.   While distracted during
the phone call, an assailant stepped up to Beeson and ordered him to get off the cell
phone.  Beeson looked toward the assailant and realized that a loaded firearm was pointed
at him.  As Beeson began to move away and draw his service weapon, the assailant shot
Beeson twice.   Beeson returned fire and hit the assailant in the back as the assailant ran
away.Â As two store employees tended to Beesonâs wounds, another witness, Jorge
Arambola, drove after assailant.  The assailant eventually eluded Arambola by jumping
over a residential fence and out of Arambolaâs sight.  At the scene, police spoke with
witnesses including Arambola, Arnulfo Sanchez and Mercedes Sanchez, who gave the
police a description of the assailant.  At the crime scene, the police photographed the
scene and gathered spent casings, a bandana, a cap, and samples of blood taken from
a wall along the assailantâs get away route.
Â Â Â Â Â Â Â Â Â Â Meanwhile, Beeson was rushed to a hospital where doctors stabilized him and
removed the bullets.  Within a couple of hours of his arrival, Beeson is shown a
photospread and asked to identify his assailant.  Initially, Beeson is in pain and asks to
view the photospread at a later time.  The next day, Beeson is shown a second
photospread and is able to identify appellant as the person who shot him.  Unknown to
Beeson, appellant had also arrived at the same hospital for treatment.  After the
identification by Beeson, appellant is arrested and charged with attempted capital murder.
Â Â Â Â Â Â Â Â Â Â At trial, the State had Arambola, Arnulfo, and Aliene Cruz testify to the shooting
incident and each described a tall, thin, black man as the person who shot Beeson. 
Mercedes also testified that a tall, thin, black man shot Beeson and testified that she
further identified the shooter in a photospread shown to her on June 26, about three weeks
after the shooting.  She identified the shooter as appellant.  Further, DNA evidence
gathered at the scene matched appellantâs blood.  The jury found appellant guilty and the
trial court judge assessed appellantâs punishment at life imprisonment in the Institutional
Division of the Texas Department of Criminal Justice.  Appellant timely filed his appeal
contending that the evidence at trial was legally and factually insufficient.  We affirm.
Legal Sufficiency
Â Â Â Â Â Â Â Â Â Â When appellant challenges both legal and factual sufficiency, we are required to
conduct an analysis of the legal sufficiency of the evidence first and then, only if we find
the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence.
See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996).  In assessing the legal
sufficiency of the evidence, we review all 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 beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620
(Tex.Crim.App. 2004).  In conducting a legal sufficiency review, an appellate court may not
sit as a thirteenth juror, but rather must uphold the jury's verdict unless it is irrational or
unsupported by more than a mere modicum of evidence.  Moreno v. State, 755 S.W.2d
866, 867 (Tex.Crim.App.1988).
Â Â Â Â Â Â Â Â Â Â Appellantâs primary contention that the evidence is insufficient centers on the
conflicting testimony presented at trial.  Appellant points out that Arambola, Cruz, and
Arnulfo were unable to give more than a general description of a thin, black man.  Only
Beeson and Mercedes were able to pick appellant out of a photospread, however, the two
gave different descriptions as to the clothing worn by the shooter.  Finally, appellant points
out that the DNA testing could not link him to either the bandana or the cap found at the
scene.  Hence, appellant contends that the evidence is so inconclusive that a rational jury 
could not have found the essential elements of the crime beyond a reasonable doubt.
Â Â Â Â Â Â Â Â Â Â Even given the conflict in the testimony, we presume that the jury resolved the
conflicts in favor of the prosecution.  Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.
2007).  Given that presumption, we conclude that a rational jury, based on the photospread
identification by Beeson and Mercedes, appellantâs DNA found along the shooterâs route, 
and the evidence that appellant was admitted to the hospital with a wound similar to what
the shooter would have experienced, had sufficient evidence to have found the essential
elements of the offense beyond a reasonable doubt.  See Ross, 133 S.W.3d at 620.  We
overrule appellantâs first issue.
Factual Sufficiency
Â Â Â Â Â Â Â Â Â Â In a factual sufficiency review, we must consider all of the evidence in a neutral light
to determine whether a jury was rationally justified in finding guilt beyond a reasonable
doubt.  See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).  The appellate
court views the evidence in a neutral light and asks whether the evidence supporting the
verdict is so weak or so against the great weight and preponderance of the evidence as
to render the verdict manifestly unjust.  See Steadman v. State, 280 S.W.3d 242, 246
(Tex.Crim.App. 2009).  A wrong and unjust verdict includes instances in which the juryâs
findings âshocks the conscience,â or clearly demonstrates bias.  See Grotti v. State, 273
S.W.3d 273, 280 (Tex.Crim.App. 2008).  In doing a factual sufficiency review, the appellate
court must be mindful that a jury has already passed on the facts and must give due
deference to the determinations of the jury.  See Lancon v. State, 253 S.W.3d 699, 704-05
(Tex.Crim.App. 2008).  If the verdict is set aside, the court of appealsâs opinion should
clearly explain how the evidence supporting the verdict is too weak on its own or how the
contradicting evidence so greatly outweighs the evidence in support of the verdict.  See id. 
Further, if a court of appeals upholds a verdict, it is required to consider the most important
evidence that the appellant claims undermines the jury's verdict and explain why it does
not have the persuasive force that the party believes is sufficient to overturn the verdict. 
See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
Â Â Â Â Â Â Â Â Â Â Next, under a factual sufficiency standard, we must consider all of the evidence in
a neutral light to determine whether a jury was rationally justified in finding guilt beyond a
reasonable doubt.  See Watson, 204 S.W.3d at 415.  However, unless the available record
clearly reveals a different result is appropriate, an appellate court must defer to the jury's
determination concerning what weight to give contradictory testimonial evidence because
resolution often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.  Johnson v. State, 23 S.W.3d 1, 8
(Tex.Crim.App. 2000).  Appellantâs contention does not focus on evidence that would
exculpate him, but rather insists that the contradictory description of the clothes, the lack
of DNA finding on the bandana and cap as well as the uncertainty in the testimony as to
which hand the shooter held the gun serve to provide sufficient reasonable doubt as to his
conviction.  However, we disagree with appellantâs claim and do not believe it has the
persuasive force to undermine the juryâs verdict.
Â Â Â Â Â Â Â Â Â Â Appellant focuses on the testimony and physical evidence that is inconclusive, yet 
does not address evidence that the jury could have believed.  Although the description of
the clothes were different between witnesses, the jury was in the position to evaluate the
credibility of the witnesses as well as the weight to give such evidence.  See id.  The jury
also could have given more weight to the DNA evidence found along the route versus the
inconclusive DNA evidence in the cap or the lack of DNA evidence on the bandana. 
Finally, the jury could have given more weight to the fact that Beeson and Mercedes were
able to pick appellant out of the photospread and less weight to the fact that the other
witnesses were not able to pick anyone as the shooter in the photospread.  Having
reviewed the record, we conclude that the record does not clearly reveal that a different
result is appropriate and, therefore, we will defer to the juryâs determination as to the weight
of the evidence and the credibility of the witnesses.  Hence, we conclude that, viewing all
of the evidence in a neutral light, the jury was rationally justified in finding appellant guilty
beyond a reasonable doubt.  See Watson, 204 S.W.3d at 415.  We overrule appellantâs
second issue.
Conclusion
Â Â Â Â Â Â Â Â Â Â For the foregoing reasons, we affirm the trial court.Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mackey K. Hancock
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice
Do not publish.

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NO. 07-10-00177-CV; 07-10-00178-CV; 07-10-00179-CV
Â 
IN THE COURT OF APPEALS
Â 
FOR THE
SEVENTH DISTRICT OF TEXAS
Â 
AT
AMARILLO
Â 
PANEL A
Â 

MAY
27, 2010
Â 

Â 
KENNETH GLENN WEBB, APPELLANT
Â 
v.
Â 
THE STATE OF TEXAS, APPELLEE 

Â 

Â 
 FROM THE 181ST DISTRICT COURT OF RANDALL
COUNTY;
Â 
NO. 11,994-B, 18-617-B, 18-618-B; HONORABLE JOHN B. BOARD, JUDGE

Â 

Â 
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
Â 
Â 
OPINION ON ABATEMENT
Â Â Â Â Â Â Â Â Â Â Â  On
February 25, 2010, in each referenced cause, pursuant to section 501.014(e) of
the Texas Government Code, the trial court signed and entered an Order to Withdraw Inmate Funds.[1]Â  By the withdrawal notifications
entered in each cause, the trial court directed the
Texas Department of Criminal Justice, Institutional Division, to withhold from
WebbÂs inmate trust account the following amounts: (1) $3,071.25 in cause
number 11,994-B; (2) $1,101.50 in cause number 18,617-B; and (3) $1,096.50 in
cause number 18,618-B.Â  Webb filed pro se
notices of appeal on April 26, 2010, challenging the withdrawal
notifications.Â  While each withdrawal notification contained the statement that
"court costs, fines and fees have been incurred as represented in the
certified Bill of Cost/Judgment attached hereto," none contained an
attachment of any kind.Â  Furthermore,
while the judgment entered in cause number 11,994-B does include an order that
the State recover "all costs," the judgments in cause numbers
18,617-B and 18,618-B are silent as to the assessment of costs.Â  
In
Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court
held that a withdrawal notification directing prison officials to withdraw
money from an inmate trust account pursuant to section 501.014(e) is a civil
matter akin to a garnishment action or an action to obtain a turnover
order.Â  Id. at 317-19; see also
Johnson v. Tenth
Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App.
2008) (holding that orders directing withdrawal of funds from inmate trust
accounts are not a criminal matter).Â  In determining whether Harrell was accorded
constitutional due process in that proceeding, the Court balanced three factors
discussed in Mathews v. Eldridge, 424
U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and noted that Harrell had "already
received some measure of due process."Â 
Harrell, 286 S.W.3d at 320.
Â Â Â Â Â Â Â Â Â Â Â  The
three Eldridge factors
considered in Harrell are: (1) the private interest affected by the
official action, (2) the risk of an erroneous deprivation of such interests
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards, and (3) the government's interest, including
the function involved and the fiscal and administrative burdens that additional
or substitute procedural requirements would entail. Â Id. at 319-20 (citing Mathews,
424 U.S. at 335). Â The Court found the
private interest to be affected to be easily ascertainable by reference to the
amount identified in a prior court document, which could be Âstated with
exactnessÂ as "the costs assessed when the convicting court sentenced
him."Â  Id. at 320.Â  Regarding the risk of
erroneous deprivation, the Court identified the risk as modest where withdrawal
notifications under the statute are based on an amount identified in a previous
court document.Â  See Tex. Gov't Code Ann.
Â§ 501.014(e)(1)-(6) (Vernon Supp. 2009).Â  The Court noted that "Harrell was . . .
notified of the costs assessed when the convicting court sentenced him"
and he was free to contest them at the time they were assessed. Â Harrell, 286 S.W.3d
at 320.Â  However, the Court went
on to recognize there could be a greater risk of erroneous deprivation in
instances in which the amount in the withdrawal notification varied from the
amount in the underlying judgment or those instances where there were clerical
or other errors.Â  Id.Â  In
assessing the final factor, the government's interest, the Court addressed the
fiscal and administrative burdens of added or alternative procedures and
concluded that the Texas Department of Criminal Justice would face expending
more money than it would collect if it were required to conform to
"full-blown" statutory garnishment requirements. Â Id. Â In the Court's opinion, such a drawn-out
procedure might subvert the Legislature's goal of efficient
cost-collection.Â  Id.
Harrell had
been convicted of drug charges in 1997 and 2003.Â  In 2006, the convicting trial court signed an
order authorizing the Texas Department of Criminal Justice, Institutional
Division, to withdraw funds from his inmate trust account to pay for court
costs and fees for appointed counsel.Â 
Harrell was provided with copies of the withdrawal notifications.Â  He then moved to rescind the withdrawal
notifications alleging denial of due process.Â 
His motion was denied, and his direct appeal to this Court was dismissed
for want of jurisdiction on the ground that no statutory mechanism was
available for appealing a withdrawal notification.Â  See
Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex.App. LEXIS 6416, at *3 (Tex.App.--Amarillo
Aug. 13, 2007), rev'd,
286 S.W.3d 315 (Tex. 2008). 
Â Â Â Â Â Â Â Â Â Â Â  In reversing this Court and
rendering judgment affirming the trial court's Order Denying Harrell's Motion
to Rescind, the Supreme Court held that due process entitles an inmate to
receive notice[2]
and an opportunity to be heard, even though those requirements might be
accorded the inmate after funds are withdrawn.Â 
Harrell, 286 S.W.3d at 321.Â  It concluded that because Harrell had
received notice (a copy of the withdrawal notification) and an opportunity to be heard[3] (the motion to rescind), he had received all that due process
required.Â  Id.Â  The Court added, "[t]he Constitution
does not require pre-withdrawal notice or a comprehensive civil garnishment
proceeding."Â  Id.
Â Â Â Â Â Â Â Â Â Â Â  Â On the limited record before this Court, we
are unable to determine if Webb has been given all that due process
requires.Â  Specifically, we are unable to
determine whether Webb has been (1) provided the necessary underlying
documentation, and (2) afforded an adequate opportunity "to compare the
amounts assessed by the trial court [in the underlying criminal proceedings] to
the amount[s] withdrawn and alert the court of any alleged errors." Â See id.Â  In that respect, we note
that the "risk of
an erroneous deprivation of [Webb's] interests through the procedures
used" in this particular case is apparent on the face of the documents
contained in the Clerk's Record.[4]Â  See id. at 320.
Â Â Â Â Â Â Â Â Â Â Â  If an appellate court is uncertain
about the intent of an order to finally dispose of all claims, it can abate the
appeal to permit clarification by the trial court.Â  See
Tex. R. App. P. 27.2.Â  Because the trial court has not entered an
appealable order either granting or denying a motion to confirm, modify,
correct, or rescind the prior withdrawal notification, we find Webb's notices
of appeal to be premature.Â  See
Williams v. State, Nos. 07-10-0091-CV, 07-10-0100-CV, 07-10-0101,
2010 Tex.App. LEXIS, 2998, at *8-9,
(Tex.App.--Amarillo April 22, 2010, no pet. h.).Â  
Â Â Â Â Â Â Â Â Â Â Â  Accordingly, this Court sua sponte abates
this appeal for 180 days from the date of this order to allow Webb time to take
such action as is necessary to (1) obtain the necessary documentation of the
underlying court order; (2) compare the underlying court order to the
withdrawal notification; (3) file an appropriate motion to modify, correct, or
rescind the withdrawal notification; (4) present that motion to the trial
court; (5) schedule any necessary hearing; and (6) obtain from the trial court
a final appealable order addressing that motion.Â  See
Tex. R. App. P. 27.2; see
also Iacono
v. Lyons, 6 S.W.3d 715 (Tex.App.--Houston [1st Dist.] 1999, no pet.) (finding appeal prematurely filed and abating and remanding
to permit the jurisdictional defect to be cured).Â  All appellate timetables will begin to run
from the date a final, appealable order is signed.
Â Â Â Â Â Â Â Â Â Â Â  It is so ordered.
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Per
Curiam
Â Â Â Â Â Â Â Â Â Â Â  




Â 




[1]This document is not an "order" in the
traditional sense of a court order, judgment, or decree issued after notice and
hearing in either a civil or criminal proceeding.Â  The controlling statute, Tex. Gov't Code Ann. Â§ 501.014(e)
(Vernon Supp. 2009), describes the process as a "notification by a
court" directing prison officials to withdraw sums from an inmate's trust
account, in accordance with a schedule of priorities set by the statute, for
the payment of "any amount the inmate is ordered to pay by order of the
court."Â  See id. at Â§ 501.014(e)(1)-(6); see also Harrell v. State,
286 S.W.3d 315, 316, n.1 (Tex. 2009).Â 
This document is more akin to a judgment nisi.Â  A judgment nisi, commonly used in bond
forfeiture proceedings, is a provisional judgment entered when an accused fails
to appear for trial.Â  A judgment nisi
triggers the issuance of a capias and it serves as notice of the institution of a bond
forfeiture proceeding.Â  It is not final
or absolute, but may become final.Â  See
Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App. 2008). Â Nisi means "unless," so a judgment
nisi is valid unless a party takes action causing it to be withdrawn.Â  Id.Â  Similarly, a withdrawal notification
issued pursuant to section 501.014(e), triggers a trust fund withdrawal, serves
as notice of the collection proceeding, and continues to operate unless the
inmate takes action causing the notification to be withdrawn.Â  Therefore, rather than refer to that document
as an order, we prefer to use the term "withdrawal notification" to
avoid confusion with an underlying court order or judgment ordering the payment
of a sum falling within at least one of the six priority categories listed in
the statute.


[2] In assessing the risk of erroneous deprivation of
property, the Supreme Court, in Harrell, considered the risk to be "modest" because notice under
the statute is "based on an amount identified in a prior court
document."Â  Harrell, 286 S.W.3d at 320 (emphasis
added).Â  The Court went on to comment
that the risk would be minimized if the trial court included a copy of the
underlying order or judgment that assessed costs when it issues a withdrawal
notification.Â  We wholeheartedly adopt
the Supreme Court's recommendation in this regard.Â  
We further note that the mere assessment of attorney
fees does not make them collectable through this process.Â  Under article 26.05(g) of the Texas Code of
Criminal Procedure, the trial court has authority to order reimbursement of
appointed attorney fees only if the court makes a fact-specific determination
that a defendant has financial resources that enable him to offset, in part or
in whole, the costs of the legal services provided.Â  See Tex.
Code Crim. Proc. Ann. art.
26.05(g) (Vernon Supp. 2009); see also Mayer v. State, No. PD-0069-09,
2010 Tex.Crim.App. LEXIS 100, at *11Â  (Tex.Crim.App. March 24, 2010).


[3] While the court of appeals's opinion is silent on whether a hearing was held
on Harrell's motion to rescind, Harrell, 2007 Tex.App. LEXIS 6416, at *3,
the trial court did enter a specific order denying his motion to rescind the
withdrawal notification.Â  We read the
Supreme Court's opinion as assuming that, by this process, Harrell was given
"an opportunity to be heard."Â  Harrell, 286 S.W.3d at 321.


[4] In cause number 11,994-B the withdrawal order
commands the Texas Department of Criminal Justice to withdraw $3,071.25, but
the Bill of Costs shows the amount due as being $2,908.59.Â  The Bill of Costs also includes $350.00 for
attorney's fees.Â  In cause number
18,617-B the withdrawal order was for the sum of $1,101.50, whereas the Bill of
Costs reflected an amount due of
$938.84, including $800.00 in attorney's fees.Â 
Finally, in cause number 18,618-B, the withdrawal order was for the sum
of $1,096.50, whereas the Bill of Costs reflected
an amount due of $1,072.63, including $800.00 in attorney's fees.


