Ledarryl Andre Murph v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00162-CR
______________________________
LEDARRYL ANDRE MURPH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 34,227-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Ledarryl Andre Murph was convicted by a jury of robbery and was sentenced to seventy-five years' imprisonment. On appeal, he contends that the conviction should be reversed because the court erred in denying his motion for an instructed verdict and that the punishment should be reversed because he did not receive a requested continuance.

A point of error complaining about a trial court's failure to grant a motion for directed or instructed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

Robbery exists when a person commits theft, and in the course of so doing, "intentionally, knowingly, or recklessly causes bodily injury to another; or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code Ann. 29.02(a), (b) (Vernon 2003). Murph contends there is no evidence that he had the necessary criminal intent to commit the crime.

 

The evidence shows that Murph smashed a window on a truck, stole a purse, and then attempted to escape in a van. A citizen, Rick Rumfield, caught Murph and took him back to the building, where Rumfield confronted him about the theft. Murph tried to escape from Rumfield, and in so doing, there is evidence that he struck and pushed Rumfield. Rumfield testified he was bleeding at the end of the scuffle.

"In the course of committing theft" is defined by the Texas Penal Code as conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the theft. Tex. Penal Code Ann. 29.01(1) (Vernon 2003). There is proof of an injury to Rumfield during the course of Murph's attempt to escape after the theft. That is sufficient to show that the act occurred.

Mental states are almost always inferred from acts and words. The mental culpability of a defendant is of such a nature that it generally must be inferred from the circumstances in which a prohibited act or omission occurs. A mental state is concealed within the mind of an individual and can only be determined from his or her words, acts, and conduct. Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998).

Undoubtedly, Murph's intent was to escape. While attempting to execute his intention, he caused injury. The statute only requires that, while committing theft, the person intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. 29.02(a)(1) (Vernon 2003). Rumfield testified Murph repeatedly attempted to get away from him and escape before the police could arrive; Rumfield was injured during one of those failed attempts. Under these facts and the statute, Murph's argument that his activities occurred after the theft was completed is unavailing.

The record contains evidence of actions that reflect the necessary mens rea. Thus, the trial court did not err by overruling the motion for an instructed verdict. The contention of error is overruled.

Murph also contends that the court erred in failing to grant a motion for continuance based on the notice given concerning the enhancement allegations. Murph argues that, because the State only gave him notice it intended to use out-of-state convictions as enhancement four days before jury selection, (1) he did not have constitutionally adequate notice. He contends the State also declined to actually produce a copy of the paperwork from the State of Minnesota until the punishment phase of trial was actually beginning.

Murph correctly notes he was entitled to notice. (2) However, to preserve a claim that a motion for continuance was improperly denied, a written motion for continuance must be filed. Here, no written motion for continuance was ever presented to the trial court. Dewberry holds specifically that a motion for continuance must be made in writing, and must be sworn; otherwise, any complaint is forfeited. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999).

Although there was some discussion about the timeliness of the notice, and a statement by counsel that he would ask for ten days' notice for an enhancement paragraph, no ruling was made on the request. Further, Murph never presented the trial court with a written motion for continuance. In the absence of such written and sworn motion, no error is preserved. Id. Accordingly, the contention now raised on appeal was not adequately presented to the trial court for decision and has not been preserved for our review. See Tex. R. App. P. 33.1.

We affirm the judgment.

 

Jack Carter

Justice

 

Date Submitted: April 2, 2007

Date Decided: April 25, 2007

 

Do Not Publish

1. Murph argues that only one "working day" was available after the notice.

2. See Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); Richardson v. State, 170 S.W.3d 855, 857 (Tex. App.--Texarkana 2005, pet. ref'd).