Thomas Eppelsheimer v. State

MODIFY and AFFIRM; Opinion Filed July 21, 2014.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00182-CR
No. 05-13-00183-CR
No. 05-13-00184-CR
No. 05-13-00185-CR

THOMAS EPPELSHEIMER, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause Nos. F-11-71623-X, F-11-71319-X, F-11-71624-X, F-11-71625-X

MEMORANDUM OPINION
Before Justices Lang, Myers, and Brown
Opinion by Justice Brown

Thomas Eppelsheimer entered an open plea of guilty to the offense of sexual assault of a

child in three cases and indecency with a child in a fourth case and executed judicial confessions

admitting to the offenses. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011); id.

§ 21.11(a). After a bench trial on punishment, the trial court found appellant guilty in all four

cases and sentenced him to four consecutive terms of twenty years in prison. The trial court also

ordered appellant to pay $594 in court costs in each case. In eight points of error, appellant

contends the trial court erred when it admitted certain testimony from one of the State’s

witnesses and complains the evidence is insufficient to support the trial court’s assessment of

court costs. In an additional point of error, appellant asserts the judgment in trial court cause

number F-11-71319-X should be modified to reflect the correct statute for the offense. We
modify the judgment in cause number F-11-71319-X as requested and affirm that judgment as

modified. We affirm the trial court’s judgments in cause numbers F-11-71623-X, F-1171624-X,

and F-11-71625-X.

Background

Appellant worked as the promoter of an after-hours rave club called DarkSide. Although

the minimum age for admission to the club was seventeen years old, DarkSide’s clientele

included many underage teenagers. DarkSide was the subject of an undercover narcotics

investigation. Through the investigation, undercover officers confirmed that a “wide array” of

drugs, including ecstasy tablets, powdered ecstasy (also known as “Molly”), meth, mushrooms,

LSD, and ketamine, which is a horse tranquilizer, were being sold and distributed in the club.

One undercover officer testified that the use and distribution of the drugs was out in the open

such that any club patron could have seen the drug distribution. That officer also testified to a

“drug distribution ring” inside the club called the “brotherhood,” with whom appellant was

involved. He said the narcotics division had intended to investigate the drug distribution

occurring at DarkSide for a longer period of time but stopped the investigation after learning

about the sexual-assault allegations against appellant.

The complainant in two of the sexual assault cases was H.S., and the complainant in the

third sexual assault case and the indecency with a child case was B.L. Both girls were fifteen

years old at the time of the offenses.

H.S. testified she started going to DarkSide when she was a freshman in high school.

Although she was underage, H.S. said “cute” girls were able to get in to the club. H.S. also had a

fake ID that said she was seventeen years old. H.S. described DarkSide as a place to do drugs

and that played “electro dance” or techno music. She said the girls wore “go-go outfits,” which

typically consisted of a bra and underwear or a bikini. H.S. testified that she took ecstasy when

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she went to the club, which she obtained from people at the club. H.S. said other drugs were

available and that a lot of the “kids” there, most of whom were underage, appeared like they

were doing drugs.

H.S. met appellant the first night she went to DarkSide, and she exchanged words with

appellant each time she visited the club. But during the summer before her sophomore year of

high school, she became “more acquainted” with appellant. She also exchanged text messages

with him and sent him pictures of herself, with and without clothes, which appellant persuaded

her to send. According to H.S., appellant knew that she was fifteen years old.

During that summer, H.S. invited B.L. and another friend to go to DarkSide. The girls

were in summer school together, and they spent a week planning the outing. H.S. and B.L. lied

to their parents about spending the night at each other’s house so they could go. The plan

included going to the club, hanging out at appellant’s house, having sex with appellant, and

spending the night at his house.

Appellant picked up the girls on a Friday at a local fast-food restaurant and took them

back to his house. After they toured appellant’s house, B.L. and appellant started “making out”

on the bed, and he was touching her; H.S. and the other friend were on the floor making candy

bracelets, which they later wore to the club. H.S. eventually joined them on the bed and testified

that appellant had sex with both of them. B.L. testified she had taken seven or eight Adderall

before arriving at appellant’s house and then appellant gave her another drug, which she

described as “something more” than Tylenol, for her knee pain. B.L. testified she “was not sober

at all” and does not remember much after taking those drugs.

The group later left for DarkSide and arrived with appellant before the club opened. The

girls wore go-go attire, but because appellant did not like the “bottoms” of B.L.’s outfit, he took

her to his office to find something else for her to wear. B.L. testified the office had a couch,

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table, some mirrors, and a bed. Appellant also had a variety of silk, see-through, and lace

panties. B.L. said appellant picked out some red panties for her and stared at her while she

changed, which made her feel uncomfortable. B.L. testified appellant then told her that she

could not leave the office until she had sex with him. B.L. said she “finally just gave in because

[she] couldn’t win.” B.L. stated that while she was in the office with appellant she was sobering

up from the Adderall and other drug she took earlier in the day.

After the club opened, H.S. said appellant gave her three or four ecstasy tablets to share

with B.L. and their other friend. H.S. and B.L. took the ecstasy tablets. While on ecstasy, B.L.

danced in a cage that was left-over from a topless bar that occupied the building before

DarkSide. B.L. testified that while she was dancing, appellant reached in the cage and touched

her “thigh and butt.” Later in the night, appellant also brought the girls water, which H.S. said

“wasn’t water” and made her sick. H.S. did not remember much after she drank the water other

than going to appellant’s office and lying on the bed. At one point, she recalled seeing his face

like he was on top of her; she also felt pressure on her vagina. B.L. also felt sick after drinking

the water. B.L. testified she threw up in the bathroom but has no memory of what happened

after that; her memory was “blank.”

The girls woke up Saturday in appellant’s bed. The girls talked about what they thought

had happened the night before, concluding that appellant “probably raped” H.S. and B.L. H.S.

testified she “couldn’t really remember everything” but she had sperm in her underwear and

there was blood. B.L. testified that when she woke up, she was sore on her thighs, hips, and

vaginal area. B.L. also had dried semen between her legs. B.L. said appellant told the girls he

had a “good night” with them. B.L. did not remember what happened, and she did not ask

appellant what he meant because she “didn’t want to know.” Even though the girls were scared

about what had happened, they stayed with appellant that day and went to the club again

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Saturday night. H.S. had sex with appellant again on Saturday. Appellant drove the girls home

on Sunday.

About two weeks later, B.L. told her younger brother what had happened, and B.L.’s

brother told their mother, who called the police. B.L. confirmed through text messages with

appellant that he had sex with her when she was intoxicated. Neither H.S. nor B.L. saw

appellant take any drugs, and to their knowledge, he was completely sober during their sexual

encounters.

Dallas police detective Kathy Delapaz investigated the sexual-assault allegations and

interviewed B.L. and H.S. She also interviewed appellant, who admitted to having sex with both

girls. According to Delapaz, appellant was “adamant” that he had not forced the girls to have

sex with him. Delapaz clarified that when she told appellant about the allegations of force being

used, she was referring to the fact that something like GHB, the date-rape drug, “might have

been in the water” appellant gave the girls. She testified that “when you drug somebody [she]

will put that in the force category.” Delapaz said appellant acted surprised when she told him the

girls were fifteen years old, but she did not believe that he was really surprised by the

information.

Through her investigation, Delapaz learned more about DarkSide. Delapaz testified that

DarkSide was the kind of place where one could make money beyond selling admission to the

event by confiscating drugs off kids that brought drugs to the club and reselling those drugs. She

also thought DarkSide was “a source of girls to have sex with on a personal gratification level.”

She explained that “cute girls dancing” brought people in to the club and also were “a pretty

important component because [appellant] was having sex with them.”

Delapaz also seized appellant’s cell phone and downloaded its contents. She testified to

appellant’s “very lengthy contact section” that included contacts for H.S. and B.L. Appellant

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had a phone number and birthdate for both girls. Delapaz also testified to other contacts in

appellant’s phone. One contact was for a girl named L.J. Delapaz said appellant’s contact

information for L.J. included not only the exact dates of his sexual encounters with her in his

office at the club but also the fact that he “found out later that she was 16 years old when he had

sex with her.”

L.J. testified she started going to DarkSide when she was sixteen years old; she used a

fake ID to get in the club. She went to DarkSide every weekend so she could do drugs and

“party.” Because she went to DarkSide so much, she got to know the employees and appellant.

L.J. exchanged contact information with appellant and sent him text messages. She also sent

appellant naked pictures of herself at his request. L.J. testified she had sex with appellant one

time when she slept over at appellant’s house. She was sixteen years old then, but she did not

report that encounter to the police. L.J. could not remember how many times she had sex with

appellant or whether she had sex with him in the office at the club. But she conceded that if

appellant said it was true, she would not question it.

L.J. testified that one could buy drugs at DarkSide. She explained that there were “guys

walking around all the time that had them, trying to sell them.” She also testified that appellant

knew that drugs were being sold in the club. L.J. was familiar with the “brotherhood.” She said

the group was “an easy way to get drugs” and was responsible for dealing drugs in the club.

During the time she went to DarkSide, L.J. was “doing a lot of drugs” and that anyone who came

into contact with her should have known that she was “visibly high” on drugs most of the time.

L.J. further testified to her experiences taking ecstasy and GHB. L.J. said GHB can make you

really sick and that it’s like “being black-out drunk.”

The trial court also heard testimony from three of appellant’s friends, each of whom

testified they were shocked by the charges against appellant. They said that appellant’s divorce

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had been difficult and that appellant’s behavior changed after the divorce. Appellant’s friends

confirmed that appellant did not drink or take drugs, and they believed he would be successful on

probation.

Admission of Testimony

Appellant’s first four points of error relate to certain testimony from L.J. that the trial

court admitted over appellant’s objections. Specifically, he contends the trial court erred by

allowing L.J. to testify about (1) appellant’s knowledge of his employees’ activities inside the

club (Point of Error One); (2) her sexual encounters with appellant (Point of Error Two); (3)

whether she was “visibly high” while on drugs (Point of Error Three); and (4) the physical

effects of GHB on a person (Point of Error Four). He claims the State’s questions eliciting L.J.’s

testimony regarding appellant’s knowledge of his employees’ activities and L.J.’s memory of her

sexual encounters with appellant were nothing more than an attempt to introduce inadmissible

extraneous offenses for no other purpose than to show character conformity. He further claims

L.J.’s testimony about her personal drug use was speculative and that L.J. was not qualified to

testify as an expert about the physical effects of GHB on a person. Appellant maintains the trial

court’s assessment of four twenty-year consecutive sentences shows that the erroneously-

admitted evidence affected his punishment in these cases.

We review a trial court’s ruling on the admissibility of evidence for an abuse of

discretion and will reverse only when the trial court’s decision was so clearly wrong as to lie

outside the zone of reasonable disagreement. De La Paz, 279 S.W.3d 336, 343–44 (Tex. Crim.

App. 2009); Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). Under article 37.07

of the Texas Code of Criminal Procedure, a trial court has broad discretion to admit evidence the

court deems relevant to sentencing, including evidence of prior crimes, reputation, character, or

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the circumstances of the offense. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West Supp.

2013) (permitting the court to admit “any matter the court deems relevant to sentencing”).

Of course, we may not reverse a judgment of conviction or punishment for error that does

affect appellant’s substantial rights. See TEX. R. APP. P. 44.2(b) (non-constitutional error “that

does not affect substantial rights must be disregarded”). Substantial rights are not affected if the

appellate court, after examining the record as a whole, has “‘fair assurance that the error did not

influence the jury, or had but a slight effect.’” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.

App. 2001) (quoting Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000)). When we

assess the injurious influence of evidence during punishment, we ask “whether the defendant

received a longer sentence as a result of the erroneously admitted evidence.” Rowell v. State,

No. 03-08-00451-CR, 2009 WL 1364351, at *5 (Tex. App.—Austin May 14, 2009, pet. ref’d)

(mem. op., not designated for publication). We consider everything in the record, including the

other evidence admitted in the case, the nature of the evidence supporting the fact-finder’s

determination, the character of the alleged error, and how it might be considered in connection

with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

Further, “in a harm analysis under Rule 44.2(a), ‘the presence of overwhelming evidence

supporting the finding in question can be a factor in the evaluation of harmless error.’” Id. at 357

(quoting Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)).

Here, after considering the whole record in these cases, we conclude that even assuming

the trial court erred in permitting L.J. to testify about the matters of which appellant complains,

appellant was not harmed by this testimony. See TEX. R. APP. P. 44.2(b). First, it is well

established that the improper admission of evidence does not constitute reversible error and is

“properly deemed harmless” if the same or similar facts are proved by other properly admitted

evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Anderson v. State,

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717 S.W.2d 622, 627 (Tex. Crim. App. 1986). Appellant’s challenge to the admission of L.J.’s

testimony about the employees’ activities in the club focuses on the implication that appellant

knew of illegal activity in the club. But L.J. specifically testified that appellant knew drugs were

being sold in the club because he told her so. And other testimony showed that DarkSide was

being investigated for illegal drug activity. L.J. also testified that while she could not remember

having sex with appellant in the office at DarkSide, she testified she had sex with him at his

house when she was sixteen years old. Delapaz also established in her testimony that

information retrieved from appellant’s cell phone included the exact dates of his sexual

encounters with L.J. in his office as well as the fact that she was sixteen years old at the time.

Thus, L.J.’s testimony about appellant’s knowledge whether the employees were doing anything

in the club that he was not supposed to know about and whether she remembered having sex

with appellant at DarkSide was cumulative of other testimony regarding those matters that was

admitted without objection. Consequently, the admission of this testimony had no effect on

appellant’s substantial rights, and any error in admitting this testimony was harmless. See

Anderson, 717 S.W.2d at 627.

In addition, given all the evidence before the trial court related to the offenses in this

case, it is unlikely that the admission of L.J.’s testimony about her own personal drug use or her

experience regarding the physical effects of GHB had an effect on the punishments assessed by

the trial court. See Motilla, 78 S.W.3d at 357. The evidence showed that appellant engaged in

sex with both H.S. and B.L. at his house and DarkSide while the girls were under the influence

of drugs and he was sober. In particular, the trial court heard how appellant encouraged H.S. to

send naked pictures of herself to him, picked H.S. and B.L. up after summer school, took the

girls back to his house, had sex with them, and then took the girls to DarkSide even though they

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were underage. B.L. had taken Adderall and another drug and did not remember what happened

at appellant’s house.

At DarkSide, appellant made B.L. change in front of him in his office, had sex with B.L.

there, and touched her while she danced. He also gave the girls ecstasy tablets and water that

made them sick and pass out. Neither H.S. nor B.L. could remember what happened after

drinking the water. But H.S. remembered feeling pressure on her vagina and seeing appellant’s

face on top of her, and she found semen and blood in her underwear; B.L. was sore in her vaginal

area and found dried semen between her legs. Delapaz also told the trial court that DarkSide

gave appellant a “source of girls to have sex with,” and she testified to the thousands of pages of

information she retrieved from appellant’s cell phone. The court heard how that information

included graphic records of his sexual experiences with “girl after girl after girl after girl,”

numerous pornographic pictures of girls, and inappropriate text messages between appellant and

H.S. and B.L., some of which were read during their cross-examinations. During his interview

with Delapaz, appellant also admitted he had sex with H.S. and B.L., and he judicially confessed

to each of the charged offenses. The only mitigating evidence appellant presented was the

testimony of his three friends, who told the court they were shocked by the charges. But nothing

in their testimony established that appellant should not be punished for the offenses. In short, the

State presented ample evidence to support the trial court’s label of a “predator” and assessment

of the four, stacked twenty-year sentences, aside from the complained-of testimony.

Because we conclude that appellant was not harmed by the admission of L.J.’s testimony,

we overrule appellant’s first, second, third, and fourth points of error.

Sufficiency of the Evidence to Support Assessment of Court Costs

In his fifth, sixth, seventh, and eighth points of error, appellant challenges the sufficiency

of the evidence to support the trial court’s assessment of $594 in court costs in each case. He

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asks that we reform the judgment to delete the requirement that he pay the specific amount of

court costs because the clerk’s record does not contain a cost bill. After appellant filed his brief,

however, the clerk’s record in each case was supplemented and now contains a bill of costs.

Specifically, each supplemental clerk’s record contains two pages of a computer printout

itemizing the costs assessed in the case and showing a total of $594 in court costs. Each

supplemental clerk’s record also includes a bill of costs certification signed by the deputy district

clerk and certified by the district clerk. Because the clerk’s record in each case now contains a

cost bill that supports the costs assessed in each judgment, appellant’s complaints that the

evidence is insufficient to support the imposition of costs because the records do not contain a

cost bill are moot. See Johnson v. State, 423 S.W.3d 385, 391–91 (Tex. Crim. App. 2014);

Coronel v. State, 416 S.W.3d 550, 555 (Tex. App.—Dallas 2013, pet. ref’d). We overrule

appellant’s fifth, sixth, seventh, and eighth points of error.

Appellant also filed an objection in each case to the bill of costs in the supplemental

clerk’s records. He argues (1) the “unsigned, unsworn computer printouts” and “bill of costs

certification” in each supplemental clerk’s record do not qualify as a proper bill of costs for

purposes of code of criminal procedure article 103.001 and (2) the record in each case does not

indicate the computer printout was filed in the trial court or brought to the court’s attention

before the costs were entered into the judgments. We previously have addressed and overruled

both of these arguments. See Coronel, 416 S.W.3d at 555–56 (concluding supplemental record

filed by clerk satisfies mandate of code of criminal procedure and there is no requirement that

cost bill be presented to trial court at any time before judgment); see also Johnson, 423 S.W.3d

at 392–94 (concluding 2 pages of computer printout and certification signed by deputy clerk and

seal of district clerk is “bill of costs for purposes of Chapter 103” and “matters pertaining to the

imposition of court costs need not be brought to the attention of the trial court, including a bill of

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costs prepared after a criminal trial”). Accordingly, we overrule appellant’s objections to the

cost bill contained in the supplemental clerk’s record filed in each case.

We also note that in his original brief and his objections, appellant does not challenge the

propriety or legality of the specific costs assessed. We therefore do not address those matters.

Modification of the Judgment

In his ninth point of error, appellant asks this Court to modify the trial court’s written

judgment in cause number F-11-71319-X to reflect the correct statute for the offense under

which he was convicted. The State agrees the judgment in this cause should be modified in the

manner appellant requests.

In cause number F-11-71319-X, appellant was charged with and convicted of the offense

of indecency with a child under section 21.11(a) of the penal code. See TEX. PENAL CODE ANN.

§ 21.11(a). Yet the trial court’s judgment in that cause incorrectly recites that the statute for the

offense is section 22.11 of the penal code, which describes the offense of harassment of a public

servant. See id. § 22.11. Under appellate rule of procedure 43.2(b), we have the authority to

correct a clerical error in a trial court’s judgment and affirm the judgment as modified. See TEX.

R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet.

ref’d). We therefore sustain appellant’s ninth point of error and modify the judgment in cause

number F-11-71319-X to show that the statute for the offense is section 21.11(a) of the Texas

Penal Code.

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 Conclusion

We affirm the trial court’s judgments in in cause numbers F-11-71623-X, F-1171624-X,

and F-11-71625-X. We modify the judgment in cause number F-11-71319-X as requested and

affirm that judgment as modified.

/Ada Brown/
ADA BROWN
JUSTICE

Do Not Publish
TEX. R. APP. P. 47

130182F.U05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

THOMAS EPPELSHEIMER, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-13-00182-CR V. Trial Court Cause No. F-11-71623-X.
Opinion delivered by Justice Brown.
THE STATE OF TEXAS, Appellee Justices Lang and Myers participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 21st day of July, 2014.

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

THOMAS EPPELSHEIMER, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-13-00183-CR V. Trial Court Cause No. F-11-71319-X.
Opinion delivered by Justice Brown.
THE STATE OF TEXAS, Appellee Justices Lang and Myers participating.

Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:

The “Statute for Offense” is modified to read: “21.11(a) Penal Code.”

As modified, the judgment of the trial court is AFFIRMED.

Judgment entered this 21st day of July, 2014.

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

THOMAS EPPELSHEIMER, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-13-00184-CR V. Trial Court Cause No. F-11-71624-X.
Opinion delivered by Justice Brown.
THE STATE OF TEXAS, Appellee Justices Lang and Myers participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 21st day of July, 2014.

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

THOMAS EPPELSHEIMER, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-13-00185-CR V. Trial Court Cause No. F-11-71625-X.
Opinion delivered by Justice Brown.
THE STATE OF TEXAS, Appellee Justices Lang and Myers participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 21st day of July, 2014.

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