2&+IS
Ko-M=ai6yri5___ ORIGINAL
IN TITE
COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS
OF TEXAS APR 17 2015
Abel Acosta, Clerk
ROBERT EARL SCHIELE
APPELLANT-PETITIONER
V.
THE STATE OF TEXAS,
APPELLEE-RESPONDENT,
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FILED \N
IK APPEAL NO.01-13-00299-CR COURT OF CRIMINAL "^cMLb
APPEALS
APR 17 2015
FROM THE
court of appeals Abel Acosta, Clerk
FOR THE FIRST JUDICAL DISTRICT
HOUSTON, TEXAS
ROBERT EARL SCHIELE
TDCJ-ID NO#185C352
ALLEN POLUNSKY UNIT
3872 F.M. 350 SOUTH
LIVINGSTON, TEXAS
"J ~j O C "I
ORAL ARUGMENT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . iii
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF PROCEDURE HISTORY 2
STATEMENT;.OF 'THE .CASE T 1'..
GROUND FOR REVIEW NO. ONE
DID THE DECISION OF THE FIRST COURT OF APPEALS CONFLICT
WITH THE U.S. SUPREME COURT DUE PROCESS STANDARD THAT WAS
ANNOUNCED ESI JACKSON V VIRGINIA, REQUIRING EVIDENCE TO BE
BOTH LEGALLY AND FACTUALLY SUFFICIENT TO SUSTAIN A CONVICTION,
IN THIS CASEETHE EVIDENCE WAS LEGALLY INSUFFICIENT.
GROUND FOR REVIEW NO. TWO
AS PRESENTED BY THElSTftTEx GROUND-TWO ADDRESSES'PRONTS OF
ERROR TWO THROUGH NINE REGARDING THE TRIAL COURT'S ERROR IN
ALLOWING EXTRANEOUS EVIDENCE REGARDING PTITIONER3 PAROLE.
GROUND FOR REVIEW NO. THREE.
DID THE
TRIAL COURT ERROR REACH TO A LEVEL OF CONSTITUTIONAL
DIMENSION BY ALLOWING INSUFFICIENT EVIDENCE REGARDING AN
INJURY TO A CHILD CHARGE FROM OKLAHOMA DURING PUNISHMENT
ARGUMENT NUMBER ONE 3
ARGUMENT NUMBER TWO 7
ARGUMENT NUMBER THREE. . . 11
PRAYER FOR RELIEF 13
CERTIFICATE OF SERVICE 13
APPENDIX
11
INDEX OF AUTHORITIES
CASES:
CARRIZALES V STATE;
397 S.W. 3d 251,255(Tex.Crim.App.[13-Dist]2013) 3
CRUME V STATE:
342 S.W 3d 241(Tex.App.Beaumont 2011) 7
IN RE WIN5HIP:
397 U.S. 358 (1970) 2
JACKSON V VIRGINIA:
443 U.S.307,99 S.Ct.2781,61 L .Ed .2d 560 (1979') 2,3,5,7
MONTGOMERY V STATE:
810 S.W. 2d 37 2, 388(Tex.Crim.App.1990) 8
MOTON V STATE:
991 S.W.2d 84~1, 846(Tex. Crim. App. 1999) 10
MOSES V STATE:
105 S.W. 3d 62 2, 6 27 (Tex. Crim. App. 2003) 11
ORR V STATE:
307 S.W.3d 308,394(Tex.App. [2nd-Dist ]2010 ) 4
POWELL V STATE:
157 S.W.3d 646(Tex.Crim.App.2006) 9
POWELL V STATE:~
189 S.W. 3d 285 (Tex. Crim. App. 2006) .9
SANTELLAN V STATE:
93 9 S.W. 2d 155,168 (Tex. CRIM. APP. 1997) 8
SCHUTZ V STATE:
957 S.W. 2d 52,"71 (Tex. Crim. App. 1997) ..- 9
THOMPSON VvLOUISVILLE:
362 U.S. 199, 80 S .Ct. 62 ,4 L .Ed . 2dl54-' (1960 ) „• 5
UNITED STATES V AKPAN:
396 F.Appx.88( 5th. Cir. 2010) ;6
UNITED STATES V CRUZ:
326 F.3d 392(3d.CIR2003) 9
VALDEZ V STATE:
776 S.W. 2d 162 (Tex. Crim. App. 1989) 10
WILEY V STATE:
74 S.W.3d 3995497 n.21(Tex.Crim.App.2002) -10
WILLOVER V STATE:
70 S.W. 3d 481, 845 (Tex. Crim. App. 2002) 11
WHEELER V STATE:
67 S.W.3d 879,888'( Tex.Crim.App.2002) 10
STATUTES:
ABA MODEL RULES 4-4-1 1-2
ABA MODEL RULES 3.8 12
STARE DECISIS DOCTRINE 3,4
TEXAS RULE OF EVIDENCE:
RULE: 401 8
RULIT402 8
RULE 403 10
RUL E 404 7
RULE 901 - 11
Rule 902 11
RULE1005 11,12
i ii
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
ROBERT EARL SCHIELE
APPELLANT-PETITIONER,
V.
THE STATE'OFTTEXAS
APPELLEE-RESPONDENT,
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Appellant-petitioner, respectfully submitt this Petition For
Discretionary Review, and moves this Honorable court to grant
review of this cause and offers the following in support thereof;
STATEMENT REGARDING ORAL ARGUMENT
The appellant request oral argument in this case because such
argument may assist the court in applying the facts to the issues
raised. It is suggested that oral argument may help simplify the
facts, and clarify the issues.
STATEMENT OF THE CASEB
Appellant was convicted for arson by a jury in the 44lTh
District Court, in Polk County, and the conviction was enhanced
by a prior offense. On March 6, 2013, the jury returned a guilty
verdict, and on March 7, 2013, the jury deliberated on the punish
ment and found the allegation of the enhancement offense to be
)D
true, and assessed punishment for life in the Texas Department of
Criminal Justice Division, and appellant filed a timely notice of
appeal:?on March 8, 2013.
STATEMENT OF PROCEDURAL HISTORY
In cause number 22.467, the appellant-petitioner was charged
with the offense of Arson. Appellant-petitioner was convicted on
March 7, 2013, and appealed the conviction.
On the 19th day of February 2015, the First Court of Appeals
affirmed the conviction. No mation for re-hearing was filed
On A\CXra oQ 2015, this Petition. For Discretionary Review
was timely forwarded to the Court Of Criminal Appeals at P.O. Box
12308, Capitol Station, Austin Tiexas 78711.
GROUNDS FOR REVIEW
I.
DID THE DECISION OF THE FIRST COURT OF APPEALS CONFLICT
WITH THE UNITED STATES SUPREME COURT DUE PROCESS STANDARD
THAT WAS ANNOUNCED IN JACKSON V VIRGINIA REQUIRING EVIDENCE
TO BE BOTH LEGALLY AND FACTUALLY SUFFICIENT TO SUSTAIN A
CONVICTION AS IN THIS CASE THE EVIDENCE WAS LEGALLY IN
SUFFICIENT.
II.
AS PRESENTED BY THE STATE, GROUND TWO ADDRESSES POINT TWO
THROUGH NINE REGARDING THE TRIAL COURT'S ERROR IN ALLOWING
EXTRANEOUS EVIDENCE REGARDING PETITIONER'S PAROLE DURING
THE GUILT/INNOCENCE PHASE OF TRIAL.
(2)
Ill.
DID THE TRIAL COURT'S ERROR REACH TO A LEVEL OF CONSTITUTIONAL
DIMENSION BY ALLOWING INSUFFICIENT EVIDENCE REGARDING AN
INJURY TO A CHILD FROM OKLAHOMA DURING PUNISHMENT.
ARGUMENT NUMBER ONE
DID THE DECISION OF THE FIRST COURT OF APPEALS CONFLICT
WITH THE UNITED STATES SUPREME COURT DUE PROCESS STANDARD
THAT WAS ANNOUNCED IN JACKSON V VIRGINIA, REQUIRING EVIDENCE
TO BE BOTH LEGALLY AND FACTUALLY SUFFICIENT TO SUSTAIN A
CONVICTION AS IN THIS CASE THE EVIDENCE WAS LEGALLY
INSUFFICIENT.
The appellant courts decision conflict with the standard in
Jackson V Virginia,443 U.S.307,99 S.Ct.2781,61 L.Ed.2d 560(1979),
because the facts never proved appellant intentionally started a
or was involved in starting a fire. The evidence presented to the
jury was legally insufficient to satisfy the due process clause „
of the fourteenth amendment, which required the state to prove
each element of the offense beyond a reasonable doubt. . .:.- .
In this case it was clear the petitioner suffered a violation of
fundamental fairness, thats guaranteed by due process, and the
court of appeals decision fatally denied petitioner of that right
which he's guaranteed protection under.
The petitioner was charged as a party to an offense that his
wife was also charged absent being indicted, or charged for the
offense under the law of party. A fatal variance occurred here
when the jury convicted petitioner as a party to an offense with1^
out presenting evidence to show he was a party.
Applying the "Stare Decisis Doctrine" to this case its clear
that this case has simular elements of Carrizales V State,397 S.W
(3)
3d 251,255(Tex.App.-13th-Dist 2013):Orr V State,306 S.W.3d.380,
394(Tex.App.-2nd-Dist 2010) Inwhich two sister courts agreed that
"In order to establish the corpus delicti in an arson case case,
it is necessary to show the fire was designedly set by someone','"
and in this case the state was required to show that petitioner
intentionally started the fire, not base the determination on a
hunch, but by presenting supporting evidence.
-STARE DECISIS:
"stare decisis is a legal doctrine that means like facts
will receive like treatment in a jcourt of law."
In examining the state's theory of the case, and the argument's
used to show motive, claiming petitioner lack of compliance with
parole rules was the motive for allegedly starting the fire.
On page (12) of petitioners appellant brief, it shows how the
appellant counsel sequenced the events prior to the house fire,
and also argue that theycclaimed appellant sefeithe housep.onefire r
that morning based on testimony by Marian Buffington, fronf'. CPSv
that testified she was at petitioner home at 10:21 am On February
7th, and smelled something burning which she described as smelling
like wood burning, she testified that she didn't smell the odor
when she approched the house, but the further away from the house
the more she smelled, which was logical, because she was only a
few yards away from the area of where the property owner burn her
trash, which explain why Buffington didn't smell the burning odor
when she approched the petitioner's house. The Court Of Appeals
erred by considering the state's unsupportive argument that the
petitioner started the fire in order to cover up for not report
ing to his parole officer when states exhibit (6)(a video) show*o
(4)
that petitioner had been warned that a warrant for his arrest
would bee issued by his parole officer the day prior to the
fire, because petitioner knew he had failed a drug test, aibso the
evidence showed that petitioner called his parole officer at 1:30
pm, and told his parole officer where he was located, and stayed
there untile police came and arrested him.
The attorney also pointed out to the court of appeals on page
(23) of his brief that the "state incorrectly argued" that peti
tioner lied to Captain Childers, stating petitioner said, he had
left the house an hour before the fire was reported when the
electronic monitor showed he left the house 14-minutes before the
fire was reported," but the facts show petitioner had told Chil
ders that he and his family had returned to the house approximat-
ly one hour before they heard the sirens." He also told Childers
that they started cooking lunch with some items being fried, and
a grease fire startted and he thought he had put it out, and S/E.
(6) showis that petitioner was constently being interupted by
Childers, and not given the opportunity to state how long it took
to begin cooking, or to put the fire out. In Jackson V Virginia,
the U.S. Supreme court made it clear that a conviction is uncons
titutional even if there is some evidence of guilt when all the
evidence does not permit any retional fact-finder to find guilt
beyond a reasonable doubt, which under the Jackson standard the
state must prove every element.-See Also. Thompson V Louisville,
362 U.S.199,80 S.Ct.62,4 L.Ed.2d 654(1960).
FATAL VARIANCE:
Petitioner assert's that a fatal variance occured when he
(5)
was convicted as a party to an offense, and not charged in the
indictment, nor was the jury instructed on the law of party.
The petitioners wife was at the house prior to the fire,
and she was also at the bridge when he was arrested. The state
argued that petitioners wife was carrying a red expandable folder
with all their important papers. The appellant counsel refer's to
the fact that petitioner wife had gotten indicted for the same
charge. (RR4:15) The facts are clear that the petitioner wife
was carrying the red folder, which led the state to believe she
was part of the incident, but absent a party instruction, or a
charge in the indictment as a party, then the evidence of:petit
ioners wife earring the red folder can not be .used to convict the
petitioner, and to sustain a conviction as a party to an offense,
there must be evidence of a common purpose, or design prior to or
contemporaneous with the criminal act. United State V Akpan,396
F.Appx.88(5th Cir.2010) The First Court of Appeals ignored the
fact's pointed out on page (25) of the appellant brief that was
an indicator that the fire was not set intentionally, was that all
the family belongings, their clothes, their food, the kids toys,
and other valuables were in the house during the fire.
They Only had the cloth on their back other then the folder,
also there was the testimony by the arson investigator that could
not dispute the fact that the fire was accidental, there was no
insurance fraud, or any othe reason for petitioner, or his wife
to distroy their home, or property, and theirs no reason to assume
the fire had something to do with petitioners parole, because the
records show he called his parole officer, and waited there until
(6)
he was arrested. As far as his wife having the red folder, the
court erred by not giving an instruction on the party law, but
allowed the state to use evidence from whabs shown to had been
associated with petitioners wife, also the court ignored the
statement by petitioner to Capt. Childers, that explained the
reason for the petitioners wife to have the folder, which was the
fact that "he and his wife and two kids that were home left to let
the house are out,[following the accidential greas fire that he
thought he put out] to talk to a man about renting a travel trai
ler to live in" Which was a factor ignored by the court of appe.
eals as to the reason for the petitioners wife to have the red
folder with their personal information, and non of their personal
item, which was distroyed in the fire. The states theory of the
offense is so lacking in justification, that there was an error
well understood, and comprehended in existing law beyond any pos
sibility for fairminded disagreement. The court of appeals in
Beaumont agreed that, [as here] a conviction, or judgment to be
void due to no evidence. See Crume V state,342 S.W.3d 241(Tex.App
Beaumont 2011):Jackson V Virginia,443 U.S.307: The conviction is
based simply on a "hunch" that lack support, and since jeopardy
has attached here, the only resolution feesible would be to re
verse the conviction, because of no evidence as required by the
due process clause of the fourteenth amendment to the United
Staters Constitution.
GROUND FOR REVIEW NO. TWO
AS PRESENTED BY THE STATE GROUND TWO ADDRESSES POINT TWO
.« THROUGH NINE REGARDING THE TRIAL COURT'S ERROR IN ALLOWING
EXTRANEOUS EVIDENCE REGARDING PETITIONERS PAROLE
The trial court's allowing 404(b) evidence to be presented
(7)
to the jury during the guilt-innocence phase of the trial, pre
judiced th outcome of the proceeding by bolstering the states
theory, and relieving the state burden of persuasion beyond a re
asonable doubt of every essential element of the offense charged,
which had it not been for the improper bolstering of the 404(b)
evidence, the result of the proceeding more-then-likely would have
different outcome. The state was allowed present evidence of the
petitioners failed drug test, parole violations, anger management
alloduring the guilt/innocence phase of the trial, which had no
relevance in proving petitioner had motive, intent, or that he
committed the alleged offense gharged.
The records show that petitioner objected to the evidence, and the
court erred by allowing the state to introduce the evidence during
the guilt/innocence phase of the trial. The extraneous act's were
not relevant since it was made clear petitioner called his parole
officer shortly after the fire was discovered, which disproves
the states theory, that petitioner started the fire to avoid re
porting. The trial judge operated outside the boundaries of his
discretion. See Santellan V State,939 S.W.2d 155,168(Tex.Crim.App
1997). Relevant evidence is evidence to make the existence of any
fact that is of consequence to determination of the action more
probable or less probable then it would without the evidence. See
Tex.R.Evid.401. Evidence which is not relevant is not admissible.
Tex,R,Evid.402, The evidence had no relevance apart from character
conformity, and was not admissible, because it was evidence that
the probetive value of the extraneous act evidence was outweight-
ed by unfair prejudice. Tex.R.Evid.403:Montgomery V State,810 S.W
2d 372,388(Tex.Crim.App.1990). The stae argued that petitioner
(8)
opened the door to otherwise inadmissible evidence, when he stated
, he was arrested after calling his parole officer, but the law
forbids the straying beyond the scope of invitation. Schutz V
State,957 S.W.2d 52,71(Tex.Crim.App.1997).
POWELL V STATE,
The state argued that the appellant counsel improperly app
lied Powell based on the fact that the cpurt of criminal appeals
reversed the dicision of the waco court of appeals in Powell V
State,189 S.W.3d 285 (Tex. Crim .App. 2006 ). There are two totally
different issues involved in the two ease's, which would have.-;-.'^
required a reversal if the claim had been properly considered as
they were in Powel1. In this case the petitioner was not attem
pting to elude:: being arrested, infact, he called his parole off
icer and told him his whereabout when he had been told by his
parole officer that a warrant would be issued for his arrest.
Also the state addressed the fact that -in:- Powel 1 the court
refers to,,United Staes V Cruez,326 F.3d.392,394(3rd.Cir.2003 ),
which was unreasonable in addressing this issue here in this case
because, the jury was never given a hint of what type of crime
led to the parole,in ither Cruz, or Powel1. That wasn't the case
here, the state sought a conviction for ancoffense that even the
fire inspector testified to saying, there was no evidence that
dispute the fact that the fire was not started or caused by an
accident, even the petitioner testimony corroborate the fact that
the fire was not intentionally started, but the state persisted
that because petitioner was a criminal in general, he started the
fire,, or simply for being on parole caused him to set the fire.,
(9)
The appellant counsel correctly pointed out on page (40) of his
brief "that the state's case for showing motive and intent relied
entirely on appellant's parole status and extraneous offenses or
misconduct while of parole." The state also improperly cited
Valdez V State,77^6 S.W.2d 162,168 ( Tex. Crim. App. 1989 ) this case is
also inconsistent with the issues in t h i s case as well.
Tex.R.Evid.403, requires the court to examine the danger of conf
usion of an issue prior to allowing it to be presented to the jury
also the misleading that will arise, because looking at the in
stant case, eighty-percent of the trial was based soley on petit
ioners parole violations, and the factors surrounding his monitor
that failed to prove arson as alleged in the indictment. The state
knowingly presented these issue's to "Bolster A Weak" case, andt
also to sidetrack the juryinto considering factual facts unrelate
ed to proving intent,motive or whether thr fire was purposely
started, or anything to do with the issue at hand. This court has
determined inseveral case's simiiiibar to the issue discussed here,
that, "evidence is fairly prejudicial when it-has an undue tend
ency so that a decisional be made on an improper basic." See Wiley
V State,74 S.W.3d 399,407,n,21(Tex•Crim.App.2002):Wheeler V State
67 S.W.3d 879,888(Tex.Cram.App.2002):Reese V State,33 S.W.3d 238,
240-41(Tex.Crim.App.2000):Mozon V State,991 S.W.2d841,846(Tex.CR.
App.1999). This issue was properly persented in the appellant's
brief, and because of that petitioner ask the court to incorporate
by reference, the arguments advanced to the First Court of Appeals
to review, but erred in that endeavor, The approperate remedy here
would be to vacate the conviction.
(10)
GROUND FOR REVIEW NO. THREE
DID THE TRIAL COURT ERROR REACH TO A LEVEL OF CONSTITUTUINAL
DIMENSION BY ALLOWING INSUFFICIENT EVIDENCE REGARDING AN
INJURY TO A CHILD FROM OKLAHOMA DURING PUNISHMENT PHASE.
This was presented as ground ten in the appellant court,that
involved three documents S/E (20) (21) and (22) That were present-^
ed during the punishment phase of the trial to show that petit
ioner had allegedly been convicted in Cleveland County, Oklahoma
for injury to a child. A hearing was held outside the presence of
the jury to determine whether the evidence was admissible. The
defense objected on the ground that, (1) exhibit (20) did not-., ••;;.
provide sufficient independent evidence that appellant was the
subject of the exhibit, and (2) exhibits (21&22) were .noti^.erti f:-
ied, or authenticated, and therefore were hearsay, but the court
allowed the evidence over objection. As pointed out to the first
Court of Appeals at page (42) of the appellant's brief, state's
exhibit (20) contained no finger-prints, or any other indentifier
the stae presented state's exhibits (21&22) to attempt to provide
the missing indentifers, but neither states exhibits (21 or 22)
were ceritified as required by Texas Rule Of Evidence, Rules901,
_9_Q2, and Rule 1005. See Also Moses V State,195 S.W.3d 622,627(Tex
Crim.App.2003):Willover V State,70 S.W.3d 841,845(Tex.Crim.App.
2002) The requirement of authentication, or indent ification as a
matter of law, also as a condiction precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what it's proponent claim. Tex R. Evid. 9011(a)
Counsel also points to the basic of why the state wanted these
records presented, which was the fact that the records would
(11)
inflaim the jurys minds against petitioner, because the exhibits
reflected a conviction for injury to a child, which was one of thfe
most heinous of all the other other allegations presented, and it
cannot be said that it didn't have a substantial, and injurious
effect, or influence on the jury's decision to sentence petition
er to life.
TEXAS RULE OF EVIDENCE STATES:
"The contents of an offical record, or document authorized
to be record or file and actually recorded or filed,in
cluding data compilations in any form, if otherwise
admissible, may be proved by copy, certified as correct
by a witness who compared it with the original."
The stae in this case failed to authenticate the exhibits dis
cretion by allowing this information to be presented to the jury
absent the authenication requirements of Tex.R.Evid.1005.
This error was not harmless, it's clear it affected the jury's
decision in deciding the sentence, also the state neglected it's
obligation to seek justice as opposed to only seeking a win, which
violated a ethical duty imposed by the American Bar Association,
Moddel Rule Of Professional Conduct Rules, 3.8, and 4-4-1.
The state obtained a conviction on improper evidence, and.the .
court erred by allowing the state to present the improper evidencee
which was both prejudice, also used to sidetrack the jury.
Based on the issues presented here, also to the First Court Of
Appeals, the petitioner's Sixth and Fourteenth amendment was vio
lated, which the only remedy would be to remand for new sentence
ing .
RESPECTFULLY SUBMITTED,
*\<&SteS5.
ROBERT EARL SCHIELE #1850352
(12)
PRAYER
Petitioner respectfully presents this petition,:and pray
that the court reverse this case, and return to the sentencing
court, and a proceeding be held, also that the issues here be
resolved in a matter consistent with the U.S. Constitution.
ROBERT EARL SCHIELE#1850352
CERTIFICATES' OF SERVICE
I', ^ROBERT EARL'.iSGHTEEE, AN INMATE OF THE TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, PRESENTLY IN POLK, COUNTY, CERTIFY THAT ON
THIS DAY THE ffi1^ DAY OF JVrcVv 2015, THAT A TRUE AND
CORRECT COPY OF THIS PETITION WAS SENT BY U.S MAIL TO THE POLK
COUNTY DISTRICT ATTORNEY'S OFFICE AT 1001 WEST MILL ST. IN
LIVINGSTON TEXAS 77351.
.850352
ALLEN POLUNSKY UNIT
3872 F.M 350 SOUTH
LIVINGSTON, TEXAS 77351
(13)
Opinion issued February 19,2015
In The
Court of Appeals
For The
Jftnrt Bfetrut of Cexa*
NO. 01-13-00299-CR
ROBERT EARL SCHIELE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 411th District Court
Polk County, Texas
Trial Court Case No. 22467
MEMORANDUM OPINION
Appellant Robert Earl Schiele was charged by indictment with felony
arson.1 The indictment's enhancement paragraphs alleged that Schiele previously
1 On March 26, 2013, the Texas Supreme Court ordered this appeal transferred from
the Court of Appeals for the Ninth District of Texas. See TEX. GOV'T CODE ANN.
§ 73.001 (West 2013) (authorizing transfer of cases). We are unaware of any
had been convicted of felony burglary and felony retaliation. A jury rejected
Schiele's theory of the case—that the grease fire began accidentally—and found
Schiele guilty of the charged offense. After finding the enhancement allegations
true, the jury assessed punishment at life in prison. On appeal, Schiele contends
that the evidence at trial was legally insufficient to support his conviction. He also
contends that the trial court erred by (1) admitting, during the guilt/innocence
phase, evidence that he was on parole at the time he committed the charged offense
and had previously violated parole conditions and had his parole revoked, and
(2) admitting, during the punishment phase, evidence of a prior conviction for
injury to a child. We affirm.
Background
On February 7, 2012, the mobile home that Schiele and his family were
renting caught fire and burned to the point that it was not salvageable. Marian
Buffington, a Children's Protective Services caseworker, testified that she believed
she smelled something burning when she made an unannounced visit to the home
on the day of the fire. She arrived at 10:21 a.m. but left shortly thereafter because
no one answered her knock on the door. She testified that she smelled something
burning as she walked back toward her car and away from the home. But
conflict between the precedent of the Court, of Appeals of the Ninth District and
that of this Court on any relevant issues. See TEX. R. APP. P. 41.3.
Buffington did not call 911 because she returned to the front door to check the
smell and could not smell anything while standing there.
Approximately three hours later, Jack Ray, a passerby, drove by the home
and saw smoke and flames. Ray called 911 to report the fire at 1:29 p.m. He
testified that he had driven by the home 15 minutes earlier and had not seen any
evidence of fire at that time.
Officer T. Binford of the Polk County Sheriffs Department testified that he
was dispatched to the scene around 1:32 p.m. When he arrived five minutes later,
Binford looked in a window and saw "a small fire in the kitchen area" that
"appeared to be on the top of the stove area." He testified that the house was
"filled with smoke" and that no one was inside.
Schiele had not called 911 to report the fire, but he did call Krystal Philp, his
parole officer, half an hour after Ray reported the fire. At about 1:58 p.m. on
February 7, Schiele left a voicemail for Philp explaining that he had failed to report
that morning due to a fire at home. Philp returned Schiele's call that afternoon and
made a recording of their conversation, which was played for the jury at trial. In it,
Schiele told Philp that his home caught fire that morning. Schiele told Philp that
he had put out the fire and then left to meet Philp in Huntsville, as she had
instructed the day before, but that he failed to make the meeting because he had to
return home when he learned the fire had re-ignited. Schiele told Philp that he had
inhaled smoke and left the home and that he was at a nearby bridge. Earlier that
day, Philp had requested a warrant for Schiele's arrest based on his failure to report
as instructed.
Captain R. Childers of the Polk County Sheriffs Department testified that
he arrived at the bridge after another officer had arrested Schiele pursuant to the
arrest warrant. Childers testified that Schiele's wife, Bessie Lucas, and two
children, were at the bridge with Schiele and the arresting officer. Lucas's bag
contained a red expandable folder containing important family documents.
Once Childers and Schiele arrived at the police station, Childers conducted a
videotaped interview of Schiele, which was played for the jury. According to
Schiele, he was frying lunch—hot pockets, corn dogs, and French fries—in a
skillet on the electric stove when a grease fire started. Schiele told Childers that a
cabinet caught fire, and that his children ran outside as he fought the fire. Schiele
said that he only left the house after he thought that he had extinguished the fire.
Schiele, Lucas, and the children then walked to a nearby bridge where they waited
for the smoke to clear out of the home. Although Schiele heard sirens within an
hour after he left the home, he did not return because he did not "want to deal with
the landlady." Schiele surmised that the fire must have blazed back up after he
left.
During the same recorded interview, Schiele admitted to Childers that
Schiele had falsely told Philp over the phone that the fire occurred in the morning.
He said that he used the fire as his "excuse" for not reporting to Philp as instructed.
Schiele also admitted to Childers that Philp had told him that an arrest warrant
would issue if he did report to her in the meeting.
Philp testified that Schiele had failed to report to her on February 6, the day
before the fire. When Philp asked Schiele to explain his failure to report, Schiele
told her that he left home to go to work, but his boss's truck broke down, and that
his other attempts to find a ride to meet Philp were unsuccessful. Philp told
Schiele that the records from his electronic monitor showed something different—
that Schiele never left home on February 6. Schiele responded that the monitor
must not have been working properly. Philp ended the conversation by telling
Schiele to report to her in Huntsville at 10:00 a.m. the next day, February 7. She
told Schiele that she would request a warrant for his arrest if he did not report to
her on February 7 at 10 a.m. She also told him that she would request a warrant
for his arrest if further investigation of his electronic monitor records confirmed
that Schiele was falsely claiming to have left home on February 6. When Schiele
failed to report on February 7 as instructed, Philp submitted a violation report, and
a warrant issued around 1:11 p.m. that day.
Jay Barbee, Polk County Fire Marshal and arson investigator, investigated
the fire. Barbee testified that the origin of the fire was a pot that had been on the
electric stove. Barbee estimated that the burner had to have been on for 30 to 45 to
melt the sides of the pot. Barbee testified that he could not determine whether the
burner had been left on intentionally and that there was no evidence that an
accelerant was used to start the fire.
James Booker, Schiele's parole officer at the time of trial, sponsored the
results of Schiele's drug test, which showed that Schiele tested positive for
memamphetamine two days after the fire. He also sponsored a document in which
Schiele admitted in writing that he used methamphetamine on February 6, the day
before the fire.
Booker also told the jury about the records obtained from Schiele's
electronic monitoring system. They showed that Schiele's home monitor was
unplugged at 8:05 a.m. on February 7, the day of the fire. The system nevertheless
continued to monitor Schiele's entry and exit from his home due to a battery
backup, about which officers do not tell parolees. Booker testified that the records
showed that, on the day of the fire, Schiele left home at 9:29 a.m., returned at
12:51 p.m., and left again at 1:14 p.m, approximately 15 minutes before Ray
reported the fire to 911.
Sandra Henderson, who lived nearby, testified that she was the owner of the
home, and had rented it to Schiele's wife, Lucas, since September 2011.
Henderson testified that Lucas complained about bedbugs and roaches in January
2012. Henderson was willing to pay for an exterminator to treat the home and told
Lucas that they needed to schedule the extermination for a time when no one
would be home, but she never heard anything else about it.
Although Henderson occasionally had helped Lucas by caring for her
children, driving her to life and career skills courses, and helping her organize her
important documents into the red folder, Henderson ultimately posted an eviction
notice around February 3, 2012, for unpaid rent. Henderson testified that on
February 7, the day of the fire, she saw Lucas and her two children walking away
from the home at 9:00 a.m., with Lucas carrying a large bag.
Sufficiency of Evidence
In his first issue, Schiele contends that there was legally insufficient
evidence to support his conviction because no direct evidence shows that he
intentionally set the fire, and he presented evidence suggesting the fire was an
accident and was extinguished when he left the home.
A. Standard of Review
"When reviewing the sufficiency of the evidence, we consider all of the
evidence in the light most favorable to the verdict to determine whether, based on
that evidence and the reasonable inferences therefrom, a jury was rationally
justified in finding guilt beyond a reasonable doubt." Merritt v. State, 368 S.W.3d
516, 525 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 318-
19,99 S. Ct. 2781 (1979)). "The jury is the sole judge of credibility and weight to
be attached to the testimony of witnesses." Id. Juries are permitted to draw
reasonable inferences from facts as long as each is supported by the evidence
presented at trial. Id. We determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict. Id. at 526 (citing Hooper v.
State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). We presume the jury
resolved conflicting inferences in favor of the verdict and defer to that
determination. Id. The standard is the same for both direct and circumstantial
evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).
B. Applicable Law
As relevant in this case, a person commits arson if he "starts a fire,
regardless of whether the fire continues after ignition, or causes an explosion with
intent to destroy or damage any building, habitation, or vehicle knowing that it is
located on property belonging to another." Tex. Penal Code Ann.
§ 28.02(a)(2)(D) (West 2011). A person acts intentionally, or with intent, with
respect to the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result. Tex.
Penal Code Ann. § 6.03(a) (West 2011); Wise v. State, 364 S.W.3d 900, 903
(Tex. Crim. App. 2012).
C. Analysis
There was no dispute that Schiele's actions caused the grease fire in the
mobile home—the central issue in the case was whether he committed the actions
with the requisite intent. Intent is most often proven through circumstantial
evidence. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991),
overruled on other grounds, Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App.
1992); Dominguez v. State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist]
2003, pet. refd). And a jury may infer intent from any facts that tend to prove its
existence, such as the acts, words, and conduct of the defendant. Hernandez, 819
S.W.2d at 810; Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980);
Dominguez, 125 S.W.3d at 761.
Here, the jury rationally could have inferred that Schiele intended to cause
the fire from several of his actions before and immediately after the fire. First, the
jury heard Schiele admit to Childers in the interview that Schiele did not report the
fire to 911 despite the fact that the fire was significant enough to spread from the
stove to a kitchen cabinet and cause a sore throat from smoke inhalation. Second,
thejury heard and saw Schiele admit in the interview that he left the home and did
not return, even after hearing sirens approach. The reason he proffered for not
remrning to the scene was that he did not want to "deal with" Henderson. Third,
the jury could have rationally inferred that Schiele attempted to conceal his
whereabouts on the day of the fire based on evidence that his electronic monitor
was unplugged shortly after 8:00 a.m. See Guevara v. State, 152 S.W.3d 45, 50
(Tex. Crim. App. 2004) (attempts to conceal incriminating evidence and
implausible explanations to the police are probative of wrongful conduct and are
circumstances of guilt); Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App.
1983) (conduct of a defendant subsequent to the alleged commission of a crime
that indicates a consciousness of guilt is a circumstance tending to prove that the
defendant committed the act with which he is charged); Ramirez v. State, No. 14-
07-00060-CR, 2008 WL 3931403, at *4 n.5 (Tex. App.—Houston [14th Dist]
Aug. 21, 2008, pet. refd) (mem. op., not designated for publication) ("Leaving the
scene of a crime indicates a consciousness of guilt.").
The jury likewise rationally could have inferred intent from some of
Schiele's words. In his interview with Childers, Schiele admitted that he falsely
told Philps that the fire started in the morning, before Schielepurported to have left
for Huntsville for his 10:00 a.m. meeting with Philp. Schiele admitted to Childers
that this was false, because, according to the account that Schiele gave Childers,
the fire started at lunch time. Schiele also made a key admission about the reason
m
he told Philp this lie: he was trying to use the fire as an excuse for failing to report
to her in Huntsville. This admission could have been damaging in the jury's eyes
because it dovetailed with the State's theory of motive: Schiele intentionally set
the fire to avoid having to report to Philp because he knew that reporting to Philp
would result in his failing a drug test (because he had used memamphetamine on
February 6) and having his probation revoked. See Merritt, 368 S.W.3d at 526
(while not an element, motive can be a circumstance indicative of guilt); Temple v.
State, 342 S.W.3d 572, 588 (Tex. App.—Houston [14th Dist.] 2010) (lying is a
circumstance of guilt), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013).
Finally, Schiele's account of when he left the home likewise could have
been viewed by the jury as words tending to show intent. Schiele told Childers
that approximately one hour passed between the time he and his family left home
and the time he heard sirens. But his monitor showed that he left only 14 minutes
before Ray reported the fire, and the evidence showed that authorities responded to
the scene within 9 minutes of Ray's report. Based on this evidence, the jury
rationally could have inferred that Schiele was untruthful and attempting to conceal
his whereabouts at the time of the fire. See Merritt, 368 S.W.3d at 527
(considering evidence that appellant's recollection of activities on evening of arson
was contradicted by other evidence in sufficiency analysis).
11
Schiele argues that the evidence was insufficient because Barbee testified
that he could not determine whether the fire was set intentionally, the State's case
was based only upon circumstantial evidence, and there was some evidence that he
started the fire accidentally. But circumstantial evidence is just as probative as
direct evidence and, in circumstantial cases, "it is not necessary that every fact and
circumstance 'point directly and independently to the defendant's guilt; it is
enough if the conclusion is warranted by the combined and cumulative force of all
the incriminating circumstances.'" See Temple, 390 S.W.3d at 359 (quoting
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)). Likewise, while
Schiele correctly points out that there is some evidence that the fire was accidental,
we rely on the jury to resolve conflicts in the evidence, and this is especially so in
the context of credibility determinations. See Lancon v. State, 253 S.W.3d 699,
705 (Tex. Crim. App. 2008) (we afford almost complete deference to jury's
determinations of credibility); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000) (appellate courts resolve any inconsistencies in the evidence in favor of
the verdict).
Viewing the evidence in the light most favorable to the verdict, as we must,
we conclude that a rational jury could have convicted Schiele of arson.
Accordingly, we hold that the evidence was legally sufficient to support the
judgment. See Orr v. State, 306 S.W.3d 380, 394 (Tex. App.—Fort Worth 2010,
19
no pet.) (evidence sufficient to support conviction for arson where appellant had
motive, was present at the time of the fire, and gave implausible explanations about
fire); Fitts v. State, 982 S.W.2d 175, 186 (Tex. App.—Houston [1st Dist.] 1998,
pet. refd) (presence at the scene before the fire coupled with motive and
opportunity is evidence tending to establish arson); Krebsbach v. State, 962
S.W.2d 728, 734 (Tex. App.—Amarillo 1998, pet. refd) (evidence sufficient to
support murder conviction where appellant had motive to set the fire, was present
in home as fire began, and made inconsistent statements about how she discovered
fire).
We overrule Schiele's first issue.
Evidentiary Issues in Guilt/Innocence
In his second through ninth issues, Schiele contends that the trial court
abused its discretion in admitting evidence of several of Schiele's bad acts.
Specifically, Schiele argues that the trial court erred in admitting evidence that
Schiele (1) was on parole, (2) failed to report to his parole officer the day before
the fire and the day of the fire, (3) violated his parole by using a controlled
substance the day before the fire and by disconnecting his electronic monitoring
device the day of the fire, (4) lied to his parole officer about why he failed to report
the day before the fire and the day of the fire, (5) was required to attend anger
n
management classes, and (6) had violated parole obligations and had his parole
revoked before February 6,2012.
A. Standard of Review
We review a trial court's evidentiary rulings for an abuse of discretion. De
La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We will not reverse
a trial court's ruling on evidentiary matters unless the decision was outside the
zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.
Crim. App. 2007). If the trial court's ruling can be justified on any theory of law
applicable to that ruling, the ruling will not be disturbed. De La Paz, 279 S.W.3d
at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982) ("When a
trial court's ruling on the admission of evidence is correct, although giving a
wrong or insufficient reason, this Court will not reverse if the evidence is
admissible for any reason.")).
B. Applicable Law
Evidence of extraneous crimes, wrongs, or acts is not admissible at the guilt-
innocence phase "to prove the character of a person in order to show action in
conformity therewith" but is admissible to prove other matters, such as "motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident" if the accused is given reasonable notice of the State's intent to
introduce the evidence. Tex. R. Evid. 404(b) (extraneous evidence must have
14
probative value beyond character conformity to be admissible). The Court of
Criminal Appeals has held that evidence of an appellant's parole status is properly
admitted under Rule 404(b) to show motive. Powell v. State, 189 S.W.3d 285, 289
(Tex. Crim. App. 2006) (evidence defendant was on parole was admissible under
Rule 404(b) for purpose of establishing defendant's motive for evading arrest).
Further, rebuttal of a defensive theory is also "one of the permissible purposes for
which relevant evidence may be admitted under Rule 404(b)." Moses v. State, 105
S.W.3d 622, 626 (Tex. Crim. App. 2003).
"However, even if the evidence is relevant, and the purpose for which it is
being offered is permissible under Rule 404(b), it may still be excluded by the trial
court under Rule 403 if its probative value is substantially outweighed by the
danger of unfair prejudice." Id. (citing Montgomery v. State, 810 S.W.2d 372, 387
(Tex. Crim. App. 1990) (en banc)). Under a Rule 403 analysis, we consider:
(1) the inherent probative force of the proffered item of evidence along with (2) the
proponent's need for that evidence against (3) any tendency of the evidence to
suggest decision on an improper basis, (4) any tendency of the evidence to confuse
or distract the jury from the main issues, (5) any tendency of the evidence to be
given undue weight by a jury that has not been equipped to evaluate the probative
force of the evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence already
is
admitted." Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App.
2006). The trial court is presumed to have conducted the proper balancing test if it
overrules a 403 objection, regardless of whether it conducted the test on the record.
See Williams v. State, 958 S.W.2d 186,195 (Tex. Crim. App. 1997).
C. Analysis
Here, the State offered the challenged evidence to prove that Schiele had a
motive to and did set the fire intentionally. The fact that Schiele was on parole,
failed to report to his parole officer on February 6 and February 7, was not truthful
about why he failed to report, tested positive for methamphetamine on February 9,
which he admitted to using on February 6, and disconnected his electronic monitor
on February 7 are all circumstances that demonstrate that Schiele had a motive to
set the fire. See Merritt, 368 S.W.3d at 527 (while not an element, motive can be a
circumstance indicative of guilt). Accordingly, the trial court did not err in
concluding that this evidence was probative and admissible under Rule 404(b).
See Tex. R. Evid. 404(b); Powell, 189 S.W.3d at 289 (evidence of appellant's
parole was admissible to show motive for evading arrest);
Valdezv. State, 776 S.W.2d 162,168 (Tex. Crim. App. 1989) (evidence of an
outstanding federal parole warrant was admissible on the issue of defendant's
motive for shooting a police officer).
16
We also conclude that the trial court did not abuse its discretion in
overruling Schiele's Rule 403 objection with respect to some of the challenged
evidence. Specifically, evidence that Schiele was on parole, failed to report to
Philp on February 6 and February 7, used methamphetamine on February 6,
disconnected his electronic monitor on February 7, and lied to Philp about why he
failed to report was admissible under Gigliobianco.
The first two factors—the probative value of the evidence and the State's
need for the evidence—weigh strongly in favor of admissibility. The evidence that
Schiele was on parole at the time of the offense, failed to report, used
methamphetamine on February 6, disconnected his electronic monitor, and lied
about why he failed to report on February 6 is probative of motive and intent. The
State needed the evidence to demonstrate why Schiele would have deliberately set
his home on fire. See Powell, 189 S.W.3d at 289 ("there was reason to believe that
the State had a significant need for the evidence" that appellant was on parole to
show motive and contradict other evidence).
Under the third factor, we examine the unfair prejudice, that is, the tendency
of the evidence to suggest decision on an improper basis. Gigliobianco, 210
S.W.3d at 641. Evidence might have this tendency "if it arouses the jury's hostility
or sympathy for one side without regard to the logical probative force of the
evidence." Id. Here, the evidence about Schiele's parole likely harmed Schiele,
17
but the risk of unfair prejudice was minimized somewhat because the jury did not
learn the offense for which Schiele was on parole. See Powell, 189 S.W.3d at 289
(risk of undue prejudice was minimized by the fact that jury was not told what
crime led to parole status). This factor weighs against admissibility.
In considering the fourth and sixth factors, we examine the tendency of the
evidence to confuse or distract the jury from the main issues and the time required
to develop the evidence. Gigliobianco, 210 S.W.3d at 641. "Evidence that
consumes an inordinate amount of time to present or answer, for example, might
tend to confuse or distract the jury from the main issues." Casey v. State, 215
S.W.3d 870, 880 (Tex. Crim. App. 2007). Here, the amount of time the State
devoted to developing the evidence was not insignificant. The State presented the
evidence through the live testimony of four witnesses—Schiele's parole officers,
Booker and Philp, the Polk County Sheriffs Office dispatcher, Terry Valka, and
the officer who conducted Schiele's interview, Captain Childers. The witnesses'
testimony about Schiele's parole spanned approximately 50 pages of the 118-page
reporter's record of the guilt and innocence phase of the trial. The State also
presented a recording of Schiele's eight-minute phone call with Philp and the
interview by Childers. The interview video lasted approximately 24 minutes and
the portions related to the parole lasted less than five minutes. Because a
significant portion of the evidence related to the challenged evidence regarding
18
parole, we conclude that the fourth and sixth factors weigh against admissibility.
Cf Blackwell v. State, 193 S.W.3d 1, 18 (Tex. App.—Houston [1st Dist.] 2006,
pet. refd) (factor neutral and favored neither admissibility nor exclusion of
evidence where four witnesses' testimony of extraneous offenses was not "unduly
lengthy").
Under the fifth factor, we weigh any tendency of the evidence to be given
undue weight by a jury that has not been properly equipped to evaluate the
probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. Here, the
charge contained a limiting instruction.2 Absent evidence to the contrary, a jury is
presumed to follow the instruction set forth in the court's charge. Herrera v. State,
11 S.W.3d 412, 415-16 (Tex. App.—Houston [1st Dist] 2000, pet. refd).
Further, the testimony relating to Schiele's parole, interview video, and phone call
recording were not scientific or technical in nature. Thus, "nothing suggests that
the jury was not equipped to evaluate the probative force" of the evidence, and we
conclude this factor weighs in favor of admissibility. See Moreno v. State, 409
S.W.3d 723, 731 (Tex. App.—Houston [1st Dist.] 2013, pet. refd) (fifth factor
2
The charge instructed: "[E]ven if you find that the State has proven, beyond a
reasonable doubt, the defendant's guilt of these other offenses, wrongs, or acts, if
any, you may only consider such evidence as evidence of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident, in
relation to the offense for which defendant is on trial or to rebut a defensive theory
of the case, and you may not consider these offenses, wrongs, or acts, if any, for
any other purpose."
10
weighs in favor of admissibility where evidence was not technical or scientific in
nature and was "comprehensible by laypeople").
In support of his argument that the probative value of this evidence was
substantially outweighed by the danger of unfair prejudice under Rule 403, Schiele
cites Powell v. State, 151 S.W.3d 646, 650-54 (Tex. App.—Waco 2004), rev'd,
189 S.W.3d 285. But the Court of Criminal appeals reversed that Waco Court of
Appeals decision as to the Rule 403 balancing test and held that the probative
value of the evidence was not substantially outweighed by the danger of unfair
prejudice. See Powell, 189 S.W.3d at 287-90. Accordingly, Powell does not
support Schiele's argument. See id.
We conclude that three of the Gigliobianco factors weigh in favor of
admissibility while three weigh against it. Accordingly, we conclude that the trial
court did not abuse its discretion in admitting the following challenged evidence:
that Schiele was on parole, failed to report to Philp on February 6 and February 7,
used methamphetamine on February 6, disconnected his electronic monitoring
device on February 7, and lied to Philp about why he failed to report on February 6
and February 7. See Powell, 189 S.W.3d at 289 (probative value of evidence was
not substantially outweighed by danger of unfair prejudice where jury was not
informed of crime for which appellant was on parole and State had significant need
?n
for evidence); Moses, 105 S.W.3d at 627 (trial court's admission of extraneous
offense evidence is reviewed for abuse of discretion).
Our analysis of the remaining challenged evidence—that Schiele missed an
anger management class on February 6 and had his parole revoked before February
6, 2012—is different. With respect to this evidence, we conclude that even if it
was error to admit it, the error would have been harmless in light of the other
admissible evidence relating to parole discussed above.
The jury considered evidence that Schiele was on parole at the time of the
fire, failed to report to Philp on February 6 and February 7, used methamphetamine
on February 6, disconnected his electronic monitoring device on February 7, and
lied to Philp about why he failed to report on February 6 and February 7. We have
held that the admission of this evidence was not an abuse of discretion. In light of
this other properly admitted evidence relating to parole, it is unlikely that the
additional fact that Schiele missed an anger management class and previously had
his parole revoked would impact the jury's decision. This is particularly true in
light of Philp's direct testimony that she warned Philp on February 6 that failing to
report on February 7 would lead her to request an arrest warrant. See Davis v.
State, 203 S.W.3d 845, 853 (Tex. Crim. App. 2006) (appellate court must
determine whether erroneous admission of inadmissible hearsay "moved the jury
from a state of non-persuasion to one of persuasion of a particular issue"); Motilla
71
v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (harmless error if jury's
decision likely was not adversely affected by the error); Wesbrook v. State, 29
S.W.3d 103, 119 (Tex. Crim. App. 2000) (reviewing court considers probable
impact of error on jury in light of existence of other evidence).
We overrule Schiele's second, third, fourth, fifth, sixth, seventh, eighth, and
ninth issues.
Admissibility of Prior Conviction in Punishment Phase
In his tenth issue, Schiele contends that the trial court erred in admitting,
during the punishment phase, evidence of a prior conviction for injury to a child
because the State failed to properly link the conviction to Schiele.
A. Standard of Review and Applicable Law
To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) the prior conviction exists, and
(2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007). "No specific document or mode of proof is required
to prove these two elements." Id. "There is no 'best evidence' rule in Texas that
requires the fact of a prior conviction be proven with any document, much less any
specific document." Id. The State may prove these two elements by documentary
proof, such as a judgment, that contains sufficient information to establish both the
7?
existence of a prior conviction and the defendant's identity as the person convicted.
Id. at 922.
The trier of fact considers the totality of the evidence admitted and attempts
to fit the evidentiary pieces of the puzzle together, weighing each piece's
credibility. Id. at 923. "Regardless of the type of evidentiary puzzle pieces the
State offers to establish the existence of a prior conviction and its link to a specific
defendant, the trier of fact determines if these pieces fit together sufficiently to
complete the puzzle." Id. If the two necessary elements "can be found beyond a
reasonable doubt, then the various pieces used to complete the puzzle are
necessarily legally sufficient to prove a prior conviction." Id.
B. Analysis
During the punishment phase, the State offered exhibits to prove its
enhancement allegations—a prior conviction for the felony offenses of burglary
and retaliation—as well as to prove Schiele's prior conviction for injury to a child
in Oklahoma. In support of Schiele's prior conviction for injury to a child, the
State offered: (1) a copy of the case summary, (2) a copy of the "plea of guilty
summary of facts," and (3) a copy of the judgment.
Schiele objected and argued that the copy of the case summary did not
contain a fingerprint or thumbprint, the plea record was not a certified copy and
o%
contained no thumbprint, and that the copy of the judgment was not a certified
copy, was not a public record, and contained no thumbprint.
But "[n]o specific document or mode of proof is required to prove these two
elements," see Flowers, 220 S.W.3d at 921, and we conclude that the trial court did
not err in admitting the evidence about which Schiele complains. The copy of the
case summary for the injury to a child case contains Schiele's name, date of arrest,
charged offense, judicial cause number, and disposition. The plea record contains
Schiele's name, birth date, the same judicial cause number as the case summary,
and the last four digits of Schiele's social security number. The judgment contains
Schiele's name, birth date, the same judicial cause number as the case summary
and plea record, and the same last four digits of Schiele's social security number as
the plea record. Further, Lucas, Schiele's wife, testified that Schiele was arrested
for injury to a child in Oklahoma and that the plea record states the charged offense
and the date of the arrest, which matches the date on the case summary.
Additionally, the trial court admitted penitentiary packets ("pen packs") containing
documents from the Texas Department of Criminal Justice. The pen packs include
documents relating to Schiele's other prior convictions and include Schiele's name
and birth date, which match the case summary, plea record, and judgment for his
injury to a child conviction. Based on the totality of the evidence, we hold that the
State produced evidence from which the jury rationally could link Schiele to the
74
«-» *i
injury to a child conviction beyond a reasonable doubt. See Flowers, 220 S.W.3d
at 921 (certified copy of computer printout from county clerk setting out prior
conviction with cause number and appellant's name, date of birth, address, and
social security number matching exhibit containing appellant's official driver's
license record was sufficient to prove existence of appellant's prior conviction);
Orsag v. State, 312 S.W.3d 105, 115 (Tex. App.—Houston [14th Dist.] 2010, pet.
refd) (factfinder considers totality of evidence to determine whether State proved
prior conviction beyond a reasonable doubt). Accordingly, the evidence is legally
sufficient to prove the prior convictions and enhancement allegation.
We overrule Schiele's tenth issue.
Conclusion
We affirm the trial court's judgment.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Higley, and Huddle.
Do not publish. Tex. R. App. P. 47.2(b).
7S
Schiele, Robert Earl
Combined Opinion