ACCEPTED
06-15-00042-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
8/31/2015 11:20:19 PM
No. 06-15-0042-CR, 06-15-0043-CR, 06-15-0044-CR, DEBBIE AUTREY
06-15-0045-CR, 06-15-0046-CR CLERK
IN THE COURT OF APPEALS FILED IN
6th COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT
TEXARKANA, TEXAS
AT TEXARKANA, TEXAS 9/1/2015 8:49:00 AM
DEBBIE AUTREY
Clerk
Richard Darby III, Appellant
v.
The State of Texas, State
Appealed from the 102nd Judicial District Court
Bowie County, Texas
BRIEF FOR THE STATE
The State Does Not Request Oral Argument
Respectfully submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
By: Lauren N. Sutton
Assistant District Attorney
601 Main Street
Texarkana, Texas 75501
Texas Bar No. 24079421
Attorneys for the State
In The Court of Appeals
For the Sixth Supreme Judicial District
At Texarkana, Texas
Richard Darby, § Nos. 06-15-0042-CR
Appellant § 06-15-0043-CR
§ 06-15-0044-CR
v. § 06-15-0045-CR
§ 06-15-0046-CR
The State of Texas, §
State § BRIEF FOR THE STATE
§
Identity of the Parties
The following is a complete list of all the parties to the trial court’s judgment
as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate
Procedure:
1. Defendant and Appellant:
Richard Darby III
2. Attorneys for Appellant on appeal:
Troy Hornsby
Attorney at Law
1725 Galleria Oaks Drive
Texarkana, Texas 75503
Troy.hornsby@gmail.com
3. Attorneys for Appellant at trial:
Will Williams
Bowie County Public Defender’s Office
i
4. Attorney for the State of Texas at trial:
Kelley Crisp
Assistant District Attorneys
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
5. Attorney for the State of Texas on appeal:
Lauren N. Richards
Assistant District Attorney
Texas Bar No. 24079421
601 Main Street
Texarkana, Texas 75501
Lauren.sutton@txkusa.org
6. Presiding Judge at trial:
The Honorable Bobby Lockhart
District Court Judge
102nd Judicial District
Bowie County, Texas
Bi-State Justice Building
100 North State Line Avenue
Texarkana, Texas 75501
ii
Table of Contents
Identity of the Parties and Counsel ......................................................................... i-ii
Table of Contents ................................................................................................. iii-iv
Index of Authorities ............................................................................................ v-viii
Statement of the Case................................................................................................. 1
Reply to Points of Error ......................................................................................... 2-3
Argument.............................................................................................................. 4-28
Reply to Point of Error Number One ................................................ 4-8
The trial court did not abuse its discretion in allowing the
introduction of evidence that the Appellant had committed two
unadjudicated sexual assaults.
Reply to Point of Error Number Two ............................................. 9-14
The trial court did not err in admitting evidence of two
unadjudicated sexual assaults because the evidence’s probative
value was not outweighed by its prejudicial effect.
Reply to Point of Error Number Three ......................................... 15-20
The evidence of the Appellant’s conversation regarding a plan
to escape from jail was properly admitted to rebut his own
testimony.
Reply to Point of Error Number Four ........................................... 21-24
The State laid the proper foundation for the admission of the
jail conversation recording.
Reply to Point of Error Number Five ............................................ 24-27
The offense of Evading Arrest with a Motor Vehicle is a third
degree felony, therefore the Appellant was properly convicted
of a third degree felony on that charge.
iii
Reply to Points of Error Number Six, Seven and Eight................ 27-28
The typographical errors in the judgments of conviction may be
corrected via a Judgment Nunc Pro Tunc or reformation of the
judgment by this Court.
Prayer for Relief ....................................................................................................... 28
Certificate of Compliance ........................................................................................ 29
Certificate of Service ............................................................................................... 30
iv
Index of Authorities
Cases
Adetomiwa v. State, 421 S.W.3d 922 (Tex. App.—Fort Worth 2014, no pet.) .26, 27
Arnold v. State, 7 S.W.3d 832 (Tex. App.—Eastland 1999, pet. ref’d) .................... 5
Autry v. State, 27 S.W.3d 177 (Tex. App.—San Antonio 2000, pet. ref’d) .............. 5
Davis v. State, 315 S.W.3d 908 (Tex. App.—Houston[14th Dist.] 2010) ................. 7
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)............................12,16
Goodwin v. State, 91 S.W.3d 912 (Tex. App—Fort Worth 2002, no pet.) .......... 6,16
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) .................................... 19
Joiner v. State, 825 S.W.2d 701 (Tex. Crim. App. 1992) ....................................... 11
Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996) ........................................ 11
Kephart v. State, 875 S.W.2d 319 (Tex.Crim.App.1994) ....................................... 22
Lincicome v. State, 3 S.W.3d 644 (Tex. App.—Amarillo 1999, no pet.)..........6,9,16
Love v. State, 861 S.W.2d 899 (Tex. Crim. App. 1993) ............................................ 9
Malpica v. State, 108 S.W.3d 374 (Tex. App.—Tyler 2003) ................................. 4,5
Matz v. State, 21 S.W.3d 911 (Tex. App.—Fort Worth 2000) ................................ 19
McDaniel v. State, 3 S.W.3d 176 (Tex. App.—Fort Worth 1999, pet. ref’d) ........ 6,9
Mitchell v. State, 931 S.W.2d 950 (Tex.Crim.App.1996) ...................................... 6,7
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ..................6,9,15,21
Morales v. State, 389 S.W.3d 915 (Tex. App—Houston [14th Dist.] 2013) ........... 17
v
Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) .................................13,17
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................ 19
Phelps v. State, 999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d) .............. 16
Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002) ...................................... 16
Robinson v. State, 35 S.W.3d 257 (Tex. App.—Texarkana 2000, pet. ref’d) .9,15,22
Rogers v. State, 991 S.W.2d 263 (Tex. Crim. App. 1999) ...................................... 11
Salazar v. State, 87 S.W.3d 680 (Tex. App.—San Antonio 2002, no pet.) .............. 6
Sherman v. State, 20 S.W.3d 841 (Tex. App.—Texarkana 2000, no pet.)................ 9
Shugart v. State, 32 S.W.3d 355 (Tex. App.—Waco 2000, pet. ref’d) ................... 19
Taylor v. State, 93 S.W.3d 487 (Tex. App—Texarkana 2002, pet. ref’d.) ............... 6
Thompson v. State, 4 S.W.3d 884 (Tex. App—Houston [1st Dist] 1999, pet. ref’d)5,7
Washington v. State, 943 S.W.2d 501 (Tex. App.—Fort Worth, 1997) .................. 19
Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)......................6,9,15,22
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000).................................... 19
Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) ........................................ 6
Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009) ................................... 21
Wilder v. State, 111 S.W.3d 249, 255 (Tex. App.—Texarkana 2003, pet. ref’d) ... 15
vi
Texas Legislative Acts
Act of May 23, 2011, 82nd Leg., R.S., ch. 391, § 1 2011 Tex. Sess. Law Serv. 1046
(Senate Bill 496) ...................................................................................................... 25
Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011, Tex. Sess. Law. Serv.
2110, 2111(House Bill 3423) ................................................................................... 25
Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Sess. Law Serv.
2320, 2321 (Senate Bill 1416) ................................................................................. 25
Rules of Appellate Procedure
Tex. R. App. Proc. 44.2(a) ..................................................................................13,19
Tex. R. App. Proc. 44.2(b) ..................................................................................13,19
Rules of Evidence
Tex. R. Evid. 403 ..................................................................................................... 10
Tex. R. Evid. 901(b)............................................................................................... 222
Texas Code of Criminal Procedure
Tex. Code Crim. Proc. art. 37.07 § 3(a)..................................................................... 6
Tex. Code Crim. Proc. art. 37.07 § 3(g) ............................................................10, 17
Tex. Code Crim. Proc. art. 38.14 ............................................................................... 6
vii
Texas Government Code
Tex. Gov’t Code § 311.025(b) ................................................................................. 26
Texas Penal Code
Tex. Penal Code § 38.04(b) ................................................................................24,25
viii
Statement of the Case
Appellant, Richard Darby III, pled guilty to three counts of Aggravated
Robbery, one count of Evading Arrest with a Motor Vehicle, and one count of
Theft over $1,500 but less than $20,000. The Appellant requested that a jury assess
his punishment for the convictions. The jury assessed punishment at forty-five (45)
years on all three Aggravated Robbery charges, ten (10) years on the Evading
Arrest with a Motor Vehicle charge, and 2 years on the Theft charge. The Judge
sentenced the Appellant accordingly with all sentences imposed to run
concurrently. Appellant then perfected appeal to this Honorable Court. He now
appeals the punishment verdict of the trial court on eight points of error.
1
Reply to Points of Error
REPLY TO POINT OF ERROR NUMBER ONE:
The trial court did not abuse its discretion in allowing the introduction
of evidence that the Appellant had committed two unadjudicated
sexual assaults.
REPLY TO POINT OF ERROR NUMBER TWO:
The trial court did not err in admitting evidence of two unadjudicated
sexual assaults because the evidence’s probative value was not
outweighed by its prejudicial effect.
REPLY TO POINT OF ERROR NUMBER THREE:
The evidence of the Appellant’s conversation regarding a plan to
escape from jail was properly admitted to rebut his own testimony.
REPLY TO POINT OF ERROR NUMBER FOUR:
The State laid the proper foundation for the admission of the jail
conversation recording.
REPLY TO POINT OF ERROR NUMBER FIVE:
The offense of Evading Arrest with a Motor Vehicle is a third degree
felony, therefore the Appellant was properly convicted of a third
degree felony on that charge.
2
REPLY TO POINT OF ERROR NUMBER SIX, SEVEN AND EIGHT:
The typographical errors in the judgments of conviction may be
corrected via a Judgment Nunc Pro Tunc or reformation of the
judgment by this Court.
3
Argument
Reply to Points of Error One
The trial court did not abuse its discretion in allowing the
introduction of evidence that the Appellant had committed two
unadjudicated sexual assaults.
At the punishment trial of the Appellant, the State introduced testimony and
evidence that the Appellant had committed an offense while being housed in jail at
the Bi-State Justice Center, where he was awaiting trial. Appellant was charged
and indicted for two counts of sexual assault. Appellant challenges the sufficiency
of the evidence presented by the State. He argues that it is not sufficient to
establish he committed the extraneous offense of sexual assault beyond a
reasonable doubt.
Argument and Authorities
A. Standard of Review
Although the same reasonable doubt standard required for conviction also
applies at the punishment stage to the proof of the accused’s extraneous acts of
misconduct, there is no comparable sufficiency review of the extraneous offense
evidence introduced at punishment.1 Moreover, the reasonable doubt standard as
applied to extraneous offenses at punishment lacks many of the procedural
protections that reinforce its application at the guilt-innocence phase of trial. The
1
Malpica v. State, 108 S.W.3d 374, 378 (Tex. App.—Tyler 2003)
4
State has no burden to prove any particular elements of the extraneous offenses,
and the jury need not be instructed on the elements of the extraneous offenses.2
In his first point of error, the Appellant quotes testimony of the witnesses of
the extraneous offense and summarily states that the evidence was “not sufficient
to establish that Darby was responsible beyond a reasonable doubt” and therefore
“inadmissible pursuant to Texas Code of Criminal Procedure article 37.07”
The only review possible of the sufficiency of the proof of extraneous
offense evidence introduced during punishment is a review under an abuse of
discretion standard of the trial judge’s threshold ruling on admissibility.3 One of
the reasons for not reviewing the sufficiency of the evidence to support extraneous
offenses raised during punishment is because there is no actual finding by the jury
that the defendant committed the extraneous offense.4 A reviewing court cannot
determine whether the jury found beyond a reasonable doubt that appellant was
criminally responsible for the extraneous offense; nor can it determine if any such
finding even affected the jury's determination of punishment.5
2
See, e.g., Autry v. State, 27 S.W.3d 177, 181 (Tex. App.—San Antonio 2000, pet. ref’d);
Arnold v. State, 7 S.W.3d 832, 834 (Tex. App.—Eastland 1999, pet. ref’d).
3
Malpica, 108 S.W.3d at 379.
4
See Thompson v. State, 4 S.W.3d 884, 886 (Tex. App—Houston [1st Dist] 1999, pet. ref’d).
5
See Id.
5
Turning to the applicable standard of review, a trial court has considerable
discretion in determining whether to admit or exclude evidence.6 An appellate
court reviews the trial court's decision to admit extraneous offense evidence under
the abuse of discretion standard.7 An abuse of discretion occurs only when the trial
court acts arbitrarily or unreasonably without reference to any guiding rules or
principles.8 Even if the reviewing court might have reached a different result, the
court must uphold the trial court’s decision to admit or exclude evidence if it was
within the “zone of reasonable disagreement.”9 Proof of extraneous offenses by
accomplice testimony need not be corroborated.10
B. Application of Law to Facts
Article 37.07, section 3(a) provides that the State may introduce “evidence
of an extraneous crime or bad act that is shown beyond a reasonable doubt by
evidence to have been committed by the defendant.”11 The Court of Criminal
6
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990 (op. on reh’g); McDaniel v.
State, 3 S.W.3d 176, 180 (Tex. App.—Fort Worth 1999, pet. ref’d).
7
See Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App.1996).
8
Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d); see Montgomery, 810 S.W.2d at 372.
9
Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Montgomery, 810 S.W.2d
at 391); Weatherred, 15 S.W.3d at 542; Taylor v. State, 93 S.W.3d 487, 505-506 (Tex. App—
Texarkana 2002, pet. ref’d.); Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App—Fort Worth
2002, no pet.).
10
See Salazar v. State, 87 S.W.3d 680, 684 (Tex. App.—San Antonio 2002, no pet.); Tex. Code
Crim. Proc. art. 38.14.
11
Tex. Code Crim. Proc. art. 37.07 § 3(a).
6
Appeals has made clear that the beyond-a-reasonable-doubt standard of this statute
is the same as that applied during the guilt-innocence phase.12
Appellant argues that the trial court should have made an initial finding of
proof beyond a reasonable doubt that the defendant has committed the bad act as
alleged as a prerequisite to admissibility during the punishment phase. However,
under this statute, the trial court is deemed the authority on the threshold issue of
admissibility of relevant evidence during the punishment phase of a trial, while the
jury, as the “exclusive judge of the facts,” determines whether or not the burden of
proof for those offenses presented has been satisfied by the party offering the
evidence.13 In conducting its inquiry as to admissibility, the court determines
whether the evidence is relevant and whether “the jury could reasonably find
beyond a reasonable doubt that the defendant committed the extraneous offense.”14
That is the question to this Court on appeal as to point of error number one.
Ultimately, the fact finder must decide whether the extraneous offense was proven
beyond a reasonable doubt.15
12
See Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996) (“When evidence of
extraneous offenses has been offered, regardless of the respective phase of a trial, the law
requires that it be proved beyond a reasonable doubt”).
13
See Mitchell, 931 S.W.2d at 953; Thompson v. State, 4 S.W.3d 884, 886 (Tex.App.—Houston
[1st Dist.] 1999, pet. ref'd).
14
Thompson, 4 S.W.3d at 886 (citing Harrell v. State, 884 S.W.2d 154, 160–61
(Tex.Crim.App.1994))
15
Davis v. State, 315 S.W.3d 908, 914 (Tex. App.—Houston[14th Dist.] 2010), rev’d on other
grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011).
7
Prior to opening statements, the trial court held a hearing based on the
Appellant’s objections to evidence being introduced of the pending charges of
sexual assault. (R.R. Vol. 6, p. 5). During arguments as to the admissibility of the
evidence, the State provided the court with a brief rendition of what the evidence
presented would show. (R.R. Vol. 6, p. 17-18). The trial court was also aware of
the State’s Notice of Extraneous Offenses and that the two sexual assaults were
included in that notice to the Defense. (R.R. Vol. 6, p. 18). After hearing lengthy
arguments from both sides, the trial court determined that the evidence of the
sexual assaults was relevant, and also admissible under Texas Rule of Evidence
403. (R.R. Vol. 6, p. 32-33).
Based on the proffer made by the state, as well as the filings the court was
aware of, the trial court implicitly made the finding that the jury could reasonably
find beyond a reasonable doubt that the defendant committed the extraneous
offense.
Should this court decide the proffer made at the time of the court’s ruling
was insufficient, the evidence that the State presented at trial beyond the proffer is
sufficient to support a finding beyond a reasonable doubt that Appellant committed
the extraneous offenses. Therefore it was not error for the trial court to allow the
introduction of the evidence during the punishment trial.
For these reasons, Appellant’s first point of error should be overruled.
8
Reply to Point of Error Two
The trial court did not err in admitting evidence of two unadjudicated
sexual assaults because the evidence’s probative value was not
outweighed by its prejudicial effect.
Argument and Authorities
Appellant challenges the trial court's ruling on the introduction of two
unadjudicated sexual assaults committed by the Appellant while he was housed in
the Bowie County Correctional Facility on other charges. However, the
A. Standard of Review
A trial court has considerable discretion in determining whether to admit or
exclude evidence.16 When considering whether a trial court’s decision to admit or
exclude evidence is error, an appellate court must determine whether the trial court
abused that discretion.17 This inquiry depends on the facts of each case.18 An abuse
of discretion occurs only when the trial court acts arbitrarily or unreasonably
without reference to any guiding rules or principles.19
16
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990 (op. on reh’g); McDaniel v.
State, 3 S.W.3d 176, 180 (Tex. App.—Fort Worth 1999, pet. ref’d).
17
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d).
18
Love v. State, 861 S.W.2d 899, 904 (Tex. Crim. App. 1993); Sherman v. State, 20 S.W.3d 841,
847 (Tex. App.—Texarkana 2000, no pet.).
19
Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d); see Montgomery, 810 S.W.2d at 372.
9
B. Application of Law to Facts
Texas Code of Criminal Procedure 37.07 states that during the punishment
phase of trial, the court may admit any evidence as to:
“any matter the court deems relevant including but not limited to the
prior criminal record of the defendant . . . any other evidence of an
extraneous crime or bad act that is shown beyond a reasonable doubt
by evidence to have been committed by the defendant…”
Prior to the presentation of evidence during the punishment trial, the court held
a hearing to determine the admissibility of the two unadjudicated sexual assaults.
(R.R. Vol. 6, p. 6). The Appellant argued to the trial court that even though the
evidence had “pretty good” probative value, the State did not need the evidence
because he was currently under indictment for the conduct and in this opinion the
State could try him for that conduct in another trial. (R.R. Vol. 6, p. 8). Appellant
also argued the evidence would have a tendency to suggest a decision on an
improper basis because of the nature of the conduct. (R.R. Vol. 6, p. 9). Appellant
went as far to say that if the trial court allowed the evidence it “probably wouldn’t
be reversible error,” but claimed it would still be harmful. (R.R. Vol. 6, p. 9-10)
The trial court overruled the Appellant’s 403 objection and allowed the State to
present the evidence. (R.R. Vol. 6, p. 33).
Under Texas Rule of Evidence 403, evidence is properly excluded when “its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
10
delay, or needless presentation of cumulative evidence.” Rule 403 favors the
admission of relevant evidence and carries a presumption that relevant evidence
will be more probative than prejudicial.20
Unfair prejudice refers to “an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily an emotional one.”21 All
testimony and evidence will be prejudicial to one party or the other. 22 It is only
when there is a clear disparity between the degree of prejudice of the offered
evidence and its probative value that Rule 403 is applicable.23
The evidence presented that the Appellant committed the offense of sexual
assault while housed in the jail was not so prejudicial as to require exclusion. The
jury is entitled to hear evidence that while incarcerated on his aggravated robbery,
evading, and theft charges, he was committing other offenses. Had the Appellant
been a model prisoner while being housed in the jail, he would have necessarily
been permitted to bring that evidence to the jury at the punishment phase of the
trial. The fact that while incarcerated the Appellant continued to commit bad acts
and criminal offenses against his fellow prisoners is helpful to the jury in its
determination of an appropriate sentence.
20
Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).
21
Rogers v. State, 991 S.W.2d 263, 366 (Tex. Crim. App. 1999).
22
See Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992).
23
Jones, 944 S.W.2d at 653.
11
This court should review the following four factors in conducting the Rule 403
balancing test: (1) how compellingly the evidence serves to make a fact of
consequence more or less probably, (2) the potential to impress the jury on some
irrational basis, (3) the time needed to develop the evidence, and (4) the force of
the proponent’s need for the evidence.24 As to the first factor- the evidence of the
Appellant’ continued criminal behavior while incarcerated was relevant probative
to the Appellant’s moral blameworthiness and was helpful to the jury in
determining the appropriate punishment. In regards to the second factor, the
evidence was not an appeal to improper emotion or a confusion of the issues. On
the third factor, the testimony of the victim and two other co-defendants was rather
lengthy, but the nature of the offense and number of perpetrators make the subject
matter especially complex, and it was not solely the State’s examination of the
witnesses, but also the Appellant’s cross-examination which took a substantial
amount of time. In regards to the final factor, the evidence was not cumulative of
any other evidence admitted in the punishment trial. In addition, in a punishment
trial the State will always want to show that the offender shows a continuing threat.
The evidence of the assaults in the jail showed just that. These four factors weigh
in favor of admissibility. While the extraneous acts were prejudicial to the
Appellant, they were not unfairly prejudicial.
24
De La Paz v. State, 279 S.W.3d 336, 348-49 (Tex. Crim. App. 2009).
12
C. Harm Analysis
Assuming arguendo that the trial court erred by admitting evidence that the
Appellant had committed the sexual assault offenses in the jail, such error does not
constitute reversible error.
Under Rule 44.2(b) non-constitutional error must be disregarded if it does
not affect the appellant’s substantial rights.25 A substantial right is affected when
the error had a “substantial and injurious effect or influence in determining the
jury’s verdict.”26 To assess the likelihood that the jury's decision was adversely
affected by the erroneous admission of evidence, the reviewing court considers the
entire record, including the other evidence admitted, the nature of the evidence
supporting the verdict, and the character of the error in light of the other evidence
in the case.27 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.”28 We also consider the arguments of counsel and the
extent to which the State emphasized the improper evidence.29
In the instant case, a review of the record as a whole assures this Court that
any erroneous admission of evidence that the Appellant committed the charged
25
Tex. R. App. Proc. 44.2(b)
26
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Johnson v. State, 967 S.W.2d
410, 417 (Tex. Crim. App. 1998); Shugart v. State, 32 S.W.3d 355, 363 (Tex. App.—Waco
2000, pet. ref’d); Matz v. State, 21 S.W.3d 911, 912(Tex. App.—Fort Worth 2000).
27
See Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002).
28
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).
29
See Motilla v. State, 78 S.W.3d at 357.
13
offenses of sexual assault while he was in jail did not influence the jury in its
determination of Appellant’s guilt, or had but a slight effect.
The sentences handed down by the jury are evidence of this fact. The
Appellant pled guilty to three counts of aggravated robbery, one count of evading
arrest with a motor vehicle, and one count of theft over $1,500 but under $20,000.
The three counts of aggravated robbery were all first degree felonies, which are
punishable by 5-99 years or life in the penitentiary. The offense of evading arrest
with a motor vehicle is a third degree felony, punishable by no more than 10 years
and not less than 2 in the penitentiary. The offense of theft is punishable as a state
jail felony, carrying a sentence of no more than two years but not less than 6
months in a state jail facility. The Appellant was sentenced to 45 years for each of
the first degree felonies. He was sentenced to 10 years on the evading charge and 2
years for the theft. The fact that the jury gave 45 year sentences for three counts of
aggravated robbery, none of which occurred during the same criminal episode,
indicates they exercised some leniency, as opposed to showing they made their
decision on punishment on some improper basis. This goes to prove that the
evidence of the unadjudicated sexual assaults did not influence the jury in its
determination of the Appellant’s punishment.
For these reasons, Appellant’s second point of error should be overruled.
14
Reply to Point of Error Three
The evidence of the Appellant’s conversation regarding a plan to
escape from jail was properly admitted to rebut his own testimony.
Argument and Authorities
In his third point of error, the Appellant complains that the trial court
allowed the admission of a discussion between Appellant and his father about a
plan to escape. Appellant argues the evidence should have been excluded by the
trial court because the State did not give timely notice of the extraneous offense
evidence and the evidence was inadmissible as rebuttal to Appellant’s own
evidence that he was remorseful for his actions.
A. Standard of Review
The trial court has wide discretion in deciding whether to admit or exclude
evidence.30 When considering whether a trial court’s decision to admit or exclude
evidence is error, an appellate court must determine whether the trial court abused
that discretion.31 This inquiry depends on the facts of each case.
When reviewing a trial court’s decision to admit or exclude evidence, an
appellate court must afford great deference to the trial court’s balancing
determination and should reverse a trial court “rarely and only after a clear abuse
30
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Wilder v. State, 111
S.W.3d 249, 255 (Tex. App.—Texarkana 2003, pet. ref’d).
31
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d).
15
of discretion.”32 An abuse of discretion occurs only when the trial court acts
arbitrarily or unreasonably without reference to any guiding rules or principles.33
Even if the reviewing court might have reached a different result, the court must
uphold the trial court’s decision to admit or exclude evidence if it was within the
“zone of reasonable disagreement.”34 A trial court’s evidentiary ruling must be
upheld if it was correct under any theory of law applicable to the case.35
B. Application of Law to Facts
Appellant’s complaint on appeal in regards to this specific evidence is two-
fold. His complaint is that (1) the State did not comply with the notice requirement
of article 37.07 and (2) that the State was required to comply with the notice
requirement because the evidence was not proper rebuttal evidence. However, the
evidence of a discussion of an escape was properly offered on rebuttal and
therefore the Appellant was not entitled to notice of the evidence. In addition, due
to the nature of the evidence and how it came to light during trial, the State did
properly apprise the defendant as soon as practicable that it intended to introduce
the evidence.
32
Robbins v. State, 88 S.W.3d 256, 262 (Tex. Crim. App. 2002).
33
Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d)
34
Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Montgomery, 810
S.W.2d at 391); Weatherred, 15 S.W.3d at 542; Taylor v. State, 93 S.W.3d 487, 505-506 (Tex.
App—Texarkana 2002, pet. ref’d.); Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App—Fort
Worth 2002, no pet.).
35
De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
16
After the defense rested its case, the trial court inquired of the State as to
what defensive evidence the State intended to rebut. (R.R. Vol. 7, p. 199). The
State informed the trial court it would “rebut the testimony of the defendant that he
is remorseful, that he is willing to accept responsibility for these acts, that he is
willing to accept punishment that the jury gives him.” (R.R. Vol. 7, p. 200). The
State told the court that there was a recording made from a conversation the
Appellant had with his father the night before where the Appellant “tried to get his
father to assist him in breaking out of Court today.” (R.R. Vol. 7, p. 200).
The State must give notice of its intention to introduce evidence during
punishment of other extraneous offenses committed by the defendant if a timely
request is made.36 The Appellant made the proper request and the State sent proper
Notice of its intention to introduce evidence of extraneous offenses of the
Appellant prior to trial. This notice requirement with respect to the state's
introduction of evidence of an extraneous crime or bad act apply only to evidence
presented during the State's case-in-chief, not during cross-examination or
rebuttal.37 It is important to note that when the State supplied this notice to the
Appellant, and up until the day the evidence was introduced, the evidence was not
in existence and was unknown to the State because it was a conversation the
Appellant had with his father during the trial which was recorded.
36
Tex. Code Crim. Proc. art. 37.07 § 3(g).
37
Morales v. State, 389 S.W.3d 915, 920 (Tex. App—Houston [14th Dist.], 2013).
17
In the present case, the State was not aware what the Appellant would testify
to. The fact that he took the witness stand and repeatedly said he was remorseful
and wanted to take responsibility for his actions compelled the State present
rebuttal that he was indeed not remorseful or willing to take responsibility for his
actions. The Appellant stated it was his “goal” to “accept whatever the jury’s
punishment is as a man and take [sic] responsibility.” (R.R. Vol. 7, p. 183).
This was not an attempt by the State to circumvent the notice requirement of
article 37.07. The State was not avoiding the mandatory notice requirements, the
evidence was only ‘created’ the night before when the Appellant had the
conversation with his father and was made known to the State during the course of
the day. The State informed the trial court they were only made aware of the
recording during the lunch hour. (R.R. Vol 7, p. 205).
The evidence was offered not just to rebut the remorsefulness of the
Appellant, but also his statement that he wished to take responsibility for his
actions and accept the punishment of the jury. Very little else, besides a plan to
escape imprisonment, would be better rebuttal evidence of someone’s claims that
they are accepting responsibility and the ensuing punishment. This evidence was
proper to rebut the Appellant’s testimony. Article 37.07 does not require the State
18
to give notice of rebuttal evidence.38 Therefore it was not an abuse of discretion for
the trial court to allow the introduction of the evidence.
C. Harm Analysis
Should this Court find that the trial court erred by allowing introduction of
the extraneous offense evidence, such error does not constitute reversible error.
Under Rule 44.2(b) non-constitutional error must be disregarded if it does
not affect the appellant’s substantial rights.39 A substantial right is affected when
the error had a “substantial and injurious effect or influence in determining the
jury’s verdict.”40 To assess the likelihood that the jury's decision was adversely
affected by the erroneous admission of evidence, the reviewing court considers the
entire record, including the other evidence admitted, the nature of the evidence
supporting the verdict, and the character of the error in light of the other evidence
in the case.41 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.”42 The reviewing court will also consider the
38
Washington v. State, 943 S.W.2d 501, 506 (Tex. App.—Fort Worth, 1997).
39
Tex. R. App. Proc. 44.2(b)
40
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Johnson v. State, 967 S.W.2d
410, 417 (Tex. Crim. App. 1998); Shugart v. State, 32 S.W.3d 355, 363 (Tex. App.—Waco
2000, pet. ref’d); Matz v. State, 21 S.W.3d 911, 912(Tex. App.—Fort Worth 2000).
41
See Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002).
42
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).
19
arguments of counsel and the extent to which the State emphasized the improper
evidence.43
In the interest of being concise, the State would incorporate its prior harm
analysis arguments, as to the total lack of harm suffered by the Appellant which is
demonstrated by the sentences he received from the jury. The Appellant was
sentenced three forty-five years for a first degree felony. The punishment range for
a first degree felony is 5-99 years or life in the Texas Department of Criminal
Justice. Any reasonable juror could have reasonably sentenced the Appellant to
forty-five years based solely on three instances of Aggravated Robbery, as well as
ten years for the evading charge and two years for the theft, absent any prior bad
acts or extraneous offenses.
Based on a review of the evidence presented during the punishment phase,
this court can have assurances that any error did not contribute to the punishment
verdict beyond a reasonable doubt.
For these reasons, Appellant’s third point of error should be overruled.
43
See Motilla v. State, 78 S.W.3d at 357.
20
Reply to Point of Error Four
The State laid the proper foundation for the admission of the jail
conversation recording.
Argument and Authorities
In his fourth point of error, the Appellant complains that the trial court
erroneously allowed the admission of a discussion between Appellant and his
father about a plan to escape because the State did not lay a proper foundation for
its introduction. Appellant argues the evidence should have been excluded by the
trial court because the State did not give timely notice of the extraneous offense
evidence and the evidence was inadmissible as rebuttal to Appellant’s own
evidence that he was remorseful for his actions.
A. Standard of Review
Reviewing courts use the abuse-of-discretion standard to review a trial
court's rulings on objections to admissibility of evidence.44 The trial court has wide
discretion in deciding whether to admit or exclude evidence.45 When considering
whether a trial court’s decision to admit or exclude evidence is error, an appellate
44
Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex.2009).
45
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Wilder v. State, 111
S.W.3d 249, 255 (Tex. App.—Texarkana 2003, pet. ref’d).
21
court must determine whether the trial court abused that discretion.46 This inquiry
depends on the facts of each case.
B. Application of Law to Facts
Rule 901 of the Texas Rules of Evidence provides that “the requirement of
authentication ... as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” Here, the admissibility of the recording was dependent upon the State's
ability to show that it depicted the voices of Appellant and his father. The State,
therefore, “was required to furnish testimony of some witness who could verify
that the recording was what the State claimed it to be.”47
The Appellant complains that the State failed to properly authenticate the
telephone recording under Texas Rule of Evidence 901. The portions of the record
that the Appellant cites to support his argument took place outside the presence of
the jury. (R.R. Vol. 7, p. 226). The following day, Lieutenant Keith Chestnutt
testified he that he is familiar with the voice of the Appellant’s father, Richard
Darby, Jr. (R.R. Vol. 8, p.15). Chestnutt also testified that he can identify the voice
of the Appellant. (R.R. Vol. 8, p. 16). He also testified that he had listened to the
recorded conversation and could identify the two voices as the Appellant and his
46
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d).
47
Kephart v. State, 875 S.W.2d 319, 322 (Tex.Crim.App.1994).
22
father. (R.R. Vol. 8, p. 17). The State then questioned Chief Deputy Jeff Neal.
(R.R. Vol. 8, p. 17). Neal testified each inmate at the Bowie County Correctional
Facility is given an individual six-digit number and also a four-digit PIN number,
which they use for the phone system in the jail. (R.R. Vol. 8, p. 19). Neal testified
that the visitation log at the jail indicated that at nine o’clock p.m. one evening
during the week of trial, the Appellant’s father visited the Appellant in jail. (R.R.
Vol. 8, p. 21). Neal testified he has listened to the full recording as well as the
edited recording and that other than being edited to include the pertinent
conversation, the recording had not been tampered with or altered in any way.
(R.R. Vol. 8, p. 22). He further stated that the system in the jail is capable of
making an accurate recording. (R.R. Vol. 8, p. 22). The Appellant then objected
that the proper foundation had not been laid because the individual numbers
assigned to the Appellant had not been admitted into evidence and proven up.
(R.R. Vol. 8, p. 23-24). The trial court overruled the objection and the recording
was played for the jury. (R.R. Vol. 8, p. 24).
Appellant claims that the recording was not properly authenticated because
Neal did not testify that the phone call was attached to the Appellant through the
system. It is important to note this was an in-person visitation and not a telephone
conversation.
23
The State properly authenticated the recording through the testimony of both
Keith Chestnutt and Jeff Neal. Therefore it was not error for the trial court to allow
the admission of the recording.
For these reasons, Appellant’s fourth point of error should be overruled.
Reply to Point of Error Five
The offense of Evading Arrest with a Motor Vehicle is a third degree
felony, therefore the Appellant was properly convicted of a third
degree felony on that charge.
Argument and Authorities
In his fifth point of error, the Appellant complains he was wrongfully
convicted of a third degree felony for the offense of evading arrest with a motor
vehicle. Appellant pled guilty to evading arrest with a motor vehicle and now
complains on appeal that the offense is not a third degree felony, but only
punishable as a state jail felony.
A. Application of Law to Facts
Section 38.04 of the Texas Penal Code addresses the offense of evading
arrest or detention. Two versions of section 38.04(b) were enacted in 2011.
The first version provides that evading arrest or detention is:
(1) A state jail felony if:
(A)The actor has been previously convicted under this section;
24
(B) The actor uses a vehicle or watercraft while the actor is in flight
and the actor has not previously convicted under this secion;
(2) A felony of the third degree if:
(A)The actor uses a vehicle or watercraft while the actor is in flight
and the actor has been previously convicted under this
section.48
The second version provides that the offense is:
(1) A state jail felony if the actor has been previously convicted under
this section;
(2) A felony of the third degree if:
(A)The actor uses a vehicle while the actor is in flight49
The Appellant’s argument regarding the purported conflict in the statutory
amendments has been rejected by every appellate court which has considered it,
because the Code Construction Act provides that “if amendments to the same
statute are enacted at the same session of the legislature, one amendment without
reference to another, the amendments shall be harmonized, if possible, so that
48
See Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011, Tex. Sess. Law. Serv. 2110,
2111(House Bill 3423); see also Act of May 23, 2011, 82nd Leg., R.S., ch. 391, § 1 2011 Tex.
Sess. Law Serv. 1046 (Senate Bill 496).
49
Tex. Penal Code § 38.04(b); see Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex.
Sess. Law Serv. 2320, 2321 (Senate Bill 1416).
25
effect may be given to each”; and “[i]f the amendments are irreconcilable, the
latest in date of enactment prevails.50
The Fort Worth Court of Appeals has concluded that the versions are
reconcilable.51 The Court explained that Senate Bill 496 and House Bill 3423
reenacted the previous punishment scheme and “made a single substantive change
9 to section 38.04, adding the terms ‘watercraft’ and ‘federal special investigator,’
respectively, to the statutory language of section 38.04.”52 Only Senate Bill 1416
altered the punishment scheme “to provide, among other things, that evading arrest
is a third degree felony if the actor uses a vehicle in flight (regardless of whether
the actor has been previously convicted of evading arrest).”53 The Court explained:
Senate Bill 1416 made more extensive amendments, altering the
punishment scheme. Although none of the amendments recited
section 38.04 at full length or stated that it was reenacting the statute,
the amendments reenacted and published the bulk of the statute “so
that [the amendments’] meaning[s] may be known without the
necessity of examining the statute amended.” Because each
amendment makes substantive changes that the other does not, the
amendments are reconcilable. That is, harmonizing all three
amendments to give effect to each, Senate Bill 1416 amended the
punishment scheme of section 38.04 to provide that evading arrest is a
third degree felony if the actor uses a vehicle in flight.54
50
Tex. Gov’t Code § 311.025(b).
51
Adetomiwa v. State, 421 S.W.3d 922, 926 (Tex. App.—Fort Worth 2014, no pet.).
52
Id.
53
Id.
54
Id. at 926-27 (internal citations omitted).
26
The Court added that, even if the amendments were irreconcilable, Senate
Bill 1416 was the latest of the three bills to be enacted and would prevail over
earlier bills.55
Following the reasoning of the other appellate courts, this Court can find that
the versions are reconcilable, and that evading arrest or detention with a motor
vehicle is a third-degree felony if the actor uses a motor vehicle while in flight,
regardless of whether the actor has a previous conviction for evading arrest.
Appellant cites no persuasive authority as to why this Court should not come
to the same conclusion as its sister courts.
For these reasons, Appellant’s fifth point of error should be overruled.
Reply to Point of Error Six, Seven, and Eight
The typographical errors related to the Appellant pleading guilty to
the offense is may be corrected via a Judgment Nunc Pro Tunc or
reformation of the judgment by this Court.
Argument and Authorities
In his sixth, seventh, and eighth points of error, the Appellant complains of a
typographical error on his judgments. They incorrectly reflect that he was found
guilty by a jury, as opposed to pleading guilty. The State concedes to this
typographical error and has submitted a Judgment Nunc Pro Tunc to the trial court
55
Adetomiwa, 421 S.W.3d. at 927.
27
for signature. It is also well within this Court’s authority to reform the judgment of
these charges to reflect the correction.
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, there being legal and
competent evidence sufficient to justify the conviction and punishment assessed in
this case and no reversible error appearing in the record of the trial of the case, the
State of Texas respectfully prays that this Honorable Court affirm the judgment
and sentence of the trial court below.
Respectfully Submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
__/s/Lauren N. Sutton____________
By: Lauren N. Sutton
Assistant District Attorney
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
Attorneys for the State
28
Certificate of Compliance
I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of
Appellate Procedure, Appellee’s Brief contains 7,507 words, exclusive of the
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
__/s/Lauren N. Sutton__________________
Lauren N. Sutton
29
Certificate of Service
I, Lauren N. Sutton, certify that I have served a true and correct copy of the
foregoing Brief for the State upon Mr. Troy Hornsby, Attorney for Appellant, on
this the 31st day of August, 2015.
__/s/Lauren N. Sutton___________
Lauren N. Sutton
30