COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-195-CR
W ILLIAM RICHARDSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. Introduction
In four issues, Appellant W illiam Richardson appeals his conviction for
fraudulent use or possession of identifying information. W e affirm
II. Factual and Procedural Background
In the early morning hours of December 4, 2007, Flower Mound Police Officer
Nick Hill pulled over a vehicle for a traffic violation. Officer Hill approached and
made contact with the driver, identified as Richardson by his driver’s license and
insurance. After making contact with the passenger, Gary W ayne W ebster, Officer
Hill instructed Richardson to stand at the rear of the vehicle while he ran a standard
computer check. The computer check returned an outstanding warrant for
Richardson. Officer Hill, requested a back-up unit and asked dispatch for
confirmation on Richardson’s warrant. The back-up unit, driven by Officer Ben
Lippens, arrived almost immediately.
W hile Officer Lippens kept an eye on W ebster, Officer Hill questioned
Richardson. He asked whether Richardson owned the vehicle he was driving;
Richardson responded that the car belonged to his mother. Officer Hill also asked,
“Do you have any problem if I take a look in your car?” Richardson responded that
he did not. Shortly thereafter, dispatch confirmed the warrant, and Officer Hill
arrested Richardson and seated him in the backseat of his patrol unit.
The Officers then removed W ebster from the front passenger seat and
searched the vehicle, discovering a W al-Mart bag in the driver’s seat containing a
clear plastic wallet insert with a social security card, a Unicard, a Visa card, and a
Texas Department of Human Services card, all bearing the name Burgie Davis. The
bag also contained W al-Mart gift cards still attached to their original cardboard
backing and a receipt from the Fairfield Inn in Richardson’s name. In the center
console, the officers discovered another bag containing more gift cards.
The officers found a laptop computer and a clear plastic box on the front
passenger side floorboard. The box contained transparency graphing paper; razor
blades; glues and adhesives; gift cards; and drivers’ licenses, identifications, and
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keychain credit cards, all belonging to individuals other than Richardson or W ebster,
including some that belonged to Burgie Davis. On the driver’s side backseat
floorboard, the officers discovered a red plastic folder containing, among other items,
a list of The Sun Shop’s customers and their financial information (The Sun Shop
list); pictures of W ebster; a document from a website discussing magnetic strip
readers; and hotel receipts with credit card information on individuals other than
Richardson or W ebster. On the middle rear floorboard, the officers found a small
photo printer that was attached to a laptop computer (belonging to W ebster) and to
a power inverter plugged into the cigarette lighter. The officers also discovered a
Nikon camera, a cell phone, CDs, and DVDs in the backseat. In the trunk, the
officers found an aluminum box containing razor blades, white-out, hard drives for
laptops, glue, a screwdriver, batteries, scissors, and printer cartridges.
After searching the vehicle, Officer Hill transported Richardson to the jail. A
wallet found in Richardson’s back pocket contained a business card for The Sun
Shop, clear graphing transparency paper, and receipts showing purchases made
using a Visa card discovered in the clear plastic box found on the front floorboard.
The State charged Richardson with fraudulent possession of identifying information
for over fifty individuals (specifically those on The Sun Shop list) and included an
enhancement paragraph for a prior felony conviction—aggravated assault on a
peace officer.
3
At trial, in addition to both Officer Hill and Officer Lippens testifying to the facts
stated above, Kelly Wood, an ex-employee of The Sun Shop, testified that she had
stolen billing lists from The Sun Shop, taken them to W ebster’s house, assisted
W ebster and Richardson in making fraudulent cards from the billing lists, and that
she, Richardson, and W ebster had used the fraudulent cards to shop. W ood also
testified that she went to W ebster’s house to “get high” on methamphetamine. She
further stated that Richardson and W ebster were roommates and that Richardson
was W ebster’s driver.
Elizabeth Herring, The Sun Shop’s manager, confirmed that the list found in
the vehicle was, in fact, one of The Sun Shop’s billing lists. Herring testified that The
Sun Shop’s employees were not allowed to give out its customers credit card
information to third parties—she specifically testified that neither W ood, Richardson,
nor W ebster had permission to have The Sun Shop’s billing list. She further testified
that she recognized fifty-seven specific customers on the list and that none of them
had given their permission for The Sun Shop to share their information.
The owner of The Sun Shop, Dennis Sheldon, also testified that the business
was not allowed to, and did not, give anyone permission to have The Sun Shop’s
billing lists. Sheldon confirmed W ood’s dates of employment and also confirmed
that W ood had stolen billing lists from The Sun Shop.
Jesse Basham, an FBI computer forensic examiner, testified that the laptop
found in the vehicle contained photographs, signature strips, driver’s license
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templates, university ID cards, credit card numbers, and social security numbers for
individuals other than Richardson or W ebster.
At the close of evidence, the jury found Richardson guilty of fraudulent use or
possession of identifying information for over fifty individuals (specifically those
individuals on The Sun Shop list). During the punishment phase, Richardson
pleaded true to the enhancement paragraph in the indictment—aggravated assault
on a peace officer—and he also stipulated that he had a previous felony conviction
for driving while intoxicated (DW I), along with two other DW I convictions. The jury
assessed punishment at life, and the trial court sentenced Richardson accordingly.
This appeal followed.
III. Sufficiency of the Evidence
In his second issue, Richardson argues that the evidence is legally and
factually insufficient to support his conviction.
A. Fraudulent Use or Possession of Identifying Information
Under § 32.51 of the penal code, a person commits fraudulent use or
possession of identifying information, if the person, with the intent to harm or defraud
another, obtains, possesses, transfers, or uses an item of identifying information of
another person without the other person’s consent. Tex. Pen. Code Ann. § 32.51(b)
(Vernon Supp. 2008). Because Richardson only challenges the sufficiency of the
evidence to show that “he was in ‘possession’ of [The Sun Shop list],” we limit our
discussion to address only the possession element of the offense.
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This appears to be a case of first impression. W e, like the parties, were
unable to find any prior case law addressing a sufficiency challenge to the
possession element of fraudulent use or possession of identifying information.
However, we agree with the parties that the proper law to apply in this case is the
body of law pertaining to affirmative links developed in controlled substance cases.
See Evans v. State, 202 S.W .3d 158, 161–62 (Tex. Crim. App. 2006) (discussing the
affirmative links rule and pointing out that the purpose of the rule is to protect the
innocent bystander, relative, roommate, or friend from conviction merely by their
proximity to another’s contraband). 1 Therefore, we apply the linking rule to
determine whether the evidence was legally and factually sufficient to show that
Richardson was in possession of The Sun Shop list.
B. Linked to Contraband
To prove possession, the State must show the accused (1) exercised control,
management, or care over the contraband and (2) knew the matter possessed was
contraband. Evans, 202 S.W .3d at 161; Cuong Quoc Ly v. State, 273 S.W .3d 778,
781 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Possession may be proved
through either direct or circumstantial evidence. Poindexter v. State, 153 S.W .3d
402, 405–06 (Tex. Crim. App. 2005); see also Rice v. State, 195 S.W .3d 876, 881
1
W hile reviewing courts previously referred to the necessary connection
between an accused and contraband as “affirmative links,” we now refer to these
connections simply as “links.” See Evans, 202 S.W .3d at 161 n.9.
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(Tex. App.—Dallas 2006, pet. ref’d) (stating jury could infer knowing or intentional
possession of contraband).
W hen, as here, the accused is not in exclusive possession or control of the
place where contraband is discovered, the State must show additional facts and
circumstances linking the accused to the contraband to show the accused’s
knowledge of or control over the contraband. Poindexter, 153 S.W .3d at 406; Grisso
v. State, 264 S.W .3d 351, 355 (Tex. App.—W aco 2008, no pet.). W e consider the
totality of the circumstances when determining whether the accused is linked to the
recovered contraband. See Hyett v. State, 58 S.W .3d 826, 830 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d). The accused’s connection with the
contraband must be “more than just fortuitous.” Poindexter, 153 S.W .3d at 405–06.
The accused’s presence at the scene where contraband is found is insufficient, by
itself, to establish possession. Evans, 202 S.W .3d at 162. However, presence or
proximity combined with other direct or circumstantial evidence (e.g., “links”) may be
sufficient to establish the elements of possession beyond a reasonable doubt. Id.
Reviewing courts have developed several factors showing a possible link
between the accused and contraband, including: (1) the accused’s presence when
the search was conducted, (2) whether the contraband was in plain view, (3) the
accused’s proximity to and the accessibility of the contraband, (4) whether the
accused possessed other contraband when arrested, (5) whether the accused made
incriminating statements when arrested, (6) whether the accused owned or had the
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right to possess the place where the contraband was found, (7) whether the
contraband was found in an enclosed place, and (8) whether the conduct of the
accused indicated a consciousness of guilt. See Cuong Quoc Ly, 273 S.W .3d at
781–82; Grisso, 264 S.W .3d at 355. The number of linking factors present is not as
important as the “logical force” they create to prove the accused knowingly or
intentionally possessed the controlled substance. Evans, 202 S.W .3d at 162; see
also Roberson v. State, 80 S.W .3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002,
pet. ref’d) (recognizing proof of links between the accused and contraband
“generates a reasonable inference that the accused knew of the contraband’s
existence and exercised control over it”).
C. Legal Sufficiency
1. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.
2007).
2. Analysis
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Here, although Richardson was not alone in the vehicle at the time of the stop,
he was the driver of the vehicle and the vehicle belonged to his mother. Thus,
Richardson was in possession and control of the vehicle.
In addition to Richardson’s control over the vehicle, there are several other
factors linking him to The Sun Shop list found in the vehicle, including: (1) W ood’s
testimony that Richardson knew of the billing lists from The Sun Shop and that
Richardson had assisted in making fraudulent cards from the billing lists; (2) W ood’s
testimony that Richardson had used the fraudulent cards to shop; (3) The Sun Shop
list’s proximity to Richardson—that is, the backseat floorboard on the driver’s side;
(4) Richardson’s wallet, which contained a business card from The Sun Shop in
addition to clear graphing transparency paper and receipts linking him to the clear
plastic box found in the front floorboard of the vehicle; (5) the clear plastic box, which
contained transparency graphing paper; razor blades; glues and adhesives; gift
cards; and drivers’ licenses, identifications, and keychain credit cards, all belonging
to individuals other than Richardson or W ebster; (6) credit cards inside the center
console; and (7) the laptop computer and photo printer plugged into the cigarette
lighter, which contained templates for creating fraudulent identifications.
Based on the direct and circumstantial evidence presented here, we hold that
a reasonable jury could conclude beyond a reasonable doubt that Richardson
knowingly exercised joint possession and control over The Sun Shop list along with
9
W ebster. Thus, the evidence is legally sufficient to support the verdict. Accordingly,
we overrule this portion of Richardson’s second issue.
D. Factual Sufficiency
1. Standard of Review
W hen reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State,
280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006). W e then ask whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the factfinder’s
determination is clearly wrong and manifestly unjust or whether conflicting evidence
so greatly outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204
S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,
with some objective basis in the record, that the great weight and preponderance of
all the evidence, although legally sufficient, contradicts verdict. Watson, 204 S.W .3d
at 417.
Unless we conclude that it is necessary to correct manifest injustice, we must
give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson v.
State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.
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Evidence is always factually sufficient when it preponderates in favor of the
conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.
2. Analysis
Richardson combined his legal and factual sufficiency challenges together in
a single issue. W e construe Richardson’s argument to challenge the factual
sufficiency of the evidence on two grounds: (1) the folder containing The Sun Shop
list clearly belonged to W ebster and (2) he would not have consented to the search
of the vehicle had he known about the list.
Viewing the evidence neutrally, we recognize that the folder containing The
Sun Shop list also contained items linking it to W ebster and that Richardson
consented to the search of his vehicle. However, Richardson was the driver of a
vehicle that was full of evidence relating to an identity theft scam—that is, identifying
information for individuals other than Richardson or W ebster, blank credit cards,
transparency paper, and a laptop computer and printer capable of creating
fraudulent identifications. There was also evidence in Richardson’s wallet
connecting him to evidence within the vehicle that related to the identity theft scam.
See Wootton v. State, 132 S.W .3d 80, 89–90 (Tex. App.—Houston [14th Dist.] 2004,
pet. ref’d) (holding factually sufficient evidence existed that appellant knew tanks
contained anhydrous ammonia when appellant’s truck, where the tanks were found,
also contained many other ingredients used to manufacture methamphetamine).
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Moreover, there was testimony that Richardson knew of The Sun Shop list and that
he made fraudulent cards from the list, which he later used.
In light of the evidence supporting the jury’s verdict, we conclude that the
evidence is not so obviously weak that the verdict is clearly wrong and manifestly
unjust or that the proof of guilt is against the great weight and preponderance of the
evidence. See Steadman, 280 S.W .3d at 246; Watson, 204 S.W .3d at 414–15, 417.
Therefore, we hold that the evidence is factually sufficient to support Richardson’s
conviction. Accordingly, we overrule the remaining portion of Richardson’s second
issue.
IV. Corroboration Evidence
In his first issue, Richardson asserts that, apart from W ood’s accomplice
testimony, there is insufficient evidence linking him to the crime. W e disagree.
A. Accomplice-Witness Rule
“Article 38.14 [of the Texas Code of Criminal Procedure] provides that a
defendant cannot be convicted of an offense upon the testimony of an accomplice
without other corroborating evidence ‘tending to connect’ the defendant to the
offense.” Simmons v. State, 282 S.W .3d 504, 505 (Tex. Crim. App. 2009). In
determining the sufficiency of non-accomplice evidence to corroborate accomplice
testimony, the proper appellate standard is “whether a rational fact-finder could
conclude that the non-accomplice evidence ‘tends to connect’ appellant to the
offense.” Id. at 509; see Brown v. State, 270 S.W .3d 564, 567 (Tex. Crim. App.
12
2008) (explaining that the accomplice-witness rule “requires that, before a conviction
may rest upon the testimony of an accomplice witness, the accomplice’s testimony
must be corroborated by independent evidence tending to connect the accused with
the crime”). Non-accomplice evidence must not be taken as isolated facts, but
rather considered together as a whole, and if the force of the evidence is such, as
a whole, that it tends to connect the defendant to the offense, then it is sufficient.
Simmons, 282 S.W .3d at 511. “The corroborative evidence, however, need not be
sufficient in itself to establish guilt, nor must it directly link the accused to the
commission of the offense.” Brown, 270 S.W .3d at 567. “W e view the evidence in
the light most favorable to the jury’s verdict.” Id.
B. Non-accomplice Evidence
The non-accomplice evidence in this case consisted of (1) Richardson driving
a vehicle which contained among other things:
(a) a W al-Mart bag containing a clear plastic wallet insert with a social
security card, a Unicard, a Visa card, and a Texas Department of
Human Services card, all bearing the name Burgie Davis; W al-Mart gift
cards still attached to their original cardboard backing; and a receipt
from the Fairfield Inn in Richardson’s name;
(b) a clear plastic box in the floorboard on the front passenger side
containing transparency graphing paper; razor blades; glues and
adhesives; gift cards; drivers’ licenses, identifications, and keychain
credit cards, all belonging to individuals other than Richardson or
W ebster, including some that belonged to Burgie Davis;
(c) a bag in the center console containing more gift cards;
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(d) a red plastic folder in the backseat floorboard on the driver’s side
containing The Sun Shop list; and
(e) a small photo printer in the middle rear floorboard of the vehicle
attached to both a laptop computer and a power inverter plugged into
the cigarette lighter,
(2) a wallet in Richardson’s back pocket containing a business card for The Sun
Shop, clear graphing transparency paper, and receipts showing purchases made
using a Visa card discovered in the clear plastic box found in the front floorboard of
the vehicle, (3) expert testimony that the laptop contained photographs, signature
strips, driver’s license templates, university ID cards, credit card numbers, and social
security numbers of individuals other than Richardson or W ebster, and (4) testimony
that The Sun Shop list was in fact The Sun Shop’s billing list, which neither
Richardson nor W ebster had permission to possess.
C. Analysis
In sum, Richardson was driving a vehicle that had fraudulent identifying
information all throughout it—some of which was in plain view. There were receipts
bearing Richardson’s name in a bag containing identifying information belonging to
someone other than Richardson or W ebster. A laptop computer with the capability
of creating fraudulent identifications was attached to a power inverter plugged into
the vehicle’s cigarette lighter. And, Richardson’s wallet contained a business card
from The Sun Shop in addition to receipts that connected him to the plastic box
found in the vehicle’s front passenger floorboard, which contained fraudulent
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identifying information. Thus, considering the non-accomplice evidence together as
a whole while viewing the evidence in the light most favorable to the jury’s verdict,
we conclude that a rational factfinder could have concluded that the non-accomplice
evidence tended to connect Richardson to the offense—that is, fraudulent
possession of The Sun Shop list. See Simmons, 282 S.W .3d at 508, 511; Brown,
270 S.W .3d at 567. Accordingly, we overrule Richardson’s first issue.
V. Extraneous Offense Evidence
In his third issue, Richardson contends that the trial court abused its discretion
by admitting the following testimony over his Texas Rules of Evidence 404(b)
objection regarding his alleged participation in “dumpster diving.” 2
Direct Examination:
[State]: Did [W ebster] or [Richardson] ever obtain numbers from
outside The Sun Shop?
[Richardson objected under Rule 404(b) and Rule 403.
The trial court overruled Richardson’s objections but
instructed the jury to only consider the line of questioning
as it pertained to Richardson’s knowledge or intent.]
[State]: Ms. W ood, I believe the question that I’d asked was: W ere
credit card numbers ever obtained outside of The Sun Shop records?
[W ood]: Yes.
[State]: And how were those credit card numbers obtained?
2
Dumpster diving was defined at trial as searching through trash cans for
identifying information.
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[W ood]: Dumpster diving. I mean, like out of gas stations, they throw
their roll away, you know.
....
[W ood]: The roll with the credit card number on it. Some gas stations
print out the last four; some print out the whole number.
....
[State]: Okay. After you-all—were you ever with them when that was
going on?
[W ood]: At the gas stations?
[State]: Yes.
[W ood]: No.
[State]: After those numbers were obtained, what would happen to
them?
[W ood]: W e would take them back to [W ebster’s] house, and then
[Richardson] would call and check the numbers and either write–
[State]: Let me stop you there. Call who and check the numbers?
[W ood]: It’s a 1-800 number, 888 number. I don’t know what it is. But
you just call and you put in the number, and then you put in a dollar
amount. And it will say either it’s been approved or it hasn’t, you know.
...
[State]: Okay. Did you ever call and check those numbers?
[W ood]: Yes.
[State]: And you saw personally Mr. Richardson doing that also?
[W ood]: Yes.
Cross-Examination:
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[Defense]: How did you—where were these dumpsters that you went
through?
[W ood]: I didn’t say that I went through them. But, I mean, I don’t
know. They’re outside of gas stations.
[Defense]: W ell, who went through them?
[W ood]: He [the State] asked me where else they got the cards—or the
numbers, and I said out of dumpsters. I don’t know.
....
[Defense]: W ell, who got them out of dumpsters?
[W ood]: I don’t know. I mean, all I know is that they had them at his
house, at Maniac’s [W ebster’s] house, you know, and that those were
numbers being used also. I don’t know who got them out of the
dumpsters.
....
[Defense]: So you never knew if [Richardson] was going through
garbage bins and dumpsters retrieving identifying information.
[W ood]: That’s where they got them from. I don’t know who actually
went and took them out. I mean, I wasn’t there. I can’t say that.
....
[Defense]: All right. You said that [Richardson] would call credit card
and debit card numbers to verify the validity of stolen credit and debit
card numbers.
[W ood]: Yes.
[Defense]: W ere you there when he did that?
[W ood]: Yes.
A. Standard of Review
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A trial court’s decision to admit evidence is reviewed under an abuse of
discretion standard. Ellison v. State, 86 S.W .3d 226, 227 (Tex. Crim. App. 2002);
Mitchell v. State, 931 S.W .2d 950, 953 (Tex. Crim. App. 1996). The reviewing court
may reverse the trial court’s decision only if the ruling is outside the zone of
reasonable disagreement. Ford v. State, 919 S.W .2d 107, 115 (Tex. Crim. App.
1996); Montgomery v. State, 810 S.W .2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g).
B. Applicable Law
Rule 404(b) embodies the established principle that a defendant is not to be
tried for collateral crimes or for being a criminal generally. Tex. R. Evid. 404(b);
Nobles v. State, 843 S.W .2d 503, 514 (Tex. Crim. App. 1992); Booker v. State, 103
S.W .3d 521, 530 (Tex. App.—Fort W orth 2003, pet. ref’d). Extraneous offenses are
not admissible at the guilt-innocence phase of trial to prove that a defendant acted
in conformity with his character by committing the charged offense. Tex. R. Evid.
404(b); Booker, 103 S.W .3d at 529; Martin v. State, 42 S.W .3d 196, 199–200 n.2
(Tex. App.—Fort W orth 2001, pet. ref’d). Evidence of other crimes or extraneous
misconduct, however, may be admissible to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R.
Evid. 404(b); Booker, 103 S.W .3d at 529–30. Such evidence may also be
introduced to rebut a defensive theory. Powell v. State, 63 S.W .3d 435, 439–40
(Tex. Crim. App. 2001). By raising a defensive theory, the defendant opens the door
18
for the State to offer rebuttal testimony regarding an extraneous offense if the
extraneous offense has common characteristics with the offense for which the
defendant was on trial. See Bell v. State, 620 S.W .2d 116, 126 (Tex. Crim. App.
1980); Jones v. State, 119 S.W .3d 412, 421 (Tex. App.—Fort W orth 2003, no pet.).
C. Analysis
Richardson argues that W ood’s testimony “was being offered to prove that
[Richardson] has the propensity to commit identity theft with credit card numbers and
for that purpose, the evidence is inadmissible.” In response, the State asserts that
W ood’s testimony “was admissible for the nonconformity purpose of rebutting
[Richardson’s] defensive theory.”
Richardson’s defensive theory at trial was that (1) he had no knowledge of the
identifying information found in his car, (2) the identifying information did not belong
to him, and (3) the identifying information was in his car by mistake. During his
opening statement, Richardson denied possessing or using identifying information,
stating that he “was helping a co-employee—fellow employee move at the time. He
made the mistake of giving Gary W ebster a ride and moving these items [identifying
information] out of a storage shed.” In his closing argument, Richardson argued that
Officer Hill “jumped to the conclusion that everybody in th[e] car knew about these
items.”
He [Officer Hill] asked Mr. Richardson were those his items I
think at least on two occasions, maybe three, and Mr. Richardson
denied them—that they were his each time.
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And if Mr. Richardson knew about all these items, if he knew
these items were located in the driver’s seat, if he knew they were in
the gray plastic box, if he knew they were in the console, if he knew the
stuff was in the trunk, why in the heck would he consent to the search?
Upon comprehensive review of the record, we hold that the trial court could
have reasonably concluded that W ood’s testimony was not offered for character
conformity purposes, but instead was offered to rebut Richardson’s defensive theory
that the identifying information was in his car by mistake and that he had no
knowledge of the identifying information. See Lemmons v. State, 75 S.W .3d 513,
522–23 (Tex. App.—San Antonio 2002, pet. ref’d) (explaining that an extraneous
robbery offense offered by State to show murder defendant was aggressor in the
past was relevant to rebut defendant’s self-defense claim). Moreover, the trial
court’s limiting instruction shows that the trial court admitted the testimony for
noncharacter conformity purposes—that is, to determine Richardson’s knowledge
of, and intent to, commit the alleged offense. See Tex. R. Evid. 105(a) (providing for
a limiting instruction when evidence is admissible for one purpose but not admissible
for another). Therefore, the trial court did not abuse its discretion by admitting
W ood’s testimony as rebuttal evidence to Richardson’s defensive theory.
Accordingly, we overrule Richardson’s third issue.
VI. Grossly Disproportionate Sentence
In his fourth issue, Richardson complains that the trial court abused its
discretion by imposing a grossly disproportionate sentence, which violated his
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constitutional right to be free from cruel and unusual punishment. In response, the
State questions whether Richardson preserved this issue for review and argues, in
the alternative, that Richardson’s sentence is not so grossly disproportionate to his
crimes as to constitute cruel and unusual punishment.
To preserve error for appellate review, a defendant must make a timely,
specific objection and obtain a ruling from the trial court. Tex. R. App. P. 33.1. This
requirement applies even to errors of constitutional dimension, including those
asserting that a sentence is cruel and unusual. Solis v. State, 945 S.W .2d 300, 301
(Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (cited by Jackson v. State, 989
S.W .2d 842, 844 n.3 (Tex. App.—Texarkana 1999, no pet.)); see also Henderson
v. State, 962 S.W .2d 544, 558 (Tex. Crim. App. 1997). There is nothing in the
record indicating that Richardson objected to the sentence. He did, however, timely
file a motion for new trial, complaining that his “sentence violates his constitutional
protection to be free from disproportionate sentences.”
To preserve an issue by motion for new trial, a defendant must present the
motion to the trial court. Tex. R. App. P. 21.6. The defendant cannot merely file the
motion for new trial, but must ensure that the trial court has actual notice of the
motion. See Carranza v. State, 960 S.W .2d 76, 79 (Tex. Crim. App. 1998)
(interpreting predecessor rule, which is identical to 21.6). Actual notice may be
shown by such things as the judge’s signature or notation on a proposed order or by
a hearing date set on the docket. Id.
21
There is no presentment of the motion shown in this record. There is no entry
on the trial court’s docket sheet regarding the motion for new trial, no hearing was
set or held, there is no signature by the judge on the motion, and there is no
indication in the record that the trial court had actual knowledge that the motion for
new trial was filed. Thus, Richardson has failed to preserve his claim regarding the
alleged disproportionate sentencing for our review. See Thompson v. State, 243
S.W .3d 774, 776 (Tex. App.—Fort W orth 2007, pet. ref’d) (holding appellant forfeited
his complaint regarding his post-adjudication sentence because he did not object at
trial or present his motion for new trial). Accordingly, we overrule his fourth issue.
VII. Conclusion
Having overruled all four of Richardson’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY and W ALKER, JJ.; and DIXON J. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).
PUBLISH
DELIVERED: August 12, 2010
22
William Richardson v. State
Combined Opinion