Richard Darby v. State, 06-15-00043-CR

Background

Richard Darby pleaded guilty to five offenses: theft, three aggravated robberies, and evading arrest with a vehicle; punishment was tried to a jury that returned lengthy sentences (concurrent).
While jailed pretrial, the State introduced evidence that Darby participated in two unadjudicated sexual assaults of a fellow inmate and later admitted a recorded jail call in which Darby allegedly discussed escape.
Defense objected below to (a) admission of the unadjudicated sexual-assault evidence for punishment because the State failed to prove those acts beyond a reasonable doubt and (b) admission/authentication and nondisclosure of the recorded jail call. Trial court admitted both; running objections and directed-verdict motions were preserved.
Darby was convicted of evading arrest (vehicle) but the judgment and punishment charge reflected a third-degree felony range, while one statutory provision arguably makes that offense a state-jail felony, creating an alleged sentencing error.
Three judgments mistakenly recite pleas of not guilty though the record reflects guilty pleas; Darby asks the appellate court to correct those clerical errors.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Darby)	Held
1. Admission of two unadjudicated sexual assaults at punishment: sufficiency under art. 37.07	Evidence (victim and other inmate testimony, video witness testimony) shows the assaults occurred and are admissible for punishment.	Article 37.07 requires the State prove extraneous bad acts beyond a reasonable doubt; the record contains contradictory testimony and no direct video ID tying Darby to the acts, so the State failed that burden.	Court ordered review of admissibility; appellant argues evidence insufficient and therefore inadmissible under art. 37.07.
2. Rule 403 balancing of those sexual-assault allegations	Probative of character and relevant to punishment.	Probative value is low/redundant and highly prejudicial (graphic sexual conduct, juvenile/vulnerable victim, potential racialized impact, time-consuming). Exclude under Rule 403.	Appellant contends exclusion required because prejudice substantially outweighed probative value.
3. Admission of recorded jail call re: escape (disclosure & rebuttal)	Call rebuts defendant's mitigation (remorse) and is proper rebuttal even if not previously disclosed.	The call was not disclosed as required by art. 37.07; it does not actually rebut remorse and thus should have been excluded.	Appellant contends trial court erred in admitting the call as rebuttal and for failing to require statutory notice.
4. Authentication/foundation for recorded jail call	Jail official authenticated the recording and identified voices; recording system in place supports admissibility under Rule 901.	Testimony lacked personal-knowledge details linking call to Darby (no verification of inmate number, system operation by third-party vendor, no voice-familiarity foundation), so Rule 901 not satisfied.	Appellant argues foundation inadequate and recording therefore inadmissible.
5. Proper grade of evading arrest (vehicle): state-jail felony vs. third-degree felony	The State relies on appellate authority treating vehicle-evading as third-degree felony.	Statutory text contains contradictory subsections; the lighter punishment (state-jail felony) should apply; the judgment/punishment range used (third-degree) was unauthorized, producing an illegal sentence and requiring a new punishment hearing.	Appellant asserts sentence was outside authorized range and is fundamental error removable on appeal.
6. Clerical errors in judgments (plea recitals)	N/A (ministerial).	Three judgments incorrectly state pleas of not guilty though record shows guilty pleas; request modification/correction on appeal.	Appellant requests appellate correction of clerical errors.

Key Cases Cited

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App.) (preservation rule and raising objections at trial)
Gipson v. State, 619 S.W.2d 169 (Tex. Crim. App.) (door opened for rebuttal evidence in punishment when defendant injects contested issue)
Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App.) (zone-of-reasonable-disagreement standard for admission rulings)
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App.) (harmless-error framework for nonconstitutional errors)
King v. State, 953 S.W.2d 266 (Tex. Crim. App.) (definition of substantial right and harmful error analysis)
Adetomiwa v. State, 421 S.W.3d 922 (Tex. App.—Fort Worth) (addressing statutory discrepancy in grading evading arrest with vehicle)
Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App.) (factors for Rule 403 balancing)
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App.) (presumption favoring admissibility and Rule 403 framework)
Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App.) (abuse-of-discretion standard for extraneous-offense admission)