Richard Darby v. State
06-15-00042-CR
| Tex. App. | Jun 4, 2015Background
- Richard Darby pleaded guilty to five offenses (theft; two aggravated robberies with deadly weapon; aggravated robbery of a senior; evading arrest with a vehicle) and was sentenced after a jury punishment hearing to concurrent terms (including three 45-year terms and a 10-year term).
- While in pretrial detention the State introduced evidence that Darby participated in two unadjudicated sexual assaults on a fellow inmate; Darby admitted the assaults occurred but denied his own involvement.
- The State also introduced a recorded jail visit in which Darby allegedly discussed escape with his father; the prosecution did not give pretrial § 37.07 notice for that extraneous bad act.
- Darby objected at trial to (1) admission of the unadjudicated sexual-assault evidence under art. 37.07 and Rule 403, (2) admission of the escape-discussion recording for lack of notice and foundational authentication, and (3) the punishment-range submitted to the jury for evading arrest.
- Trial court ruled the two jail sexual-assault incidents admissible at punishment, allowed the escape-discussion recording as rebuttal, and the judgment/punishment papers treated evading arrest as a third-degree felony (with associated punishment range), though Darby contends the statute yields a state-jail felony.
Issues
| Issue | State's Argument | Darby's Argument | Held (trial court ruling) |
|---|---|---|---|
| 1. Admission of two unadjudicated sexual assaults at punishment | Evidence of extraneous bad acts is admissible under art. 37.07 for sentencing; victim and inmate testimony tie Darby to acts. | State failed to prove beyond a reasonable doubt Darby committed the assaults; evidence therefore inadmissible under art. 37.07. | Trial court admitted the two unadjudicated sexual-assault episodes. |
| 2. Rule 403 balancing of those sexual-assault allegations | Probative of character/conduct for punishment. | Probative value low/redundant; extremely prejudicial and inflammatory — should be excluded under Rule 403. | Trial court admitted the evidence (after pretrial hearing and running objection granted). |
| 3. Admission of recorded jail conversation about escape (notice & admissibility as rebuttal) | Prosecution offered recording as rebuttal to mitigation (remorse) and asserted rebuttal need excused statutory notice. | Recording was not disclosed as required by art. 37.07; escape talk does not rebut remorse; recording lacks adequate foundation/authentication. | Trial court admitted the recording as rebuttal evidence. |
| 4. Penal classification/punishment range for evading arrest with vehicle | Prosecution treated offense as third-degree felony (submitted third-degree range). | Statutory text compels a state-jail felony for evading in a vehicle (lighter punishment); judgment and charge using third-degree range yielded unauthorized sentence. | Judgment and punishment charge reflected third-degree felony (court accepted that range at sentencing). |
| 5. Typographical errors in judgments reflecting plea of "not guilty" | N/A | Judgments for three aggravated-robbery counts incorrectly state pleas as not guilty though defendant entered guilty pleas; request to correct clerical errors. | Trial court entered judgments containing the incorrect plea language (appellant seeks appellate correction). |
Key Cases Cited
- Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App.) (preservation principles for appellate complaints)
- Tex. Code Crim. Proc. art. 37.07 (statutory requirement summarized in authorities cited by parties) (Note: statutory authority referenced in brief; not listed as a case)
- Gipson v. State, 619 S.W.2d 169 (Tex. Crim. App.) (permitting rebuttal extraneous-offense evidence when defendant opens the door)
- Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App.) (abuse-of-discretion standard; zone of reasonable disagreement for evidentiary rulings)
- Johnson v. State, 698 S.W.2d 154 (Tex. Crim. App.) (abuse-of-discretion review for admissibility)
- Adetomiwa v. State, 421 S.W.3d 922 (Tex. App.—Fort Worth) (addressing discrepancy in § 38.04 punishments and treating vehicular evading as third-degree felony)
- Ex parte Beck, 922 S.W.2d 181 (Tex. Crim. App.) (fundamental-illegality of sentences outside statutory range)