DEMETRA BRUMFIELD v. THE STATE OF TEXAS
NO. 12-21-00031-CR
IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
February 16, 2022
APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
Demetra Brumfield appeals his conviction for unauthorized use of a motor vehicle. Appellant raises five issues on appeal. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with unauthorized use of a motor vehicle and pleaded “not guilty.” The matter proceeded to a jury trial. Following the presentation of evidence, the jury found Appellant “guilty” as charged and assessed his punishment at imprisonment for twenty years and a ten thousand dollar fine. The trial court sentenced Appellant accordingly, and this appeal followed.
EVIDENTIARY SUFFICIENCY
In his first issue, Appellant argues that the evidence is legally insufficient to support the trial court‘s judgment. Specifically, he argues that there is no evidence to support that he engaged in the prohibited conduct either intentionally or knowingly.
The Jackson v. Virginia1 legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson, 443 U.S. at 315-16, 99 S. Ct. at 2786-87; see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.-San Antonio 1999, pet. ref‘d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A jury is free to believe all or any part of a witness‘s testimony or disbelieve all or any part of that testimony. See Lee v. State, 176 S.W.3d 452, 458 (Tex. App.-Houston [1st Dist.] 2004), aff‘d, 206 S.W.3d 620 (Tex. Crim. App. 2006). A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42 (1982), 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652.
Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Rodriguez v. State, 521 S.W.3d 822, 827 (Tex. App.-Houston [1st Dist.] 2017, no pet.) (citing Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011)). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. Id. at 15. Juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. Id. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them, while speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Id. at 16.
To satisfy its burden of proof that Appellant committed the offense of unauthorized use of a motor vehicle as charged in the indictment, the State was required to prove that Appellant intentionally or knowingly operated another‘s motor vehicle without the effective consent of the owner. See
Discussion
In the instant case, the record reflects that Appellant drove a U-Haul box truck from Dallas, Texas to Tyler, Texas at the request of a third party, who offered to pay Appellant to purchase a recreational vehicle at Broadway Power Sports in Tyler. When Appellant and two other individuals arrived at the dealership on January 19, 2019, they attempted to purchase a four-wheeler using a check. Wesley Ward, the general manager at the dealership, became
Rabiel Smith, who operates a U-Haul dealership in Dallas, Texas, testified that a U-Haul truck went missing from his dealership‘s lot January 7, 2019, but the only key for the truck still was in his office. He further testified that if someone had permission to have that U-Haul truck, they would have the key that went with it. Smith stated that he called law enforcement and gave them the vehicle identification number for the missing truck, which he identified as “U-Haul truck EL3461M.” Smith further stated that no one with Appellant‘s name ever had consent from him, as a representative for U-Haul, to use that truck. He elaborated, stating that if a person does not have a contract while in possession of a U-Haul truck, then U-Haul considers that truck stolen. Smith testified that he later received a call from a police officer in Tyler, Texas, who told him the truck missing from his lot was stolen. He further testified that the truck later was transported to the nearest U-Haul corporate store before it was put back into rental service.
Tyler Police Department Officer Andrew Mackey testified he responded to the scene on the day in question and determined, based on the license plate and the vehicle identification number of the U-Haul truck, that the vehicle had been reported stolen by the Dallas Police Department. Mackey further testified that he made contact with Appellant, who was inside the dealership sitting at the sales desk. According to Mackey, after he detained Appellant, Appellant told him that he was driving the U-Haul and did not know it was stolen. Mackey stated that Appellant initially claimed not to know the name of the person who provided the U-Haul to him but later informed Mackey that someone named “Keith,” a friend-of-a-friend, whose last name he did not know, gave him the truck to use. Mackey further stated that Appellant said that Keith offered to give him one hundred fifty dollars to drive the U-Haul to Tyler to pick up a four-wheeler. Appellant also told Mackey that a wrecker service had to be called to unlock the U-Haul before he drove it to Tyler.
In sum, the evidence reflects that the U-Haul truck Appellant drove from Dallas to Tyler was stolen. Smith testified that no one with Appellant‘s name ever had his consent to use that
ADMISSIBILITY OF EVIDENCE
In his third issue, Appellant argues that the trial court abused its discretion in admitting portions of a video taken by Mackey‘s body camera, in which he questions Appellant about a check found on his person.
Standard of Review
We review the trial court‘s decision to admit evidence for abuse of discretion. See Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh‘g). As long as the trial court‘s ruling was at least within the zone of reasonable disagreement, the appellate court will not intercede. See Montgomery, 810 S.W.2d at 391. Furthermore, if the trial court‘s evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed, even if the trial judge gave the wrong reason for a correct ruling. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Discussion
In the instant case, Appellant argues that the trial court abused its discretion in admitting a portion of Mackey‘s body camera video (State‘s Exhibit 1), which depicts (1) a check in Appellant‘s name, which was removed from Appellant‘s person, and (2) Mackey‘s questioning
Relevance
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
The doctrine of admissibility of same transaction contextual evidence arose from what has been termed as evidence of the “res gestae” of an offense. Moore v. State, 165 S.W.3d 118, 122 (Tex. App.-Fort Worth 2005, no pet.). It long has been established that extraneous offense evidence is admissible
[t]o show the context in which the criminal act occurred-what has been termed the ‘res gestae‘-under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence.
Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972). In Mayes v. State, the Texas Court of Criminal Appeals noted that “[b]ackground evidence, once called ‘res gestae’ of the offense, also has come to refer to other offenses indivisibly connected with the offense charged, and not only general background evidence which is helpful to the jury‘s understanding.” 816 S.W.2d 79, 86 (Tex. Crim. App. 1991). The court further recognized that the broadening of the term res gestae led to confusion as to what exactly constitutes res gestae evidence. See id. Therefore, the court took the opportunity to distinguish between background evidence and evidence of “other offenses connected with a primary offense,” which the court referred to as “same transaction” contextual evidence. Id. at 86.
Same transaction contextual evidence is admissible as an exception under
Same transaction contextual evidence is deemed admissible as a so-called exception to the propensity rule where “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.” The reason for its admissibility “is simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose.” Necessity, then, seems to be one of
the reasons behind admitting evidence of the accused‘s acts, words and conduct at the time of the commission of the offense.
Mayes, 816 S.W.2d at 86 n.4; see also Rogers, 853 S.W.2d at 33. Necessity, then, is an “other purpose” for which same transaction contextual evidence is admissible under
Here, the record reflects that Appellant drove a stolen U-Haul truck from Dallas to Tyler. The jury previously heard evidence regarding rumors of a criminal scheme wherein individuals would drive U-Haul trucks to recreational vehicle dealerships and attempt to pay for vehicles with checks where there were not sufficient funds to cover the purchase. The jury also heard testimony that Appellant and others arrived at the dealership in a U-Haul, which Appellant drove, and that one of the individuals had begun to fill out a check for the purchase. Thus, the evidence suggests the existence of two instances of interwoven criminal activities-Appellant‘s alleged unauthorized use of a motor vehicle and an attempted theft. Therefore, the State was entitled to offer proof of circumstantial evidence of Appellant‘s possession of this check and the purpose for which he sought to use it because such evidence of Appellant‘s potential involvement in an attempted theft is part of the same transaction as Appellant‘s alleged unauthorized use of a motor vehicle. See id.
Furthermore, the State was required to prove that Appellant knew that he did not have consent to operate the vehicle in question. And while Smith‘s testimony establishes that Appellant did not have such consent,2 the State was entitled to offer more proof of that element. On Mackey‘s body camera video, Appellant tells Mackey that he acquired the truck from an unknown individual, a man he later identified only as Keith. According to Appellant, Keith offered Appellant one hundred fifty dollars to drive the U-Haul from Dallas to Tyler to pick up a recreational vehicle. This statement to Mackey, if considered alone, potentially could leave the impression in the jurors’ minds that Appellant merely was an unwitting participant in a greater criminal theft scheme, a person who innocently accepted an offer to drive a truck in exchange for money. Evidence that Appellant had in his possession a partially filled-out check, by which he personally would pay for the recreational vehicle in an amount of potentially up to $10,000.00, is relevant because it tends to show that Appellant was, in fact, more than an unwitting participant
Risk that Probative Value is Substantially Outweighed by the Danger of Unfair Prejudice
Under
When evaluating whether the trial court erred in admitting a relevant photograph or video into evidence, an appellate court‘s review is limited to determining whether the probative value of the photo or video is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009); Fields v. State, 515 S.W.3d 47, 56 (Tex. App.-San Antonio 2016, no pet.); see also
In the instant case, the probative value of the evidence at issue is strong as is the State‘s need for the evidence. While Smith testified that Appellant did not have consent to operate the vehicle, Appellant‘s statements to Mackey potentially depicted him as an unwitting participant or hired hand. As set forth above, the evidence of Appellant‘s possession of a check and its intended use was relevant both to give the jury a greater understanding of Appellant‘s level of involvement as well as to help prove the critical element that Appellant knew he did not have consent to operate the vehicle. Furthermore, we do not conclude that this evidence had the
Harm
Even assuming arguendo that the evidence was not relevant or that its relevance was greatly outweighed by the danger of its being unfairly prejudicial, the outcome would not change. If a defendant objects to the admission of evidence but the same evidence is subsequently introduced from another source without objection, the defendant waives his earlier objection. Gilbert v. State, 575 S.W.3d 848, 870 (Tex. App.-Texarkana 2019, pet. ref‘d).
Here, Appellant objected to the admission of a portion of State‘s Exhibit 1, which consisted of Mackey‘s body camera footage.3 However, while the exhibit was published to the jury, the State repeatedly paused the video and elicited testimony from Mackey regarding his observations of the events as depicted on the video. Appellant made no objection to Mackey‘s testimony about the check recovered from Appellant‘s person or his testimony about the subsequent conversation he had with Appellant about whether he had sufficient funds to cover the cost of a vehicle in an amount up to $10,000.00. Since substantively equivalent testimony to
CONSTITUTIONALITY OF CERTAIN COVID-19 PANDEMIC SAFETY PROTOCOLS
In his second issue, Appellant argues that the trial court abused its discretion by overruling his motion to stay and his motion to quash the venire panel.
Motion to Stay (Motion for Continuance)
In his motion to stay, Appellant argued that COVID-19 precautions, such as the venire panel members’ wearing facemasks and social distancing,4 violated his constitutional right to a fair trial and that the promulgation of the rules from which these precautions arose violate the Texas Constitution‘s separation of powers protections. Appellant‘s motion does not cite to, nor is this court aware of, a rule which would permit a trial court in a criminal proceeding to stay a jury trial indefinitely. However, on appeal, Appellant sets forth the applicable standard of review as that for reviewing a motion for continuance. Accordingly, we will construe Appellant‘s motion as one requesting a continuance.
A trial court‘s ruling on a motion for continuance is reviewed for an abuse of discretion. Cruz v. State, 565 S.W.3d 379, 381 (Tex. App.-San Antonio 2018, no pet.); see Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). A trial court does not abuse its discretion as long as its decision is within the zone of reasonable disagreement. Cruz, 565 S.W.3d at 381.
With regard to continuances, the Texas Code of Criminal Procedure (“the Code“) provides, “A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion.”
Here, Appellant‘s motion was unsworn. Therefore, we hold that Appellant failed to preserve his motion for continuance and its bases for review.
Motion to Quash Jury Panel
In an attempt to take precautions against the COVID-19 pandemic, and apparently because a larger convention space was unavailable at that time to appropriately socially distance a larger venire panel, two smaller panels were summoned over the course of two days, and if the parties were unable to select a jury from the first day‘s panel, the second day‘s panel would be available as a supplement. Prior to trial, Appellant made a written objection to “any system in place for jury selection that would not allow for the viewing of all possible jury members in numeric order to exercise [a] possible shuffle.” Before voir dire resumed with the second day‘s panel, Appellant moved to quash the remainder of the first day‘s venire members, from which a jury likely would not be seated.5 He argued that by dividing the venire panel into two groupings over two days, the trial court prevented him from observing the entirety of the panel in numeric order and, thereby, prevented him from having an opportunity meaningfully to request a jury shuffle in violation of his rights under the Texas Constitution. Appellant continued, stating that he had no way of knowing if the second day‘s venire would result in an empaneled jury either and, thus, he also was reurging his pretrial motion. The State expressed that it had “no response.” Ultimately, the trial court overruled Appellant‘s motion to quash the remaining venire members from the first day‘s panel, and neither party requested a shuffle of the first day‘s panel, the second day‘s panel, or a combination of the remainder of the first day‘s panel with the second day‘s panel. Following voir dire of the second day‘s panel, a jury was seated.
Standard of Review and Governing Law
Texas Code of Criminal Procedure, Article 35.11 creates a statutory privilege that allows the parties in a criminal trial to have the names of the prospective jurors shuffled. Davis v. State, 782 S.W.2d 211, 214 (Tex. Crim. App. 1989). Article 35.11 sets forth as follows:
The trial judge, upon the demand of the defendant or his attorney, or of the State‘s counsel, shall cause the names of all the members of the general panel drawn or assigned as jurors in such case to be placed in a receptacle and well-shaken, and the clerk shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try the case, and write the names as drawn upon two slips of paper and deliver one slip to the State‘s counsel and the other to the defendant or his attorney.
In interpreting Article 35.11, we have determined that compliance with that statute is had when counsel for either the State or the defendant is allowed the opportunity to view the venire seated in the courtroom in proper sequence and is, thereafter, allowed an opportunity to exercise his or her option to have the names shuffled. See Davis, 782 S.W.2d at 214 (citing Williams v. State, 719 S.W.2d 573, 575 (Tex. Crim. App. 1986)). A defendant has the absolute right to a shuffle of the jury panel pursuant to Article 35.11, and that right is satisfied upon a shuffling of the panel at the request of either the state or the defendant. See Jones v. State, 833 S.W.2d 146, 147-48 (Tex. Crim. App. 1992).
The purpose of Article 35.11 is to ensure the compilation of a random list of jurors. Id. at 148. It is not a particularized right to the defendant, nor is it a right of constitutional magnitude. See id. at 148 n.3; Yanez v. State, 677 S.W.2d 62, 68 (Tex. Crim. App. 1984) (right to have names of members of jury panel shuffled is not of constitutional dimension and may be waived by failure to make timely request for shuffle). A request for a shuffle is timely if it is made before the State begins questioning the venire panel so long as no prospective jurors have been dismissed previously. See Davis, 782 S.W.2d at 214-15.
Discussion
The record reflects that Appellant never requested a jury shuffle at the outset of the first day‘s voir dire proceedings after his motion to quash was denied. See Davis, 782 S.W.2d at
Furthermore, Appellant argues that because this voir dire procedure prevented him from meaningfully being able to determine if he desired to request a jury shuffle, his rights under the Texas Constitution were violated. We reiterate that a defendant‘s right to a shuffle under Article 35.11 is not one of constitutional magnitude. See id. at 148 n.3; Yanez, 677 S.W.2d at 68. Thus, even if the trial court‘s voir dire procedure interfered with Appellant‘s decision-making abilities pertaining to his exercise of his right to a jury shuffle, such procedure did not result in a violation of Appellant‘s rights under the Texas Constitution on that basis.
Appellant‘s argument to the trial court seemed to stem from his desire to pick a jury only from a single panel. But because Appellant does not make that argument in this appeal, we need not decide whether a trial court‘s permitting jury selection from multiple panels over the course of days based on unique community health concerns amounts to an abuse of discretion. Nonetheless, there is precedent, which does not foreclose the propriety of supplementing a venire panel with a second panel on the day after a jury could not be selected from the first panel alone. Cf. Williams v. State, 707 S.W.2d 253 (Tex. App.-Houston [14th Dist.] 1986, no pet.).6
BILL OF COSTS
In his fourth and fifth issues, Appellant contends the trial court erred in including certain items in the bill of costs, including the “County Specialty Court Account” fee and the fine assessed by the trial court.
With regard to the county specialty court account fee, the State not only concedes that this fee was assessed erroneously but also states that the “Local Consolidated Fee on Conviction of Felony” as a whole should not have been assessed. We agree.
The date of Appellant‘s charged offense is January 19, 2019. The Local Consolidated Fee on Conviction of Felony only applies to defendants who are convicted of offenses committed on or after January 1, 2020. See
Fines are punitive and intended to be part of the convicted defendant‘s sentence. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Court costs, however, are “compensatory in nature” and are “a nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case.” Id.; Williams v. State, 495 S.W.3d 583, 590 (Tex. App.-Houston [1st Dist.] 2016), pet. dism‘d, improvidently granted, 2017 WL 1493488 (Tex. Apr. 26, 2017) (op., not designated for publication).
The bill of costs also includes the $10,000 fine imposed by the trial court. A bill of costs must be in writing and contain “the items of cost.”
DISPOSITION
We have sustained Appellant‘s fourth and fifth issues. Accordingly, we modify the trial court‘s judgment and its attached order to withdraw funds, to reflect that Appellant‘s court costs are $156.50. We further modify the bill of costs to delete the $10,000.00 fine. Having overruled Appellant‘s first, second, and third issues, we affirm the trial court‘s judgment as modified.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 16, 2022
NO. 12-21-00031-CR
DEMETRA BRUMFIELD, Appellant V. THE STATE OF TEXAS, Appellee
Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-0489-19)
THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, it is the opinion of this court that the judgment and its attached order to withdraw funds of the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment and its attached order to withdraw funds of the court below be modified to reflect that Appellant‘s court costs are $156.50 and the bill of costs be modified to delete the $10,000.00 fine; in all other respects the judgment of the trial court is affirmed, including the $10,000.00 fine set forth in the judgment; and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.