Christopher Dwayne Simpson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 30, 2022
• Docket: 10-22-00001-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00001-CR

CHRISTOPHER DWAYNE SIMPSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 249th District Court Johnson County, Texas Trial Court No. DC-F201900866

MEMORANDUM OPINION

Appellant, Christopher Dwayne Simpson, was convicted of burglary of a

habitation. See TEX. PENAL CODE ANN. § 30.02(c)(2). After finding an enhancement

paragraph to be true, the jury sentenced Simpson to twelve years in prison with no fine

or restitution. On appeal, Simpson contends that the trial court erred by admitting

evidence of two prior convictions for misdemeanor assault causing bodily injury as impeachment evidence. Because we conclude that Simpson was not harmed by the

admission of this evidence, we affirm.

Analysis

In his sole issue on appeal, Simpson argues that the trial court erred by admitting

evidence of his two prior convictions for misdemeanor assault causing bodily injury.

Specifically, Simpson asserts that the evidence should not have been admitted under

Texas Rule of Evidence 609 because the State failed to show that these prior convictions

were felonies or involved moral turpitude. See TEX. R. EVID. 609. The State agrees that

the requisites of Rule 609 were not met but contends that any error associated with the

admission of the evidence was harmless.

Assuming, without deciding, that the trial court erred by admitting evidence of

Simpson’s two prior misdemeanor assault convictions, we cannot say that Simpson was

harmed. Because admission of evidence is subject to non-constitutional error analysis,

we evaluate whether Simpson’s substantial rights were affected. TEX. R. APP. P. 44.2(b).

“A substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex.

Crim. App. 2014). A criminal conviction should not be overturned for non-constitutional

error if, after examining the record as a whole, this Court has fair assurance that the error

did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998). In this analysis, we consider “everything in the record, including

Simpson v. State Page 2 any testimony or physical evidence admitted for the jury’s consideration, the nature of

the evidence supporting the verdict, the character of the alleged error and how it might

be considered in connection with other evidence in the case.” Morales v. State, 32 S.W.3d

862, 867 (Tex. Crim. App. 2000). We also consider the jury instruction given by the trial

court, the State’s theory, any defensive theories, closing argument, and even voir dire, if

material to Simpson’s claim. Id.

Considering the record as a whole, we hold that the trial court’s purported error

in admitting evidence of Simpson’s two prior misdemeanor assault convictions did not

have a substantial and injurious effect or influence on the jury’s verdict. Simpson was

only briefly questioned about the convictions, and he testified that he did not remember

those convictions. No other evidence was introduced regarding these convictions.

Further, after Simpson volunteered that he had a prior conviction for aggravated robbery

for which he served five years in prison, the State questioned Simpson about his prior

convictions for possession of a controlled substance in 2013, retaliation against a witness

in 2016, indecent exposure in 2018, and theft in 2019. Simpson could not recall several of

his prior convictions, but he did admit to serving time in prison for the indecent-

exposure, theft, and possession-of-a-controlled-substance convictions. The State used

Simpson’s prior convictions to rebut Simpson’s insanity defense. This was highlighted

when the State asked Simpson if he had been found criminally insane in any of his prior

criminal cases, and Simpson responded that he had not and that he knows what he is

Simpson v. State Page 3 doing. Additionally, the prosecutor did not emphasize Simpson’s two prior

misdemeanor assault convictions, and immediately at the conclusion of Simpson’s

testimony, the trial judge provided an extraneous-offense instruction prohibiting the jury

from considering any of Simpson’s prior convictions for any purpose.1 See Thrift v. State,

176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (noting that we presume that the jury followed

the trial court’s instructions).

Moreover, the evidence against Simpson included testimony that Simpson entered

a residence that he previously owned, but had been foreclosed on by the bank and re-

purchased by someone else, and stole a bicycle belonging to the homeowner’s special-

needs son. Despite alleging that he owned the house and the bicycle, Simpson

acknowledged that he entered the residence through the front window. Documents

admitted at trial established that Simpson did not own the residence at the time of the

incident, and the homeowner indicated that he did not know Simpson and that Simpson

1 The trial court’s extraneous-offense instruction provided the following:

Okay. Ladies and gentlemen of the Jury, at this time the Court will read to you the following instruction: The State has introduced evidence of extraneous matters other than the one charged in this indictment. You are instructed that said evidence was admitted only for the purpose of showing intent, motive, plan, purpose, scheme, design, or preparation, if any, and for no other purpose. You are further charged that if there is any evidence before you in this case tending to show that the Defendant committed the extraneous transactions, you cannot consider said evidence for any purpose unless you first find and believe beyond a reasonable doubt that the Defendant committed said extraneous transactions. If you find and believe beyond a reasonable doubt from such evidence that the Defendant committed the extraneous transactions, you may then consider the same for the purpose for which it was introduced, namely, as evidence of intent, motive, plan, purpose, scheme, design, or preparation. . . .

Simpson v. State Page 4 did not have the consent of the homeowner to enter the residence and take any property.

Given the above, it is not apparent from the record that the jury placed any measurable

significance on Simpson’s two prior misdemeanor assault convictions. Accordingly, we

conclude that the trial court’s purported error was harmless. We overrule Simpson’s sole

issue on appeal.

Conclusion

We affirm the judgment of the trial court.

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed November 30, 2022 Do not publish [CR25]

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