Affirmed as Modified; Opinion Filed August 8, 2016.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00560-CR
CLEZEL MONTAGUE MUGHNI, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F-1475905-J
MEMORANDUM OPINION Before Justices Francis, Fillmore, and Schenck Opinion by Justice Francis A jury convicted Clezel Montague Mughni of capital murder in the beating death of his
roommate’s fifteen-month-old son. Because the State did not seek the death penalty, punishment
is life in prison without parole. In four issues, appellant complains the trial court erred by (1)
finding a child witness competent to testify, (2) abandoning its neutral and impartial role by
injecting itself into the State’s case, and (3) admitting evidence of unadjudicated extraneous
offenses against two other children who lived in the residence. In a fifth issue, appellant asserts
the evidence is legally insufficient to support his conviction. For the reasons discussed below,
we conclude appellant’s issues are without merit. On the State’s request, we modify the trial
court’s judgment to reflect no possibility of parole. We affirm the judgment as modified. On the morning of June 2, 2014, Dallas Fire Rescue was dispatched on an unresponsive
child call to a Dallas apartment complex. When officers arrived, they found fifteen-month-old
Marquis Johnson lying on a floor. He was pale and cool to the touch and did not have a
heartbeat. Officers began CPR. Officer David Lindsey noticed an obvious injury to Marquis’
right eye, an “inordinate amount” of bumps and bruises, and a pattern of “poke” or “prickly”
marks to his shoulder. His abdomen was “very, very round” and “larger than normal.”
Lindsey asked the adults in the room what was “going on,” and the child’s mother,
Claudia Johnson, said Marquis was so weak he could not hold up his sippy cup. Lindsey asked
what had happened before DFR arrived, and appellant said Marquis had fallen the night before
and had been weak ever since. As Lindsey asked more questions to get information, appellant
would “jump and answer the question” and not let the mother respond, which Lindsey thought
was “really suspicious.”
Marquis was transported to the hospital, where medical personnel likewise observed
bruising to his face and elsewhere on his body as well as “strange marks” on his shoulder.
Despite their efforts, they were unable to revive the child. Mother told the emergency room
doctor that Marquis had fallen in the bathtub, although she did not see it happen. She also said
Marquis had been vomiting for a few days and had a fever.
Dallas police were called to the hospital and met with the medical staff and Marquis’s
mother. The police learned that Marquis lived in the apartment with his mother; two siblings,
four-year-old D’Asia and two-and-a-half-year-old Makayla; appellant; appellant’s long-time
girlfriend, Sasha Mitchell; and Mitchell’s four-year-old son, Isaiah. Police went to the apartment
and took the children and the adults to the Dallas Children’s Advocacy Center for interviews.
Once there, Makayla almost immediately began showing signs of injury. She was lethargic and
unable to walk, was moaning, and had soiled her clothing. At first, workers had her lie down,
–2– but when she began to vomit a green substance, they took her to the hospital with what were
determined to be life-threatening injuries. Her pediatric surgeon testified that a segment of
Makayla’s small intestine “was separated” and she had a lacerated liver. He said the injuries
most likely happened within the previous twenty-four hours, were caused by force moving from
front to back, and could be consistent with an adult male punching her in the abdominal area.
Makayla survived her injuries.
An autopsy was performed on Marquis the same day, and the medical examiner
determined he died of blunt force trauma. Like Makayla, Marquis’ small intestine was “split into
two pieces” and he had a lacerated liver. The medical examiner said the injuries were consistent
with being punched by an adult male, and the person inflicting the kind of force needed to cause
these types of injuries should have known death could result. In addition to these injuries,
Marquis also had bruises to his face, abdomen, and extremities. He had “pattern” injuries,
“almost dot-like” marks, to his shoulder, head, chest, and back, which the medical examiner said
was mostly likely caused by a hair brush. He also had fresh and healed rib fractures and a
fractured skull.
According to the medical examiner, the injury to the small intestine was not “survivable”
for more than a couple of hours, and the liver injury was at least a few days old. The medical
examiner testified the fresh rib facture occurred within twenty-four hours and the healing
fractures could have occurred within a week to two weeks.
At trial, one of the children living in the home, Isaiah, who was then five, testified he
remembered when he lived with his “daddy,” “mommy,” Marquis, Makayla, and D’Asia. When
asked who punished the children when they got in trouble, Marquis said “all of them.” Marquis
then testified that when he got in trouble, his daddy “punched” him in the stomach. He said his
daddy also “punched the other kids,” including Marquis and Makayla. He said Marquis and
–3– Makayla “would cry” because it hurt. He did something called “stand against the wall,” where
he sat against the wall and put his hands up. If he put his hands down, “daddy” would punch
him. He did the same thing to Marquis. Isaiah acknowledged that it had been a long time since
he had seen his daddy and said he did not see him in the courtroom.
After the trial court voiced concern that Isaiah had not connected the hitting of Marquis
to the time frame of his death, Isaiah was recalled without objection. Isaiah acknowledged
testifying earlier and telling the jury “some things.” Then, on questioning by the State, Isaiah
said he remembered the day the red fire truck came to the apartment and, around that time,
Marquis got in trouble and was punched.
Isaiah’s mother, Sasha Mitchell, testified she and appellant had been together since Isaiah
was four months old, and Isaiah called him “daddy.” She, like other witnesses, said appellant
had lost a lot of weight and looked different since his arrest. About two months before Marquis’
death, Johnson and her three children moved into the apartment she and Isaiah shared with
appellant. Appellant told her Johnson needed a place to stay, and Mitchell was unaware they
were having a sexual relationship. Mitchell was the only one who had a job. She said she
worked six to seven days a week, at least eight hours a day, managing a pizza restaurant. She
agreed that “things” had happened in the house that she did not know about because she was not
there. She told the jury that on the day of Marquis’ death, when the fire truck came, the other
children were in another room and remained there the entire time.
Finally, Dallas Police Detective Emilio Henry took appellant’s statement on the day
Marquis died. In his statement, appellant referred to the children living in the apartment as his
“kids” although none was his biological child. He denied ever hitting Marquis with a comb or
brush. But, several minutes into the interview, the detective told appellant that the children’s
interviews were completed, and one of the children reported that appellant punched Marquis in
–4– the stomach that morning. The detective then asked appellant how many times he punched
Marquis, and appellant said “one time.” Then, later he said he did not know what caused
Marquis to collapse and denied disciplining him in the days before his death. The video
recording of appellant’s interview was admitted into evidence.
Appellant was charged with capital murder. The indictment alleged appellant
intentionally and knowingly caused Marquis’ death by striking him with his hand, a brush, or
other unknown object, each alleged as a deadly weapon, and Marquis was under ten years of age
at the time of the offense. After hearing the evidence, the jury convicted him of the charge.
We begin with appellant’s fifth issue in which he argues the evidence is legally
insufficient to support his conviction. His argument is premised on our disregarding evidence
challenged in his other issues on appeal. Specifically, he asserts that if (1) as requested in his
first issue, Isaiah is deemed incompetent to testify, and (2) as requested in the third and fourth
issues, we sustain his complaint to Isaiah’s testimony that appellant struck the children and the
pediatric surgeon’s testimony about Makayla’s injuries as improper extraneous offense evidence,
there will be no evidence that appellant struck Marquis except for his admission that he hit him
one time. The law is well-settled that our review of all of the evidence includes evidence that
was properly and improperly admitted. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App.
2011). Consequently, this complaint is without merit.
Alternatively, appellant asserts that “[e]ven with the evidence unlawfully admitted . . .,
the evidence is not sufficient to sustain a guilty verdict.” He relies on his previous arguments
that three adults had access to Marquis on the day of the offense and no physical evidence shows
he struck Marquis that day or any other day. He also asserts no physical evidence or DNA
evidence shows he used one or more of the brushes seized at the apartment to strike Marquis.
–5– In reviewing a challenge to the sufficiency of the evidence, we examine the evidence in
the light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Therefore, when analyzing the sufficiency
of the evidence, we “determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all of the evidence when viewed in the light most favorable to
the verdict.” Id. Direct and circumstantial evidence are treated equally. Id.
A person commits the offense of capital murder if he intentionally or knowingly causes
the death of a child under ten years of age. TEX. PENAL CODE ANN. § 19.03(a)(8) (West Supp.
2015). It is the obligation and responsibility of the appellate courts “to ensure that the evidence
presented actually supports a conclusion that the defendant committed the crime that was
charged.” Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010); Mayo v. State, 238
S.W.2d 777, 778 (Tex. Crim. App. 1951) (explaining that State has burden of proving beyond a
reasonable doubt that accused was person who committed offense charged).
Marquis died of blunt force trauma. While appellant argues these injuries could have
been caused by blows from a man or woman or from a fall, the jury heard evidence that it was
appellant who punched Marquis in the stomach the day he died. Even appellant was willing to
admit he hit Marquis one time. And although five-year-old Isaiah may not have given a
sequential account of what happened that day and responded to primarily leading questions, his
testimony established that appellant punished the children by hitting them. He testified that as
part of the “stand against the wall” method of punishment, appellant made them sit against the
wall and put up their hands. If they let their hands drop, appellant punched them. He said
–6– appellant punched him in the stomach as well as Marquis and Makayla. He told the jury that
around the time the fire trucks came to the apartment, Marquis got in trouble and appellant
punched him in the stomach. The autopsy showed that Marquis’s small intestine was split in
two, and the medical examiner testified it could be consistent with an adult male punching him in
the abdominal area. He also said such an injury was not survivable for more than two hours, and
a person using that kind of force should have known that death could result. The injuries, he
said, were “not accidental.”
Further, the evidence showed that shortly after Marquis died, Makayla was rushed to the
hospital with the exact same injury. She survived because she received treatment. Like the
medical examiner who performed the autopsy on Marquis’s body, Makayla’s pediatric surgeon
testified the injury could be consistent with an adult male punching her in the abdominal area.
Considering all of the evidence, a rational jury could have found beyond a reasonable doubt that
appellant was the person who intentionally caused Marquis’ death. We overrule the fifth issue.
In his first issue, appellant contends the trial court abused its discretion by finding five-
year-old Isaiah competent to testify.
Isaiah was called to the stand and demonstrated he knew his name and his age. When
asked the color of the prosecutor’s tie, he correctly said red. Isaiah said if the prosecutor told
him the tie was yellow, that would be a lie. He then promised to tell the truth. At that point, the
trial court asked defense counsel if he had any concerns, and counsel replied, “I don’t think he’s
been fully –[.]” The trial court then questioned Isaiah:
[TRIAL COURT]: How are you doing?
[ISAIAH]: Good.
[TRIAL COURT]: Isaiah, do you know the difference between the truth and a lie?
[ISAIAH]: Uh, no.
–7– [TRIAL COURT]: Say it again?
[ISAIAH]: No.
[TRIAL COURT]: No? Do you know the difference between telling the truth ––
[ISAIAH]: Yes.
[TRIAL COURT]: –– and telling a lie?
[TRIAL COURT]: Yes?
[ISAIAH]: (Nods head).
[TRIAL COURT]: Okay. And you understand that here in court, you have to tell the truth?
[TRIAL COURT]: You understand that?
[ISAIAH]: Yes, ma’am.
[TRIAL COURT]: Okay. When you don’t tell the truth what happens to you?
[ISAIAH]: You get in trouble.
[TRIAL COURT]: You get in trouble. Okay. So you understand it’s important that you tell the truth here, right?
The trial court asked if either the State or defense had “[a]nything else” regarding
“qualifying this young man,” and both said no. Isaiah then testified without any objection by
appellant. To preserve an issue for appellate review, an appellant must make a specific objection
to the trial court at the time the alleged error arises and must obtain a ruling on the objection.
TEX. R. APP. P. 33.1(a). Because appellant did not object to Isaiah’s competency to testify,
appellant has failed to preserve the issue and may not raise it for the first time on appeal. See De
Los Santos v. State, 219 S.W.3d 71, 80 (Tex. App.—San Antonio 2006, no pet.).
–8– Even if the issue had been preserved, appellant has not shown the trial court erred by
finding Isaiah competent to testify. The competency of a witness is an issue to be resolved by
the trial court, and that decision will not be disturbed on appeal absent an abuse of discretion. Id.
Texas Rule of Evidence 601 provides as follows:
(a) In General. Every person is competent to be a witness unless these rules provide otherwise. The following witnesses are incompetent:
***
(2) Persons Lacking Sufficient Intellect. A child––or any other person– –whom the court examines and finds lacks sufficient intellect to testify concerning the matters in issue.
TEX. R. EVID. 601.
The considerations in determining a child witness’s capacity to narrate involve “both an
ability to understand the questions asked and to frame intelligent answers and . . . a moral
responsibility to tell the truth.” Torres v. State, 33 S.W.3d 252, 255 (Tex. Crim. App. 2000)
(quoting Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App. 1980)). There is no certain age
below which a child is automatically deemed incompetent to testify. De Los Santos, 219 S.W.3d
at 80. In evaluating a child witness’s competency, the court examines the child’s responses to
qualification questions as well as the child’s entire testimony. Id. at 81.
Once the trial court determined Isaiah was competent, Isaiah went on to show that he
knew the date of his birth and the name of his school. He said his favorite part of school was
playing outside and gave the name of his best friend. During specific questioning by the State,
Isaiah testified his father punished the children by punching them in the stomach and testified
about a form of punishment called, “stand against the wall.” Although he did not recognize
appellant in the courtroom as his father, the record showed he had not seen him in a long time
and appellant, who weighed over 300 pounds at the time of the incident, had lost a lot of weight.
–9– On cross-examination, he named his favorite television show but could not say what they
do on the show. On specific questions from defense counsel, he said he and his father played
Mr. America and Incredible Hulk and he played the part of Mr. America but could not fly like
Mr. America. He also said they would hit each other while playing and they had fun, indicating
that he could distinguish between a playful hit and punishment. When asked if his daddy was
good to him, he said no.
Overall, the record shows Isaiah knew the difference between a truth and a lie,
understood there were consequences for not telling the truth (“you get in trouble”), and said he
understood it was important to tell the truth. He answered questions about his father’s pattern of
disciplining the children by punching them in the stomach, and his answers indicated he
understood the questions asked. He knew the difference between a playful hit and a hit intended
to hurt him. Although appellant complains Isaiah did not give “narrative” testimony, the fact
that he seemed to respond best to leading questions does not mean he lacked the intelligence or
capacity to narrate events. Considering all of Isaiah’s responses, we conclude the trial court did
not abuse its discretion by finding him competent to testify. We overrule the first issue.
In his second issue, appellant argues the trial court abused its discretion “when it injected
itself into State’s case and told the prosecutor how to present evidence so that testimony of the
child witness would be found by the court to be relevant and admissible.” This issue concerns
Isaiah’s appearance before the jury.
During Isaiah’s initial testimony, he said his “daddy” punished him and the other
children, including Marquis and Makayla, by punching them in the stomach. The prosecutor also
asked if the children “have to do something called ‘stand against the wall?’” Isaiah said “yes.”
As the prosecutor demonstrated a seated position against a wall, Isaiah said he had to put his
–10– hands up and, if he lowered them, his “dad” would punch him. Isaiah said he did the same to
Marquis.
Later that day, after Isaiah had been excused subject to recall, the trial judge voiced
concern to the State about the purpose of Isaiah’s testimony and specifically that it was not
connected to “this particular offense.” The trial judge said it was her understanding “from our
conversation” that Isaiah was a witness to what happened to Marquis, “and that is clearly not
what you put on the record before.” Without a temporal link, the judge said the testimony was
nothing more than a “list of extraneous offenses” and warned “we may be looking at that
testimony either being stricken from the record or a possible mistrial.” The judge told the State
if it could “connect this child’s testimony to the particular offense that we’re here on or in some
way give me some idea of how close it is to it, then I can make a better determination whether it
is relevant or not.”
The State took the position that the evidence, even without a temporal link, was
admissible “under 404(b) to “show an absence of mistake, the same M.O., the same plan” but
said it would move forward “as the Court had instructed.” After further discussion on the issue,
the following colloquy occurred:
[TRIAL COURT]: And, [Defense Counsel], you can put on the record whatever you need to put on.
[DEFENSE COUNSEL]: I won’t put anything on the record at this time.
[TRIAL COURT]: I’m pretty sure I know what the objection would be if you would put it on, but okay.
All right. Go ahead and get the jury.
You think I’m helping the State.
[DEFENSE COUNSEL]: I didn’t say a word.
The State then recalled Isaiah to testify about the timing of the events he had earlier
described. Isaiah said he remembered when the red fire trucks came to his apartment, and said –11– Marquis got “in trouble” and was punched around that time. Defense counsel lodged no
objection.
Appellant argues the trial court abandoned its position as a neutral and impartial arbiter
and took on the role as advocate by “giving advice” to the prosecutor on how to get certain
evidence admitted. He asserts the trial court’s actions were to “the detriment” of his rights to a
fair trial.
Most appellate complaints must be preserved by a timely request for relief at the trial
court level. See TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App.
2013); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds
by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Even claims involving
constitutional error, including claims that due process rights have been violated, must be
preserved by objection or are waived. Hull v. State, 67 S.W.2d 215, 218 (Tex. Crim. App.
2002); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). More specifically, where
no objection is made, remarks and conduct of the court may not be subsequently challenged
unless they rise to the level of fundamental error. Brewer v. State, 572 S.W.2d 719, 721 (Tex.
Crim. App. [Panel Op.] 1978).
The Texas Court of Criminal Appeals has granted relief on an improper judicial comment
complaint that was not preserved at trial. See Blue v. State, 41 S.W.3d 129 (Tex. Crim. App.
2000) (plurality op.). There, the trial judge apologized to the jurors about the delay in the case,
telling them the defendant was still deciding whether to accept the State's offer or go to trial. The
trial judge told the jurors he would “prefer the defendant to plead” because it would give him
“more time to get things done.” Id. at 130. A plurality of the Court decided the judge’s remarks
vitiated the defendant’s presumption of innocence and were fundamental error of constitutional
dimension that required no objection. Id. at 131–32. Since Blue, the Court has explained it is
–12– without “precedential value” as a plurality opinion and may only be considered for any
persuasive value it may have. Unkart, 400 S.W.3d at 101. The complained-of conduct in this
case, however, did not implicate appellant’s “presumption of innocence,” so any “persuasive
value” Blue could have is simply not present.
Here, appellant did not object even when given the opportunity by the trial court.
Because the record does not demonstrate the unique circumstances that would allow us to review
the issue in the absence of objection, we conclude appellant has failed to preserve this complaint
for our review. We overrule second issue.
In his third and fourth issues, appellant argues the trial court erred by admitting evidence
of unadjudicated extraneous offenses of injury to a child, involving Isaiah and Makayla. His
third issue challenges Isaiah’s testimony that his father punched him; he does not challenge
Isaiah’s testimony that appellant punched Marquis on the day Marquis died. His fourth issue
challenges the admission of evidence that Marquis’ sister, Makayla, was taken to the hospital the
same day with abdominal injuries.
The issue of extraneous offense evidence came up in a pretrial hearing when the State
told the court that one of its witnesses, Johnson’s oldest child, D’Asia, had become unavailable
due to her Asperger’s syndrome. The prosecutor then indicated it would offer evidence of
Makayla’s injuries, which he believed was admissible because she suffered the same injuries as
Marquis. The trial court asked if the parties wanted a hearing outside the presence of the jury,
and defense counsel said he would “wait to hear it as it comes in; and if I deem it necessary to
have a hearing outside the presence of the jury, I will approach.”
On the first day of trial, after the jury was selected, the State confirmed its intent to put on
evidence of injuries to Isaiah and Makayla as same transaction contextual evidence. The trial
court asked defense counsel his position, and he responded, “At this present moment in time, I’m
–13– gonna object. I don’t know how they – I mean, I will agree that they’re closely related, but I
think they can be separated. Now, as the testimony rolls out, my opinion might change, but at
this moment in time –[.]” The State went on to explain Isaiah would testify to abuse that
happened to him and all the children and said the story “is kind of all intertwined.” As the State
explained, on the same day Marquis died, Makayla was rushed to the hospital with the same
injuries. The trial court instructed the State to approach the bench before bringing the matter up
and said it would then rule.
The next day, before testimony began in the State’s case-in-chief, the trial court ruled that
Isaiah would be allowed to testify to the extraneous offenses, based on the State’s representations
that the facts were intertwined and the child would be testifying, not just about what he observed,
but also about “things that happened to him.” Further, the court stated it understood appellant
was “objecting to it” and said it would allow him to “make any objections that you feel are
outside of the scope of what I’m ruling on right now.” Appellant asked for a “running objection”
and said he would make additional objections if needed. He made no other objections before,
during, or after Isaiah’s testimony.
In his brief, appellant sets out the law regarding extraneous offenses and same transaction
contextual evidence. He does not, however, argue or apply this law to the facts in this case.
Instead, his analysis is solely devoted to whether the evidence was inadmissible under Texas
Rule of Evidence 403.
An objection that proffered evidence amounts to proof of an extraneous offense does not
suffice, by itself, to invoke a ruling from the trial court as to whether the evidence, assuming it
has relevance apart from character conformity, is nevertheless subject to exclusion on the ground
of unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on
reh’g). An objection based upon rule 403 is required. Id.
–14– Although appellant objected only generally to Isaiah’s testimony, the context of the
above discussions suggests he was objecting to extraneous offense evidence. The record does
not indicate, however, that he made any objection under rule 403, the only basis argued in his
brief. Consequently, this complaint is waived. To the extent appellant complains the trial court
abused its discretion by allowing the surgeon to testify regarding Makayla’s injuries or the CPS
worker to testify regarding Makayla’s condition at the Advocacy Center, he did not object, and
nothing in the record suggests the trial court’s granting of a running objection to Isaiah’s
testimony was extended to these two witnesses. Even if the running objection extended to these
witnesses, appellant has briefed only a rule 403 complaint. Accordingly this complaint is
likewise waived. We overrule issues three and four.
Finally, the State asserts the judgment should be modified to reflect the sentence as life
without parole. A person convicted of a capital felony in a case where the State does not seek
the death penalty shall be imprisoned in TDCJ for life without parole if the person who
committed the offense is eighteen years of age or older. TEX. PENAL CODE ANN. § 12.31(a)(2)
(West Supp. 2015). The record shows appellant was twenty-seven years old on the date of the
offense.
We have authority to correct a judgment below to make the record “speak the truth”
when we have the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526,
529 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we modify the trial court’s judgment to
reflect a sentence of life without parole.
–15– We affirm the judgment as modified.
/Molly Francis/ MOLLY FRANCIS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 150560F.U05
–16– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CLEZEL MONTAGUE MUGHNI, On Appeal from the Criminal District Court Appellant No. 3, Dallas County, Texas Trial Court Cause No. F-1475905-J. No. 05-15-00560-CR V. Opinion delivered by Justice Francis; Justices Fillmore and Schenck participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect punishment as life without parole.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 8th day of August, 2016.
–17–