AFFIRM; Opinion Filed June 10, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00528-CR No. 05-23-00529-CR No. 05-23-00530-CR DARIUS TREMAINE BRADFORD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause Nos. 416-83866-2022, 416-81217-2023, 416-81218-2023
MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Kennedy Darius Tremaine Bradford appeals his three convictions of burglary of a
habitation with the intent to commit the felony of invasive visual recording. In each
case, a jury assessed a life sentence in the Texas Department of Criminal Justice. In
two issues, appellant asserts that the jury charges were erroneous and claims that the
punishments assessed were grossly disproportionate to the offenses of which he was
convicted in violation of his rights under the Eighth Amendment. We affirm the trial
court’s judgments. Because all issues are settled in law, we issue this memorandum
opinion. TEX. R. APP. P. 47.4. BACKGROUND
Appellant was a maintenance worker for the apartment complex in which he
and the complainant lived. His duties as a maintenance worker included the repair
of air conditioning units. On multiple occasions, he entered the complainant’s
apartment in response to requests for repairs to her air conditioning unit. The
complainant noticed that nearly every time he visited to make repairs, appellant
would leave his tool bag in the bathroom, explaining that the air conditioning motor
was located there. She also noticed that he would leave his phone in the tool bag,
which seemed “weird because generally one would keep your phone close.” On one
such visit, appellant asked to borrow the complainant’s key because he did not have
a copy, and she asked him to text her when he completed the repair, so she could
retrieve her key from him. Appellant sent her text messages asking her if she was
happily married and asking how he could find “a woman like you, beautiful, sweet
and sexy.”
On August 24, 2022, appellant arrived at the complainant’s apartment in
response to another request to repair the air conditioning unit. The complainant
informed appellant she needed to take a shower and get ready for work. As he had
done on previous occasions, appellant asked the complainant if he could leave his
tool bag in her bathroom. When she went to the bathroom, the complainant noticed
a box in the tool bag prompting her to examine the contents. She quickly discovered
a phone inside the box and believed it to be recording her. Upset and afraid because
–2– she thought appellant was in her living room and they were the only individuals
there, the complainant took the box containing the phone from the tool bag and
placed it into a shopping bag. When she left the bathroom, the complainant saw that
appellant was returning to her apartment with a ladder. She left her apartment and
drove to the apartment management office. The complainant appeared “hysterical”
to the manager of the apartment complex when she arrived and handed the manager
the shopping bag.
The manager took the box containing the phone from the shopping bag and
found several videos she believed to have been taken without the permission of the
individuals depicted therein. She called the Plano Police Department and her
supervisor. She also recorded the contents of the phone, as the phone showed
notifications and signs that it was being remotely wiped.
The ensuing Plano Police Department’s investigation found 49 videos of 23
individuals, many of whom were unidentified. However, it was apparent from the
videos that the recordings were made without the individuals’ consent.1 Review of
those videos revealed that appellant had not only recorded the complainant on
August 24, but also on July 30 and August 18 of 2022. Detectives discovered that
appellant had a private photo vault and application to remotely wipe the hard drive.
1 One example repeated across several videos was that while asking a sales associate at a retail store for assistance appellant would aim his camera to record the associate from beneath her skirt. Other videos appeared to be recorded in the home of the individual, as was the case with several videos of the complainant in which she was recorded in various stages of undress. –3– In addition, they found appellant had conducted online searches for spy cameras.
Detectives found and seized additional phones and cameras, as well as large bag of
keys, from appellant’s apartment. Some of the keys were labeled as belonging to
the apartment complex, and the apartment manager indicated that all of the keys
looked as though they belonged to the apartment complex, which appellant was not
authorized to keep.
Appellant was indicted for three counts of burglary of a habitation with the
intent to commit the felony of invasive visual recording. See TEX. PENAL CODE
§ 30.02(d). The offenses were alleged to have occurred on July 30, August 18, and
August 24 of 2022 and to have involved the complainant.
Appellant pleaded guilty to the three offenses as charged. He exercised his
right to a jury determination as to punishment in all three cases. The jury heard
testimony of the complainant’s discovery of appellant’s phone in his tool bag and
the subsequent police investigation, as well as evidence of a 2008 conviction in
which appellant was found guilty of invasive visual recording and a 2010 incident
when appellant used his phone to record a woman changing clothes in a store without
her consent. The jury also heard from appellant’s ex-girlfriend who testified that
while she and her minor daughter lived with appellant he made video recordings of
them without their knowledge or consent. She described the intricate system
appellant had set up in the bathroom of his residence, including a mirror placed on
the floor, to capture the videos. The complainant, appellant’s ex-girlfriend, and the
–4– woman whom appellant recorded without her consent in 2010 all testified about the
negative impact appellant’s actions had on them.
At the conclusion of the punishment phase of trial, the jury assessed
punishment at life imprisonment in each case. This appeal followed.
DISCUSSION
Appellant raises two issues on appeal. First, he asserts that the jury charge
was impermissibly suggestive by placing the paragraph containing the option for a
life sentence before the paragraph containing a timeframe of incarceration. Second,
he claims that the punishment is so disproportionate to the crimes he was convicted
of that it violates the Eighth Amendment of the Constitution and Article One of the
Texas Constitution. See U.S. CONST. amend. 8; TEX. CONST. art. 1, § 13.
The jury charge was proper.
We review jury charge error under a two-pronged test, by looking first to
whether the charge is erroneous. Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim.
App. 2022) (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)).
Second, if we conclude the charge is erroneous, we ask whether appellant was
harmed by the error. Id. (citing Wooten, 400 S.W.3d at 606; Ngo v. State, 175
S.W.3d 738, 744 (Tex. Crim. App. 2005)). Where there was a timely objection,
appellant must show she suffered “some harm.” Id.
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AFFIRM; Opinion Filed June 10, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00528-CR No. 05-23-00529-CR No. 05-23-00530-CR DARIUS TREMAINE BRADFORD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause Nos. 416-83866-2022, 416-81217-2023, 416-81218-2023
MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Kennedy Darius Tremaine Bradford appeals his three convictions of burglary of a
habitation with the intent to commit the felony of invasive visual recording. In each
case, a jury assessed a life sentence in the Texas Department of Criminal Justice. In
two issues, appellant asserts that the jury charges were erroneous and claims that the
punishments assessed were grossly disproportionate to the offenses of which he was
convicted in violation of his rights under the Eighth Amendment. We affirm the trial
court’s judgments. Because all issues are settled in law, we issue this memorandum
opinion. TEX. R. APP. P. 47.4. BACKGROUND
Appellant was a maintenance worker for the apartment complex in which he
and the complainant lived. His duties as a maintenance worker included the repair
of air conditioning units. On multiple occasions, he entered the complainant’s
apartment in response to requests for repairs to her air conditioning unit. The
complainant noticed that nearly every time he visited to make repairs, appellant
would leave his tool bag in the bathroom, explaining that the air conditioning motor
was located there. She also noticed that he would leave his phone in the tool bag,
which seemed “weird because generally one would keep your phone close.” On one
such visit, appellant asked to borrow the complainant’s key because he did not have
a copy, and she asked him to text her when he completed the repair, so she could
retrieve her key from him. Appellant sent her text messages asking her if she was
happily married and asking how he could find “a woman like you, beautiful, sweet
and sexy.”
On August 24, 2022, appellant arrived at the complainant’s apartment in
response to another request to repair the air conditioning unit. The complainant
informed appellant she needed to take a shower and get ready for work. As he had
done on previous occasions, appellant asked the complainant if he could leave his
tool bag in her bathroom. When she went to the bathroom, the complainant noticed
a box in the tool bag prompting her to examine the contents. She quickly discovered
a phone inside the box and believed it to be recording her. Upset and afraid because
–2– she thought appellant was in her living room and they were the only individuals
there, the complainant took the box containing the phone from the tool bag and
placed it into a shopping bag. When she left the bathroom, the complainant saw that
appellant was returning to her apartment with a ladder. She left her apartment and
drove to the apartment management office. The complainant appeared “hysterical”
to the manager of the apartment complex when she arrived and handed the manager
the shopping bag.
The manager took the box containing the phone from the shopping bag and
found several videos she believed to have been taken without the permission of the
individuals depicted therein. She called the Plano Police Department and her
supervisor. She also recorded the contents of the phone, as the phone showed
notifications and signs that it was being remotely wiped.
The ensuing Plano Police Department’s investigation found 49 videos of 23
individuals, many of whom were unidentified. However, it was apparent from the
videos that the recordings were made without the individuals’ consent.1 Review of
those videos revealed that appellant had not only recorded the complainant on
August 24, but also on July 30 and August 18 of 2022. Detectives discovered that
appellant had a private photo vault and application to remotely wipe the hard drive.
1 One example repeated across several videos was that while asking a sales associate at a retail store for assistance appellant would aim his camera to record the associate from beneath her skirt. Other videos appeared to be recorded in the home of the individual, as was the case with several videos of the complainant in which she was recorded in various stages of undress. –3– In addition, they found appellant had conducted online searches for spy cameras.
Detectives found and seized additional phones and cameras, as well as large bag of
keys, from appellant’s apartment. Some of the keys were labeled as belonging to
the apartment complex, and the apartment manager indicated that all of the keys
looked as though they belonged to the apartment complex, which appellant was not
authorized to keep.
Appellant was indicted for three counts of burglary of a habitation with the
intent to commit the felony of invasive visual recording. See TEX. PENAL CODE
§ 30.02(d). The offenses were alleged to have occurred on July 30, August 18, and
August 24 of 2022 and to have involved the complainant.
Appellant pleaded guilty to the three offenses as charged. He exercised his
right to a jury determination as to punishment in all three cases. The jury heard
testimony of the complainant’s discovery of appellant’s phone in his tool bag and
the subsequent police investigation, as well as evidence of a 2008 conviction in
which appellant was found guilty of invasive visual recording and a 2010 incident
when appellant used his phone to record a woman changing clothes in a store without
her consent. The jury also heard from appellant’s ex-girlfriend who testified that
while she and her minor daughter lived with appellant he made video recordings of
them without their knowledge or consent. She described the intricate system
appellant had set up in the bathroom of his residence, including a mirror placed on
the floor, to capture the videos. The complainant, appellant’s ex-girlfriend, and the
–4– woman whom appellant recorded without her consent in 2010 all testified about the
negative impact appellant’s actions had on them.
At the conclusion of the punishment phase of trial, the jury assessed
punishment at life imprisonment in each case. This appeal followed.
DISCUSSION
Appellant raises two issues on appeal. First, he asserts that the jury charge
was impermissibly suggestive by placing the paragraph containing the option for a
life sentence before the paragraph containing a timeframe of incarceration. Second,
he claims that the punishment is so disproportionate to the crimes he was convicted
of that it violates the Eighth Amendment of the Constitution and Article One of the
Texas Constitution. See U.S. CONST. amend. 8; TEX. CONST. art. 1, § 13.
The jury charge was proper.
We review jury charge error under a two-pronged test, by looking first to
whether the charge is erroneous. Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim.
App. 2022) (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)).
Second, if we conclude the charge is erroneous, we ask whether appellant was
harmed by the error. Id. (citing Wooten, 400 S.W.3d at 606; Ngo v. State, 175
S.W.3d 738, 744 (Tex. Crim. App. 2005)). Where there was a timely objection,
appellant must show she suffered “some harm.” Id. (quoting Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)) (citing TEX. CODE CRIM.
PROC. art. 36.19). Where there was no timely objection, appellant must show she
–5– suffered egregious harm, which we determine by considering the jury charge as a
whole, the issues raised by the parties, the evidence at trial, and “anything else in the
record that informs our analysis.” Id. (quoting Lozano v. State, 636 S.W.3d 25, 29
(Tex. Crim. App. 2021)).
In all three cases, the charged offenses were first-degree felonies subject to
either a life sentence or a term between 5 years’ and 99 years’ confinement and a
fine. See PENAL § 12.32. Appellant contends that breaking the jury charge into two
paragraphs, with the life sentence paragraph first, improperly suggested to the jury
to choose that option.
The trial court shall deliver a written charge distinctly setting forth the
applicable law to the case. CRIM. PROC. art. 36.14. Generally, a jury charge that
tracks statutory language is not erroneous. Lewis v. State, No. 14-21-00691-CR,
2023 WL 4873306, at *7 (Tex. App.—Houston [14th Dist.] Aug. 1, 2023, pet. ref’d)
(citing Casey v. State, 215 S.W.3d 870, 888 (Tex. Crim. App. 2007) (holding that
charge tracking language of statute was not erroneous and “declin[ing] appellant's
invitation to act as a super-legislature and rewrite [the statute]”); Martinez v. State,
924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (“Following the law as it is set out by
the Texas Legislature will not be deemed error on the part of a trial judge.”)).
The only issue presented to the jury was punishment, which the court broke
into two paragraphs that laid out two options for punishment as follows:
–6– We, the Jury, find the Defendant guilty of Burglary of a Habitation, as charged in the indictment, and assess punishment at LIFE confinement in the Texas Department of Criminal Justice, Correctional Institutions Division, and a fine in the amount of $ (answer with a dollar amount or “None”).
OR,
We, the Jury, find the Defendant guilty of Burglary of a Habitation, as charged in the indictment, and assess punishment at (5 to 99) years confinement in the Texas Department of Criminal Justice, Correctional Institutions Division, and a fine in the amount of $ (answer with a dollar amount or “None”).
Each charge tracked the relevant statute, setting forth punishment options for
the convictions. See PENAL § 12.32(a) (“An individual adjudged guilty of a felony
of the first degree shall be punished by imprisonment in the Texas Department of
Criminal Justice for life or for any term of not more than 99 years or less than 5
years.”).
Appellant urges that the charges are erroneous because they provided two
separate paragraphs for the jury to choose from in assessing its punishment, instead
of one paragraph, which increased the risk that the jury would only consider life
confinement instead of the full range of punishment. He similarly argues that by
placing the life option first, the charges unfairly drew the jury’s attention to it.
However, the record is clear the trial court instructed the jury that it must decide
whether to sentence appellant to a term between five and ninety-nine years or life in
prison. Absent evidence indicating otherwise, we presume the jurors followed the
trial court’s instructions. See Estelle v. State, No. 05-11-00353-CR, 2013 WL –7– 222268, at *4 (Tex. App.—Dallas Jan. 16, 2013, no pet.) (mem. op., not designated
for publication) (citing Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App.
2009)). There is no evidence the jury in these cases ignored the trial court’s
instructions and did not consider the full range of punishment. Accordingly, we
cannot conclude any of the charges were erroneous.
We overrule Appellant’s first issue.
Appellant’s Eighth Amendment argument was waived.
In his second issue, appellant asserts his sentences were disproportionate to
his crimes. He failed to object to the sentence at trial, but argues that the motion for
new trial sufficiently preserved the issue for appeal. See TEX. R. APP. P. 33.1(a)(1).
An objection must be made at the earliest possible opportunity. Gillenwaters v.
State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). A sentencing issue may be
preserved by objection at the punishment hearing, or when the sentence is
pronounced. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013). A
defendant may not raise a matter for the first time in a motion for new trial if they
had the opportunity to raise it at trial. Colone v. State, 573 S.W.3d 249, 260 (Tex.
Crim. App. 2019). Even a constitutional right may be forfeited by failure to object
at trial. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004).
Appellant did not object to the verdicts when they were read. He failed to
raise any objection after the verdicts and before the conclusion of the hearing.
Because there was opportunity at trial to object and appellant failed to do so, he –8– could not raise the matter for the first time in his motion for new trial. See Colone,
573 S.W.3d at 260 (holding appellant failed to preserve due-process complaint in
motion for new trial because he had opportunity to raise the matters at trial).
Moreover, even if appellant’s complaint about the sentences could have been
raised for the first time in his motion for new trial, he was required to “present” that
motion to the trial court. Stokes v. State, 277 S.W.3d 20, 21 n.1 (Tex. Crim. App.
2009) (citing TEX. R. APP. P. 21.6). Rule 21.6 states: “The defendant must present
the motion for new trial to the trial court within 10 days of filing it, unless the trial
court in its discretion permits it to be presented and heard within 75 days from the
date when the court imposes or suspends sentence in open court.” TEX. R. APP. P.
21.6. Nothing in the record indicates appellant sustained the burden of actually
delivering the motion to the trial court or otherwise bringing the motion to the
attention of the trial court. See Stokes, 277 S.W.3d at 22 (listing examples of how
record might show presentment, including “obtaining the trial court’s ruling on the
motion for new trial[,] . . . the judge’s signature or notation on a proposed order or
by a hearing date set on the docket”). Accordingly, appellant’s complaint about his
sentence was not properly preserved.
We overrule appellant’s second issue.
–9– CONCLUSION
We affirm the trial court’s judgments.
/Nancy Kennedy/ NANCY KENNEDY JUSTICE DO NOT PUBLISH TEX. R. APP. P. 47
230528F.U05
–10– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DARIUS TREMAINE BRADFORD, On Appeal from the 416th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 416-83866- No. 05-23-00528-CR V. 2022. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Kennedy. Justices Molberg and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 10th day of June, 2024.
–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DARIUS TREMAINE BRADFORD, On Appeal from the 416th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 416-81217- No. 05-23-00529-CR V. 2023. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Kennedy. Justices Molberg and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DARIUS TREMAINE BRADFORD, On Appeal from the 416th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 416-81218- No. 05-23-00530-CR V. 2023. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Kennedy. Justices Molberg and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–13–