Demarcus Antwon Chatmon v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 9, 2021
• Docket: 09-19-00238-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00238-CR __________________

DEMARCUS ANTWON CHATMON, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 18-30651 __________________________________________________________________

MEMORANDUM OPINION

After a jury found him guilty on an indictment alleging that Chatmon

assaulted a woman while using a deadly weapon, Demarcus Antwon Chatmon

appealed.1 On appeal, Chatmon filed a brief raising three issues. In the first two of

his issues, Chatmon argues the trial court violated his right to confront the witnesses

1 See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2). Additionally, the record reflects that Demarcus Antwon Chatmon is also known as Demarcus Wayne Chapman, Demarcus Chatmon, Demarcus A. Chatmon, Demarcus Wayne Chapmon, and Demarcus Antoine Chapmon. 1 who testified against him when the court admitted recordings from a 911 call and a

recording from a police officer’s body-camera into evidence in his trial. All three

recordings have statements in them that were made by witnesses whom the State

failed to call to testify during Chatmon’s trial. 2 In issue three, Chatmon argues the

trial court violated his rights by supplementing the charge with an additional

instruction after final argument in the case had commenced.3 Because Chatmon’s

arguments lack merit, we will affirm.

Background

In October 2018, several police officers from the Beaumont Police

Department were dispatched to a home following the report that a shooting had

occurred on San Jacinto Street in Beaumont, Texas. Before some of the officers who

responded to the scene entered the home, Chatmon’s mother, while standing outside

the home’s front door, asked the officers who were standing outside the house not

to shoot Chatmon and she would get him to surrender to the police. When Chatmon

came out he surrendered, and the police took him into custody. While some of the

officers secured Chatmon, two others entered the residence. They found Mika,

Chatmon’s sister-in-law, inside. They also discover that Mika had suffered a gunshot

2 See U.S. CONST. amend. VI. 3 Tex. Code Crim. Proc. Ann. art. 36.16. 2 wound to her abdomen. 4 The officers who are outside the home also find a .45 caliber

pistol in the front yard.

About a month later, a Jefferson County grand jury indicted Chatmon for

aggravated assault. The indictment alleges that Chatmon knowingly, intentionally,

or recklessly shot Mika with a gun. In June 2019, the case went to trial. Chatmon

pleaded not guilty. In opening statement, the prosecutor told the jury the State faced

the “difficult task of trying to prove this aggravated assault without the cooperation

of [Mika].” When presenting its case, the State did not call any witnesses who

testified during the trial that they were inside the home and saw the shooting when

it occurred. Instead, the State called three Beaumont police officers, Jason Alpers,

Andrew Carrier, and Jeremy Shoemaker, some of the officers who went to

Chatmon’s home in response to the 911 calls for assistance, to testify in Chatmon’s

trial. The State also called Lindsey Macha, an investigator who participated in the

investigation of the shooting in her capacity as an employee of the City of

Beaumont’s Criminal Investigations Division.

4 Because the Texas constitution grants crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process,” we use a fictitious name to identify the individual identified in the indictment as the victim of the alleged crime. See Tex. Const. art. I, § 30.

3 On appeal, Chatmon complains about three recordings the trial court admitted

into evidence over Chatmon’s objections to them in his trial. He argues all three

recordings contain testimonial statements made by witnesses who never testified in

his trial, arguing that admitting their testimony violated his right to confront the

witnesses who testified against him in his trial.

One of the recordings is a 911 call, placed by Terry Cartwright, Chatmon’s

brother. In that recording, Cartwright tells the 911 operator that his brother (a brother

he never names) shot their sister-in-law. Chatmon also complains about the second

of the 911 calls the trial court admitted into evidence in the trial. It contains

statements made by Billy Ware Jr., who called 911 from a shop near Chatmon’s

home. This recording reflects that, when Ware called 911, he told the 911 operator

that Deterrick Cartwright (a person Chatmon’s mother testified is Chatmon’s

brother) came up to him seeking his help because someone at Chatmon’s home had

been shot. In the recording, Ware never identifies Chatmon as the person who shot

Mika.

In addition to complaining about these two 911 recordings, Chatmon

complains the trial court erred by admitting some of the footage taken from a body

camera worn by Officer Shoemaker while at the scene. The footage the jury saw

begins with Officer Shoemaker and other officers standing in the driveway of

Chatmon’s home while Chatmon’s mother is offering to surrender Chatmon to the

4 police. Neither Chatmon’s mother, nor Chatmon, state in the footage that Chatmon

shot the person the police find a short time later after entering Chatmon’s home. The

footage the jury saw also shows that Officer Shoemaker and another officer entered

Chatmon’s home while other officers, who are outside the home, are securing

Chatmon at the scene.

In the footage depicting what happened when Officer Shoemaker first enters

the home, Mika is seen bending over near a passage as Officer Shoemaker and

another officer go inside. Mika is hysterical. She can be heard screaming for help.

She volunteers: “Why did he do this to me?” Officer Shoemaker assures Mika that

he has an ambulance on the way. When Officer Shoemaker asks Mika to sit down,

she moves out of the way. When she moves out of the passage, two other officers

that followed Shoemaker into the home are seen as they disappear from view when

they enter another room of the home. Apparently, the officers are searching the house

to determine whether others are still inside. Officer Shoemaker, however, stays with

Mika. She is heard complaining her legs are going numb. Officer Shoemaker asks

Mika to “stay with me.”

Before the officers who entered the home behind Officer Shoemaker return to

the room where Officer Shoemaker is standing with Mika, Officer Shoemaker asks

Mika: “What happened?” Mika replies: “He just [went] around shooting.” Next,

Officer Shoemaker asked Mika: “Who?” Mika responds: “That boy.” About twenty

5 second later, the officers who searched the back part of the house return to the room

where Officer Shoemaker is attempting to assess the situation on the scene. None of

the officers who return to the room can be heard stating, while in Officer

Shoemaker’s presence, that they have secured the home. At that point, Officer

Shoemaker calls the dispatcher by using a mic attached to the equipment he is

carrying on his uniform. Officer Shoemaker tells the dispatcher that Mika suffered

a gunshot to her abdomen. He then asks Mika: “How many shots did you hear.”

Mika responds: “He shot twice. . . he just went around shooting.” Officer Shoemaker

asks: “Who.” Mika answers: “Demarcus Chatmon.”

After the State rested, Chatmon called two witnesses to testify in his defense,

Phyllis Mathis (Chatmon’s mother) and Billy Ware Jr. (whom Cartwright

approached and asked to call 911). Mathis testified first. She testified she has eight

sons. She testified she didn’t know which son shot Mika. Explaining why she

surrendered Chatmon, Mathis testified that she had Chatmon come outside and

surrender after she saw the police approaching the house after drawing their guns.

According to Mathis, she didn’t want Chatmon killed as the police were entering the

home.

Billy Ware Jr. was Chatmon’s next witness. Ware testified he was working at

a shop near Chatmon’s home when he heard the sound of gunfire from a location

somewhere near the shop. Shortly after hearing the gunfire, Ware saw Chatmon’s

6 brother, Terry Cartwright, running towards the shop. Cartwright approached Ware,

stated he needed help, and said someone had been shot. Ware called 911. After

calling 911, Ware went to Chatmon’s house. Ware explained he watched the house

from across the street along with several other onlookers who came to the scene.

Ware also testified he knew that a party had been going on at Chatmon’s home the

day of the shooting. According to Ware, everyone attending the party was “doing

drugs.” Ware also testified he saw the police take Chatmon into custody while he

was watching the home. According to Ware, Chatmon was on drugs and did not

appear to be in “his right state of mind” based upon what he saw when the officers

took Chatmon from the scene.

After the trial court read the charge, Chatmon’s attorney began final argument.

The original charge, which the trial court read to the jury, does not contain any

instructions about voluntary intoxication and whether voluntary intoxication is a

defense to an indictment charging a defendant with a crime. In final argument,

Chatmon’s attorney argued: “No one claimed that Chatmon was in his right state of

mind [or] knew what he was doing.” Then, Chatmon’s attorney argued that when

the shooting occurred, Chatmon “was gone; he was out of it.” The prosecutor

objected to the argument, suggesting it was improper because it implied “voluntary

intoxication as a defense.” The trial court sustained the objection. Next, the trial

court advised the attorneys the court intended to give the jury a supplemental

7 instruction on the law of voluntary intoxication. Chatmon objected, arguing he never

suggested to the jury that voluntary intoxication was a defense. Chatmon also argued

it was “inappropriate to change the charge now.” The trial court overruled the

objections and gave the jury the supplemental instruction now at issue in Chatmon’s

appeal. The supplemental instruction states: “Voluntary intoxication does not

constitute a defense to the commission of a crime.”5 The trial court reduced the oral

instruction to writing and included it in the written charge the jury took with it to use

when deliberating on a verdict.

When the jury returned, it found Chatmon guilty of aggravated assault. In the

punishment hearing that followed, the jury found that Chatmon should serve a fifty-

five-year sentence. 6 The trial court pronounced a fifty-five-year sentence and

Chatmon appealed.

Issues One and Two

In Chatmon’s first two issues, he complains the trial court violated his rights

under the Confrontation Clause by admitting recordings that he claims contain

testimonial statements from Cartwright, Ware, and Mika since the State never called

5 See Tex. Penal Code Ann. § 8.04(a). 6 Generally, aggravated assault with a deadly weapon is a second-degree felony. See id. § 22.02(b). But based on the enhancement findings, the sentencing range that applies to Chatmon’s punishment is 25 to 99 years (or life). See id. § 12.42(d). 8 them to testify in his trial.7 He argues the State used the recorded statements in the

trial to prove he is the person who shot Mika. We address issues one and two

together, since both require us to decide whether the statements in the recordings,

when viewed objectively, are testimonial.8

When the defendant complains on appeal that the trial court erred by admitting

a testimonial statement, the standard of review requires the court reviewing the

appeal to defer to the determination the trial court made on matters of historical fact

and credibility as those matters affect the admissibility of the recording while

reviewing the trial court’s ultimate finding on whether the statement was testimonial

using a de novo standard of review.9

Chatmon’s appeal hinges on whether the statements in the three recordings

are or are not testimonial. Under the Sixth Amendment, a defendant tried in a

criminal case has the right “to be confronted with the witnesses against him.” 10 But

the Sixth Amendment does not prohibit the admission of statements made outside of

the trial court if they are not testimonial. 11 And the circumstances under which each

respective statement at issue was made controls whether that statement is or is not

7 See U.S. CONST. amend. VI. 8 See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). 9 Id. 10 U.S. CONST. amend. VI. 11 See Davis v. Washington, 547 U.S. 813, 821 (2006); Crawford v. Washington, 541 U.S. 36, 59 (2004); Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011). 9 testimonial. Generally, statements are not considered testimonial if the facts show

the police obtained them while assisting in an ongoing emergency and the questions

asked by the public officials are the types of questions that someone would ask to

bring an emergency situation to an end. 12

Thus, in Davis, the United States Supreme Court held the Confrontation

Clause did not apply to a 911 recording when the circumstances surrounding the

recording showed, from an objective point of view, that (1) the 911 caller spoke

about events as they actually occurred rather than describing past events, (2) the 911

caller faced an ongoing emergency when the statements were made, (3) the

questions asked in the 911 call were designed to resolve an ongoing emergency and

were not asked to allow the police to elicit the information police need to investigate

a crime, and (4) the level of formality, as shown by the objective evidence relevant

to the recording, is lower than the formality that exists when police interview

witnesses after the emergency ends.13

We apply the Davis factors to the recordings Chatmon complains about in his

appeal. All three recordings show the 911 operator and Officer Shoemaker asked

questions like those public officials typically ask to bring an ongoing emergency to

an end. For instance, when Ware and Cartwright called 911, the shooting had just

12 Davis, 547 U.S. at 822. 13 Id. at 827. 10 occurred. The purpose for the calls, as shown by the objective evidence in the

recordings, was to notify the police that an emergency had occurred and that

emergency assistance was needed at Chatmon’s home. When Officer Shoemaker

spoke to Mika, Mika is in obvious pain from the gunshot wound she had suffered to

her abdomen and in need of emergency care. When the conversation with Mika

begins, no one, including Mika, has yet identified Chatmon as the shooter. While

it’s true that Officer Shoemaker knew Chatmon had been detained by the officers

outside the home, no one had identified him as the shooter and Chatmon never told

the police he is the person who shot the person police found in the home. In other

words, the emergency was still ongoing when Officer Shoemaker entered the home

and talks to Mika and the shooter had not been identified, until Mika identified her

shooter as Chatmon. Consequently, the objective threat that the officers and Mika

were facing from Officer Shoemaker’s standpoint had not ended until after Mika

identified Chatmon as the person who shot her. 14

The objective information in the record reflects that the questions the 911

operator and Officer Shoemaker asked are the types of questions public officials

generally ask to bring an emergency to an end.15 For example, the 911 operator

wanted to know what happened, who was involved in the shooting, and where the

14 See Michigan v. Bryant, 562 U.S. 344, 349, 377-78 (2011) . 15 Davis, 547 U.S. at 822; see also Bryant, 562 U.S. at 364-65. 11 shooting occurred.16 The same is true of the questions that Officer Shoemaker asked

Mika. Simply put, the questions they asked are like those public officials use to bring

the emergency due to a reported shooting to an end. 17

To be sure, the police had Chatmon in custody when Officer Shoemaker

encountered Mika in the home. Yet Officer Shoemaker could not have known

whether Chatmon was the shooter before Mika told him that he was the person who

shot her. Accordingly, we conclude that all three recordings are not testimonial. It

follows the trial court did not violate Chatmon’s right to confront his accusers in his

trial by admitting the recordings into evidence.18 Chatmon’s first and second issues

are overruled.

The Supplemental Charge

In issue three, Chatmon argues the trial court erred when it supplemented the

charge with additional instructions after allowing final argument in the trial to begin.

We use a two-step process to analyze complaints alleging there is error in a court’s

charge.19 In step one, we determine whether the instruction that the defendant is

16 Bryant, 562 U.S. at 376. 17 See Bryant, 562 U.S. at 349, 376-377; Davis, 547 U.S. at 831. 18 See Bryant, 562 U.S. at 361. 19 See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). 12 complaining about in the appeal was erroneous.20 If not, the analysis ends.21 If

erroneous, however, we address whether the error caused harm. 22

Chatmon’s complaint about the trial court’s decision to supplement the charge

is based on article 36.16 of the Texas Code of Criminal Procedure. 23 That provision

generally prohibits trial courts from supplementing the charge once final argument

in a case begins.24 But exceptions exist to the rule, and they are set out in article

36.16.25 One exception allows trial courts to give the jury a “further charge” should

any party to the case present an “improper argument” in final argument. 26 That

exception applies here. The record shows Chatmon’s attorney invited the

supplemental instruction by making an argument that implies the jury should

consider the fact Chatmon was intoxicated when it was evaluating whether Chatmon,

when he shot Mika, acted intentionally, knowingly, or recklessly. 27 We conclude the

trial court did not err by finding the argument Chatmon’s attorney made in final

20 Id. 21 Id. 22 Id. 23 Tex. Code Crim. Proc. Ann. art. 36.16. 24 Id. 25 Id. 26 Id. 27 Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim. App. 1994) (holding the trial court may instruct the jury that involuntary intoxication is not a defense if the evidence before the jury would allow the jury to infer the “defendant’s intoxication somehow excused his actions[,]” regardless of whether the defendant made that argument in the trial). 13 argument was improper. It follows the trial court did not err by supplementing the

charge.28 Because Chatmon’s third issue lacks merit, it is overruled.

Clerical Error

The trial court’s judgment states that Chatmon was convicted of a first-degree

felony. That recitation, however, is incorrect. The jury found Chatmon guilty of

aggravated assault, which as alleged in Chatmon’s indictment, is a second-degree

felony—not a first.29 That said, the error is a clerical error. And we may correct

clerical errors to make judgments speak the truth.30 Our authority to correct clerical

errors also does not require anyone to request the trial court to correct the error before

we may correct it on appeal.31 Because the recitation stating that Chatmon was

convicted of a “1ST DEGREE FELONY” is incorrect, we modify the judgment to

make it recite that Chatmon was convicted of a second-degree felony. We do so by

deleting the recitation in the judgment stating that Chatmon committed a “1ST

DEGREE FELONY,” and we replace those words with “2ND DEGREE FELONY.”

28 See Tex. Penal Code Ann. § 8.04(a) (providing that “[v]oluntary intoxication does not constitute a defense to the commission of crime”). 29 See id. § 22.01(b) (subject to exceptions that do not apply under the circumstances of Chatmon’s case, making the aggravated assault of another with a deadly weapon punishable as a second-degree felony). 30 Tex. R. App. P. 43.2(b); see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). 31 Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d). 14 Conclusion

Having overruled Chatmon’s issues and reformed the judgment, we affirm the

judgment as reformed.

AFFIRMED AS REFORMED.

_________________________ HOLLIS HORTON Justice

Submitted on March 24, 2021 Opinion Delivered June 9, 2021 Do Not Publish

Before Golemon, C.J., Kreger and Horton, JJ.