Jacob Busbee v. State
Opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00584-CR
Jacob Busbee, Appellant
v.
The State of Texas, Appellee
FROM THE 403RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-19-904034, THE HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Jacob Busbee of the offense of stalking, which was charged as a second-degree felony because Busbee had a prior conviction for stalking. See Tex. Penal Code § 42.072(a), (b). The jury assessed punishment at thirteen years’ imprisonment, and the district court rendered judgment on the verdict. In a single issue on appeal, Busbee asserts that the district court erred in concluding that his prior conviction was admissible during guilt / innocence as an element of the offense. Because we conclude that any error in admitting the evidence was harmless in this case, we will affirm the district court’s judgment.
BACKGROUND
The State alleged and presented evidence at trial that on multiple occasions between December 3, 2017, and March 1, 2018, Busbee sent the victim, his ex-girlfriend,
unsolicited and harassing text messages, including threats of violence against himself and others if she did not agree to speak to him. We discuss this evidence in more detail below.
The State further alleged that Busbee had a prior conviction for stalking in 2016, which, if proven, would make the offense a second-degree felony (without a prior conviction, stalking is a third-degree felony). At the beginning of trial, the State requested permission from the district court to present evidence of Busbee’s prior conviction during the guilt / innocence phase of trial to prove the enhancement allegation. Busbee objected, arguing that the evidence was admissible only during punishment. Initially, the district court agreed with Busbee and excluded the evidence. However, the district court reconsidered its ruling later during trial and allowed the State to present the evidence, which was admitted in the form of a pen packet containing documents related to Busbee’s prior conviction.
After hearing the evidence, the jury found Busbee guilty of stalking as charged.
This appeal followed.
DISCUSSION
In his sole issue on appeal, Busbee asserts that his prior conviction for stalking was admissible only during punishment as evidence to prove the enhancement allegation. The State argues in response that the prior conviction was admissible during guilt / innocence as an element of the charged offense.1 To resolve this issue, we would need to construe the prior-
1 The State also argues that Busbee forfeited this issue when he stated that he had “no objection” to the admission of the evidence. We disagree. The record reflects that Busbee objected at the time the district court announced that it had reconsidered its ruling on the admissibility of the evidence, and he obtained a running objection at that time. Although Busbee later stated that he had “no objection” when the State offered the evidence, he also reminded the district court of his earlier objection and clarified that he was “not waiving our previous objection.” The district court responded, “Okay. We are on the record; so it is noted.” We conclude that this record “plainly demonstrates that neither the appellant nor the trial court
conviction provision in the stalking statute, see id. § 42.072(b) (providing that stalking “is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted of an offense under this section”), in light of two seemingly conflicting opinions by the Court of Criminal Appeals that have construed prior-conviction provisions in other statutes, see Oliva v. State, 548 S.W.3d 518, 520–22 (Tex. Crim. App. 2018) (holding that prior conviction for DWI was admissible only during punishment); Calton v. State, 176 S.W.3d 231, 233 (Tex. Crim. App. 2005) (holding that prior conviction for evading arrest was admissible during guilt / innocence); see also Oliva, 548 S.W.3d at 535–36 (Richardson, J., concurring) (observing that court’s holding in Oliva “conflicts with” and “runs afoul of” court’s holding in Calton).
However, we need not resolve this issue today, because even if Busbee’s prior conviction should not have been admitted during guilt / innocence, we cannot conclude on this record that Busbee was harmed by its admission. “The erroneous admission of evidence is non- constitutional error.” Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018) (citing Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008)). “Non-constitutional errors are harmful, and thus require reversal, only if they affect Appellant’s substantial rights.” Id. (citing Tex. R. App. P. 44.2(b)). Under this standard, “an error is reversible only when it has a substantial and injurious effect or influence in determining the jury’s verdict.” Id. “If we have a fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect, we will not overturn the conviction.” Id. “In making this determination, we consider: (1) the character of the alleged error and how it might be considered
regarded [his] ‘no objection’ statement as an abandonment” of his earlier objection. See Thomas v. State, 408 S.W.3d 877, 886 (Tex. Crim. App. 2013). Thus, Busbee has not forfeited the issue.
in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained of error.” Id.
First, we observe that the State did not emphasize Busbee’s prior conviction.
Because of the district court’s initial ruling excluding the evidence, the State did not recite the portion of the indictment alleging Busbee’s prior stalking conviction when Busbee was arraigned before the jury at the beginning of trial, nor did the State mention the prior conviction during its opening statement. Evidence of Busbee’s prior conviction was not admitted until near the conclusion of the State’s case-in-chief, in the form of a pen packet containing the judgment of conviction, Busbee’s fingerprints, and his booking photos. The documents contained no details regarding the circumstances of the offense, other than the dates on which the offense occurred, which were referenced in the judgment. The pen packet was admitted during the testimony of the State’s final witness, an investigator with the Travis County District Attorney’s Office, who testified to the contents of the pen packet and confirmed that Busbee was the person identified in the documents. However, the State elicited no testimony from the investigator as to the circumstances surrounding the prior conviction. Also, the State mentioned the prior conviction only once during its closing argument, near the end, and did not discuss the conviction in detail:
And, additionally, we provided you proof that he has a prior stalking conviction when you heard from Investigator David Austin who stated that his fingerprints that he rolled yesterday matched the same fingerprints from the booking photo of his stalking conviction. And you can look through those documents yourself, and you will see that he has a prior conviction for stalking.
Rather than focus on Busbee’s prior conviction, the State emphasized the evidence pertaining to the current offense, including over 100 text messages that Busbee sent to
the victim between December 3, 2017, and March 1, 2018, the dates alleged in the indictment. Photographic images of the messages, as seen on the victim’s phone, were admitted into evidence without objection, and many of the messages were read into the record during the victim’s testimony. The messages included the following:
December 3, 2017, beginning at 3:30 a.m. and continuing through 4:10 p.m.:
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