ACCEPTED
06-14-00114-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
2/10/2015 11:42:58 AM
DEBBIE AUTREY
CLERK
ORAL ARGUMENT WAIVED
FILED IN
6th COURT OF APPEALS
CAUSE NO. 06-14-00114-CR TEXARKANA, TEXAS 2/10/2015 11:42:58 AM
DEBBIE AUTREY
IN THE Clerk
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________
RANDYEAL DONTRELL TYSON, Appellant lV.
THE STATE OF TEXAS, Appellee
____________________________________________________________
ON APPEAL FROM THE COUNTY COURT AT LAW LAMAR COUNTY, TEXAS
TRIAL COURT NO. 61504; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
Gary D. Young, County and District Attorney Lamar County and District Attorney’s Office Lamar County Courthouse
119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
ATTORNEYS FOR THE STATE OF TEXAS
IDENTITY OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and counsel is not required to supplement or correct the appellant’s list.
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TABLE OF CONTENTS
PAGE:
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . i TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . vii STATEMENT REGARDING ORAL ARGUMENT . . . . . viii ISSUE PRESENTED IN REPLY. . . . . . . . . . . . . . . . . . . . . ix INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . 10 ARGUMENT AND AUTHORITIES
ISSUE PRESENTED IN REPLY NO. 1: VIEWED IN THE LIGHT MOST FAVORABLE TO THE JURY’S VERDICT, THE EVIDENCE WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO HAVE FOUND THE ESSENTIAL ELEMENTS OF THEFT BEYOND A REASONABLE DOUBT. . . . . . . . . . 11
ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMINING THE LENGTH OF ARGUMENTS DURING THE APPELLANT’S TRIAL. . . . . . . . . 16
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PAGE:
ISSUE PRESENTED IN REPLY NO. 3: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMINING THE LENGTH OF ARGUMENTS DURING THE APPELLANT’S TRIAL IN ALLEGED CONTRAVENTION OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL. . . . . . . . . . . . . . . . . . . . . . . 21
ISSUE PRESENTED IN REPLY NO. 4: THIS COURT SHOULD ORDER THE SUPPLEMENTATION OF THE CLERK’S RECORD TO INCLUDE A CERTIFIED BILL OF COSTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF SERVICE ...................... 27
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INDEX OF AUTHORITIES
CASES: PAGE:
Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim.
App. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,16
Arevalo v. State, 835 S.W.2d 701, 707 (Tex. App.--Houston [14th Dist.] 1992, no pet.) . . . . . . . . . . . . . . . . . . . . . . 20
Baldwin v. New York, 399 U.S. 66, 68, 69; 90 S.Ct. 1886; 26 L. Ed. 2d 437 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . 19
Barnett v. State, 344 S.W.3d 6, 13 (Tex. App.--Texarkana 2011, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,16
Brooks v. State, 323 S.W.3d 893, 912, 917-918 (Tex.
Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cardenas v. State, 402 S.W.3d 377, 382, 383, 385, 397, 399 (Tex. App.-- Houston [1st Dist.] 2013) (opinion on rehearing), aff’d, 423 S.W.3d 396 (Tex. Crim. App. 2014) . . . . 22,23,24
Christopher Michael Lindgren v. The State of Texas, No.
01-12-00083-CR, 2013 Tex. App. LEXIS 2415, 2013 WL 978257, at * 3 (Tex. App.--Houston [1st Dist.]
March 12, 2013, no pet.) (mem. op., not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Dang v. State, 154 S.W.3d 616, 619, 621, 621 n. 22; 622, 623 (Tex.Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . 16,17,20,21
Dang v. State, 202 S.W.3d 278, 280, 281 (Tex. App. – Houston [14th Dust,} 2006, no pet.) . . . . . . . . . . . . . . 21,22
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CASES: PAGE:
District of Columbia v. Clawans, 300 U.S. 617, 628 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Hernandez v. State, 506 S.W.2d 884, 886 (Tex Crim.
App. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.--
Texarkana 2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 12
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Jackson v. Virginia, 443 U.S. 307, 318, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) . . . . . . . . . . . . . . . . . . . . . . . 12
Lewis v. State, 126 S.W.3d 572, 575 (Tex. App.--
Texarkana 2004, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 14,16
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Pitte v. State, 102 S.W.3d 786, 794 (Tex. App.--Texarkana 2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,16
Rickie Renarld Goodie v. The State of Texas, No. 01-12-00531, 2013 Tex. App. LEXIS 15284, at * 7 (Tex. App.--Houston [1st Dist.] December 19, 2013, pet. ref’d) (mem. op., not designated for publication) . . . . . . . . . . . . . . . . . 14
Robinson v. State, 415 S.W.2d 180, 182 (Tex. Crim.
App. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Vanderburg v. State, 365 S.W.3d 712, 714 (Tex. App.--
Texarkana 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . 12
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CASES: PAGE:
Wilson v. State, 391 S.W.3d 131, 135 (Tex. App.--
Texarkana 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . 12,13
Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.
App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
STATUTES: PAGE: TEX. PENAL CODE ANN. 12.22 (West Supp. 2014). . . . . 18 TEX. R. APP. P. 34.5(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 23,24 TEX. R. APP. P. 34.5(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 23,24 TEX. R. APP. P. 38.1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22 TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . i TEX. R. APP. P. 44.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24 TEX. R. EVID. 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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STATEMENT OF THE CASE
This is a criminal appeal from the trial court’s final judgment and sentence. See CR, pgs. 71-73.
After a jury trial, a Lamar County jury found the appellant, Tyson, guilty of the misdemeanor offense of theft of property of the value of $50.00 or more but less than $500.00. See Tex. Penal Code Ann. § 31.03 (West 2013). By its unanimous verdict, the same jury assessed punishment at imprisonment in the Lamar County Jail for a term of 100 days and assessed a fine in the amount of $432.00 along with restitution in the amount of $88.00. See RR, Vol. 4, pg. 51; CR, pg. 67.
On June 27, 2014, the trial court signed its final judgment of conviction. See CR, pgs. 71-73. Tyson timely filed his notice of appeal. See CR, pg. 74. By this appeal, Tyson raised four (4) issues/points of error.
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STATEMENT REGARDING ORAL ARGUMENT The State will waive oral argument. See Tex. R. App. P. 38.2.
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ISSUES PRESENTED IN REPLY
ISSUE PRESENTED IN REPLY NO. 1: VIEWED IN THE LIGHT MOST FAVORABLE TO THE JURY’S VERDICT, THE EVIDENCE WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO HAVE FOUND THE ESSENTIAL ELEMENTS OF THEFT BEYOND A REASONABLE DOUBT.
ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMING THE LENGTH OF ARGUMENTS DURING THE APPELLANT’S TRIAL.
ISSUE PRESENTED IN REPLY NO. 3: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMING THE LENGTH OF ARGUMENTS DURING THE APPELLANT’S TRIAL IN ALLEGED CONTRAVENTION OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL.
ISSUE PRESENTED IN REPLY NO. 4: THIS COURT SHOULD ORDER THE SUPPLEMENTATION OF THE CLERK’S RECORD TO INCLUDE A CERTIFIED BILL OF COSTS.
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CAUSE NO. 06-14-00114-CR
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________
RANDYEAL DONTRELL TYSON, Appellant lV.
THE STATE OF TEXAS, Appellee
____________________________________________________________
ON APPEAL FROM THE COUNTY COURT AT LAW LAMAR COUNTY, TEXAS
TRIAL COURT NO. 61504; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
TO THE HONORABLE SIXTH COURT OF APPEALS AT TEXARKANA:
COMES NOW, the State of Texas, by and through the elected County and District Attorney of Lamar County, Gary D. Young, and the Lamar County and District Attorney’s Office, respectfully submits its Appellee’s (State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, Randyeal Dontrell Tyson will be referred
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to as “the appellant” or “Tyson” and the State of Texas as “the State.”
STATEMENT OF FACTS
Factual Background.
On December 6, 2013, Dustin Calhoun (Calhoun), who worked for Wal-Mart for seven years, was on duty in asset protection (RR, Vol. 4, pg. 106-108, 114) and dressed in “just a plain brown jacket” or “just plain civilian clothes” (RR, Vol. 4, pg. 38), when there was an incident in the evening. See RR, Vol. 4, pgs. 35-36, 37 (“just one” incident). It was “not busy” that evening. See RR, Vol. 4, pg. 106. Calhoun was working alone. See RR, Vol. 4, pg. 106.
According to Calhoun, Tyson was in Wal-Mart earlier that day with another gentlemen. See RR, Vol. 4, pg. 37. Wal-Mart was in Lamar County. See RR, Vol. 4, pg. 138.
A few hours later, Calhoun saw Tyson again, as he was coming from a red Mustang. See RR, Vol. 4, pg. 112. Calhoun watched Tyson, who was with a female. See RR, Vol. 4, pgs. 37, 71. The time stamp on the surveillance video was 8:42 p.m. See RR, Vol. 4, pgs. 48, 103, 105; State’s Exhibit 2 (surveillance video).
Later, in the cosmetics department (RR, Vol. 4, pg. 69), the time was
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9:06 p.m. (RR, Vol. 4, pgs. 71, 104-105), when they started selecting merchandise at a high rate of speed. See RR, Vol. 4, pgs. 37, 69 (“speedily, hastily picking things off the shelf”), 75, 77. See also RR, Vol. 4, pg. 72 (“She’s grabbing a handful of stuff”). That gave notice to Calhoun that “they’re probably not going to pay for it.” See RR, Vol. 4, pg. 37. Calhoun could “see it all from the purses.” See RR, Vol. 4, pg. 73.
Calhoun began to follow them and watched them select cosmetics, perfume and deodorant “over by the shampoo and stuff.” See RR, Vol. 4, pgs. 37, 53. They went over to the purses (RR, Vol. 4, pgs. 37, 67), where there is no video in the purses. See RR, Vol. 4, pgs. 65-66. Tyson had a razor; it was in a sealed plastic container. See RR, Vol. 4, pg. 37. Tyson “ripped up the plastic, broke all the pieces off of it, left it down in the buggy, concealed it down in -- into his pocket with some other merchandise that was in the buggy that they selected with another female.” See RR, Vol. 4, pg. 38. See also RR, Vol. 4, pg. 56.
They then went out and around the jewelry department and went out the door, passing the registers. See RR, Vol. 4, pg. 38. They did not stop and pay for the items. See RR, Vol. 4, pg. 57.
Calhoun followed them, and they looked back as soon as they got to
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the last door. See RR, Vol. 4, pg. 38. See also RR, Vol. 4, pg. 89 (“They don’t run until they get outside that second door.”). They took off running to their car. See RR, Vol. 4, pgs. 38, 58. Calhoun called “PD.” See RR, Vol. 4, pgs. 38-39, 40, 90. Calhoun started following them out to the parking lot. See RR, Vol. 4, pg. 38, 48, 58; State’s Exhibit 2. They were going to a vehicle (RR, Vol. 4, pgs. 59, 90), but did not get into their vehicle. See RR, Vol. 4, pgs. 38, 41. “They just touched it.” See RR, Vol. 4, pg. 119. Then, they left. See RR, Vol. 4, pg. 119.
“It was a red Mustang.” See RR, Vol. 4, pg. 40. See also RR, Vol. 4, pgs. 50, 59, 113; State’s Exhibit 2. Calhoun could not remember the license plate (RR, Vol. 4, pg. 60), but he did get the tag number and give it to the police. See RR, Vol. 4, pg. 120.
They then took off running through the trailer parks. See RR, Vol. 4, pgs. 38, 40, 59, 113. Calhoun continued to follow them, as they ran to the trailer park giving the police the description of which way they were going. See RR, Vol. 4, pg. 41. Calhoun didn’t see them dump anything out. See RR, Vol. 4, pgs. 102-103.
Afterwards, Calhoun had “to go burn the video” (RR, Vol. 4, pgs. 41, 46-47) and get a “training” receipt for the officer. See RR, Vol. 4, pgs. 41,
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44; State’s Exhibit 1. The date on the “training” receipt was 12/6 of ‘13. See RR, Vol. 4, pg. 45.
The stolen items were the Old Spice deodorant, the toothbrush holders, the Maybelline eye, the perfume Curve Crush, the CoverBlend makeup, the Maybelline eye makup and the razor Fusion styler. See RR, Vol. 4, pgs. 45-46, 111. See also RR, Vol. 4, pgs. 66, 116-118. According to Calhoun, they selected way more than what’s on that receipt. See RR, Vol. 4, pg. 69. Calhoun didn’t put all the merchandise on there, no. See RR, Vol. 4, pg. 112. The total on the receipt before tax was $87.91. See RR, Vol. 4, pg. 111. According to Calhoun, “yes, makes it a Class B” misdemeanor. See RR, Vol. 4, pg. 119.
Arrival of Law Enforcement.
On the night of December 6th (RR, Vol. 4, pg. 126), officer Jeremy Duerksen (Officer Duerksen) answered a call at Wal-Mart that evening, “somewhere around 2100 hours.” See RR, Vol. 4, pg. 128. Officer Duerksen spoke with the complainant, the reporting party, who he believed was Dustin Calhoun. See RR, Vol. 4, pg. 128.
Upon being provided still photographs of the suspects on the scene, Officer Duerksen was able to determine who they were and later made
6
contact with them to verify their identity. See RR, Vol. 4, pgs. 129, 131. They were both at their residence in the city limits. See RR, Vol. 4, pg. 129.
From the still photographs and the video, Officer Duerksen also saw the subjects arriving on scene in the parking lot in a vehicle, and he was able to obtain the vehicle registration from that vehicle. See RR, Vol. 4, pg. 131. The registration address returned to the location in which the subjects were located. See RR, Vol. 4, pg. 131.
Officer Duerksen had been given a copy of the video from Wal-Mart, and he watched it prior to making contact with the suspects at the location of the residence. See RR, Vol. 4, pg. 146. Officer Duerksen observed them “conceal items” in the cosmetics area. See RR, Vol. 4, pg. 147.
Once the vehicle had left the scene, Officer Duerksen went by the house approximately two times before the vehicle arrived on scene. See RR, Vol. 4, pgs. 132, 135 (“I know it was a red or maroon Ford Mustang.”). See also State’s Exhibit 3. “[I]t was just a couple of hours, two or three hours before they were back at the house.” See RR, Vol. 4, pg. 132. The vehicle was parked at a house across the street. See RR, Vol. 4, pg. 141.
Officer Duerksen went to the house. See RR, Vol. 4, pg. 129. As he approached the front door, there was a large window at lease five foot wide.
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See RR, Vol. 4, pg. 141. The blinds were not completely closed. See RR, Vol. 4, pg. 141. Officer Duerksen looked through the window, as he was standing and knocking at the door. See RR, Vol. 4, pg. 141.
Officer Duerksen spoke to the father. See RR, Vol. 4, pg. 141. This man had a door wide open, using a hand gesture as -- to enter. See RR, Vol. 4, pgs. 142, 145. Officer Duerksen had the impression that the mother and father had been in bed. See RR, Vol. 4, pg. 142.
The female subject ran to the back of the house. See RR, Vol. 4, pgs.
129-130. The male subject was wearing the same clothing that Officer Duerksen observed in the still photographs that he initially saw. See RR, Vol. 4, pg. 130.
The father went back and found both of the subjects hiding in the back of the residence. See RR, Vol. 4, pg. 143. Officer Duerksen did not go further back into the house. See RR, Vol. 4, pg. 144.
Jury Trial.
On June 25, 2014, the trial court called the cause number 61504 for a jury trial and took up some pre-trial matters. See RR, Vol. 4, pg. 5. Following the pre-trial matters (RR, Vol. 4, pgs. 5-23), the trial court provided instructions to the petit jury. See RR, Vol. 4, pgs. 24-31.
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The State then read the charging instrument to the jury. See RR, Vol.
4, pgs. 31-32; CR, pg. 8. Tyson entered a plea of “not guilty.” See RR, Vol. 4, pg. 32.
The State called Calhoun, as its first witness. See RR, Vol. 4, pg. 35.
During his direct-examination, Calhoun identified Tyson in “the black shirt right there with the glasses on.” See RR, Vol. 4, pg. 57.
At the conclusion of Calhoun’s testimony (RR, Vol. 4, pg. 120), the State called Officer Duerksen as its next witness. See RR, Vol. 4, pg. 126. Officer Duerksen was also able identify Tyson in a “black t-shirt with white writing on it.” See RR, Vol. 4, pg. 131. Following the testimony of Officer Duerksen, the State rested. See RR, Vol. 4, pg. 149.
Afterwards, Tyson moved for a directed verdict, and the trial court denied the motion. See RR, Vol. 4, pg. 150. The defense presented its case- in-chief, which included the testimony of Kimber Renee Tyson, the wife. See RR, Vol. 4, pg. 153. Following her testimony (RR, Vol. 4, pgs. 152- 190), both sides rested and closed. See RR, Vol. 4, pg. 190.
After preparing a proposed charge, the trial court heard “no objections” from the State or the defense. See RR, Vol. 4, pg. 191. The trial court then read the charge of the court to the jury. See RR, Vol. 4, pgs. 192-
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201; CR, pgs. 59-63.
Following closing arguments, the jury retired for its deliberations. See RR, Vol. 4, pg. 214. While the trial court awaited the jury’s verdict, defense counsel for Tyson objected “to being cut off in closing argument.” See RR, Vol. 4, pg. 216. In due course, the jury returned a verdict; and by its verdict, the jury found Tyson guilty of the offense of theft of property of $50.00 or more but less than $500, as charged in the information. See RR, Vol. 4, pg. 220; CR, pg. 63.
At the conclusion of the punishment phase, which was brief in duration (RR, Vol. 4, pgs. 220-230), both sides rested and closed. See RR, Vol. 4, pg. 230. The trial court then read its punishment charge to the jury. See RR, Vol. 4, pgs. 231-237; CR, pgs. 64-66.
Following closing arguments, the jury returned a verdict. See RR, Vol. 4, pg. 251; CR, pg. 67. By its verdict, the jury assessed punishment at imprisonment in the Lamar County Jail for a term of 100 days and assessed a fine in the amount of $432.00 along with restitution in the amount of $88.00. See RR, Vol. 4, pg. 51; CR, pg. 67. The jury’s verdict was unanimous. See RR, Vol. 4, pg. 251.
On June 27, 2014, the trial court signed its final judgment of
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conviction. See CR, pgs. 71-73. Tyson timely filed his notice of appeal. See CR, pg. 74.
Proceedings in this Court.
On or about June 27th, Tyson filed his notice of appeal in this Court.
The County Clerk of Lamar County filed the Clerk’s Record on or about August 18, 2014. The official court reporter filed the Reporter’s Record on or about September 22, 2014 along with the exhibits on or about September 26, 2014.
The appellant, Tyson, filed two (2) separate motions for extension of time to file his brief, which this Court granted on both occasions. On or about December 19th, Tyson filed his brief.
In turn, the State filed a motion for extension of time to file its brief, which this Court granted on January 21, 2015. The State will be filing its brief on February 10, 2015 to comply with this Court’s ruling on January 21st.
SUMMARY OF THE ARGUMENT
By this appeal, Tyson brings four (4) issues/points of error. This Court should overrule each of these issues/points of error and should affirm the trial court’s final judgment of conviction in all respects for the following
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reasons:
First, the evidence was legally-sufficient for a rational jury to find the elements of the offense of theft beyond a reasonable doubt. Second, the trial court did not abuse its broad discretion in limiting the closing arguments during the guilt-innocence phase to fifteen (15) minutes. Third, no Texas Court has held that the limitation of closing arguments to fifteen (15) minutes violates the Sixth Amendment.
Finally, this Court should order the trial court clerk (i.e. the County Clerk of Lamar County, Texas) to supplement this appellate record with a certified bill of costs. Once this Court has ordered and received this supplemental bill of costs, the evidence will be legally-sufficient to support the trial court’s final judgment of conviction, which required the appellant (Tyson) to pay court costs.
ARGUMENT AND AUTHORITIES
ISSUE PRESENTED IN REPLY NO. 1: VIEWED IN THE LIGHT MOST FAVORABLE TO THE JURY’S VERDICT, THE EVIDENCE WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO HAVE FOUND THE ESSENTIAL ELEMENTS OF THEFT BEYOND A REASONABLE DOUBT.
A. Standard of Review: Legal-Sufficiency of the Evidence.
In evaluating legal sufficiency, this Court reviews all the evidence in
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the light most favorable to the jury’s verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. See, e.g., Vanderburg v. State, 365 S.W.3d 712, 714 (Tex. App.--Texarkana 2012, no pet.) (Justice Carter) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) and Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.--Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). A rigorous legal sufficiency review focuses on the quality of the evidence presented. See Wilson v. State, 391 S.W.3d 131, 135 (Tex. App.--Texarkana 2012, no pet.) (citing Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring)). This Court examines legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” See Wilson, 391 S.W.3d at 135 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19)).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. See Wilson, 391
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S.W.3d at 135 (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” See Wilson, 391 S.W.3d at 135.
B. The State Adduced Legally-Sufficient Evidence to Support the Jury’s Finding.
With his first issue, the appellant contended that “[t]he only evidence presented at trial that Tyson actually stole items from Walmart was the testimony of Dustin Calhoun, Walmart’s loss prevention officer.” See Appellant’s Brief, pg. 10. Tyson further contended that none of the allegedly ripped up packages were photographed or brought to court and introduced into evidence. See Appellant’s Brief, pg. 11. According to Tyson, the videotape did not show Tyson or his wife ripping up packages or placing anything in their pockets, and the police officers who went into Tyson’s home did not see any of the allegedly stolen items there. See Appellant’s Brief, pg. 11. No stolen items were ever found in Tyson’s possession, and his wife’s testimony gives a reasonable innocent explanation for their act of running from the store. See Appellant’s Brief, pg. 11.
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However, Tyson’s contentions on appeal would essentially require this Court to reweigh the credibility of the witnesses and the testimony presented at trial.1 However, the jury was the exclusive judge of credibility of witnesses, the weight to be given their testimony, and reconciliation of conflicts in the evidence. See, e.g., Barnett v. State, 344 S.W.3d 6, 13 (Tex. App.--Texarkana 2011, pet. ref’d) (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)).
Further, a conviction may be based on the testimony of a single eyewitness. See Lewis v. State, 126 S.W.3d 572, 575 (Tex. App.--Texarkana 2004, pet. ref’d) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Pitte v. State, 102 S.W.3d 786, 794 (Tex. App.--Texarkana 2003, no pet.)). Because a conviction for theft may be based on the testimony of a single eyewitness, this Court should reject Tyson’s legal- sufficiency argument that “[t]he only evidence presented at trial that Tyson
1 See Rickie Renarld Goodie v. The State of Texas, No. 01-12-00531, 2013 Tex. App. LEXIS 15284, at * 7 (Tex. App.--Houston [1st Dist.] December 19, 2013, pet. ref’d) (mem. op., not designated for publication) (citing Christopher Michael Lindgren v. The State of Texas, No. 01-12-00083-CR, 2013 Tex. App. LEXIS 2415, 2013 WL 978257, at * 3 (Tex. App.--Houston [1st Dist.] March 12, 2013, no pet.) (mem. op., not designated for publication) (upholding theft conviction in the absence of video evidence when loss prevention officer of HEB store provided eyewitness testimony)). In Goodie, an unpublished opinion, the court of appeals concluded that testimony from a Pearland Home Depot loss prevention officer, which was corroborated by portions of the surveillance video, provided sufficient evidence for the jury to rationally conclude beyond a reasonable doubt that the appellant took a drill without Home Depot’s effective consent and left the store with the intention of depriving Home Depot of the drill. See id.
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actually stole items from Walmart was the testimony of Dustin Calhoun, Walmart’s loss prevention officer.” See Appellant’s Brief, pg. 10.
In the present case, Calhoun provided testimony that would qualify him as an eyewitness during cross-examination, as follows:
Q. Now, your testimony is from your vantage point wherever you are you’re able to see into the buggy, correct?
A. Yes.
Q. Okay. Were there other things in the buggy before she put those in there?
A. No.
Q. So, are you watching all this?
A. Yes.
Q. Wherever you are, you see all this?
A. I can see it all from the purses.
Q. So, just to be clear, you’re at a place where you can dad-gum sure see them. That’s your testimony, right?
A. Yes.
See RR, Vol. 4, pgs. 72-73.
As an eyewitness, Calhoun testified that he saw Tyson and another female selecting merchandise at a high rate of speed. See RR, Vol. 4, pgs. 37, 69, 75, 77. Based on his experience as a loss prevention officer, Calhoun
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was on notice, and he testified in his lay opinion, that “they’re probably not going to pay for it.” See RR, Vol. 4, pg. 37. See also Tex. R. Evid. 701. As an eyewitness, Calhoun was also looking through a peg board, through a hole; and “[i]t shows that whole aisle.” See RR, Vol. 4, pg. 84.
Having heard Calhoun’s testimony, the jury was the exclusive judge of the credibility of the witness and the weight to be given his testimony. See Barnett, 344 S.W.3d at 13. Viewing all the evidence in the light most favorable to the jury’s verdict, Tyson’s first issue/point of error on appeal should be overruled because a conviction may be based on the testimony of a single eyewitness, like Calhoun. See Lewis, 126 S.W.3d at 575 (citing Aguilar v. State, 468 S.W.2d at 77); Pitte, 102 S.W.3d at 794.
ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMINING THE LENGTH OF ARGUMENTS DURING THE APPELLANT’S TRIAL.
A. Standard of Review: Abuse of Discretion.
The Texas Court of Criminal Appeals has held that “trial courts have broad discretion in determining the length of arguments during a trial.” See Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005) (citing Hernandez v. State, 506 S.W.2d 884, 886 (Tex Crim. App. 1974); Robinson v. State, 415 S.W.2d 180, 182 (Tex. Crim. App. 1967)). Of course, trial
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courts have broad discretion in managing the course of a trial generally. See Dang, 154 S.W.3d at 619 (citing Tex. R. Evid. 611). However, this discretion is not limitless. See Dang, 154 S.W.3d at 619.
As explained in Dang, the Code of Criminal Procedure does not provide much guidance to the trial courts regarding how long arguments can be. See id. The statutory right to argue at the close of the evidence is derived by inference from Article 36.07 and 36.08. See id.
In Dang, the Texas Court of Criminal Appeals concluded that reviewing courts should consider, but are not limited to considering the following non-exclusive list of factors on a case-by-case basis: (1) the quantity of the evidence, (2) the duration of the trial, (3) conflicts in the testimony, (4) the seriousness of the offense, (5) the complexity of the case, (6) whether counsel used the time allotted efficiently, and (7) whether counsel set out what issues were not discussed because of the time limitation. See id. at 621.
B. Application of Law to the Present Case.
(1-3) The Quantity of the Evidence, the Duration of the Trial, and Conflicts in the Testimony.
In Dang, the Court of Criminal Appeals considered the first three factors together. See id. In the present case, the record indicated that three
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(3) witnesses testified over a one-day jury trial. The State presented two (2) witnesses--Calhoun and Officer Duerksen--and the State proffered three exhibits, which were the “training” receipt, the surveillance video from Wal- Mart and the in-car video from Officer Duerksen. See State’s Exhibits 1, 2 and 3. The defense presented one witness, Kimber Renee Tyson. See RR, Vol. 4, pg. 153. In his brief, Tyson contended that the testimony of Kimber Renee Tyson “wholly contradicted the testimony of the State’s key witness.” See Appellant’s Brief, pg. 14. But, that testimony was from an interested witness, the wife of the appellant, and the jury could have completely rejected her testimony and found the testimony to be non-conflicting.
(4-5) Seriousness of the Offense and Complexity of the Case.
Although Tyson admitted in his brief that “the offense in this case is relatively minor,” he contended that he still faced and received jail time. See Appellant’s Brief, pg. 14. However, the State charged the appellant with the Class B misdemeanor offense of theft. See CR, pg. 8. An individual adjudged guilty of a Class B misdemeanor shall be punished by: (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement. See Tex. Penal Code Ann. § 12.22 (West Supp. 2014).
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In deciding whether an offense is “petty,” the United States Supreme Court has sought objective criteria reflecting the seriousness with which society regards the offense, District of Columbia v. Clawans, 300 U.S. 617, 628 (1937) and have found the most relevant such criteria in the severity of the maximum authorized penalty. See Baldwin v. New York, 399 U.S. 66, 68; 90 S.Ct. 1886; 26 L. Ed. 2d 437 (1970). Applying these guidelines, the United States Supreme Court has held that a possible six-month penalty is short enough to permit classification of the offense as “petty.” See id. at 68- 69.
Similarly here, a possible six-month (or 180 days) penalty for a Class B misdemeanor is short enough to permit classification of this offense as “petty.” See id. Therefore, Tyson’s misdemeanor offense of theft should not be considered “serious,” regardless of the fact that he faced and received jail time of 100 days.
As for the complexity of the issues, this case was a relatively simple case involving the alleged theft of $87.91 in miscellaneous cosmetics from a Wal-Mart in Lamar County, Texas. The trial court’s charge to the jury included a single application paragraph (CR, pg. 60) with definitions of “appropriate,” “deprive,” “owner” and “property.” See CR, pgs. 59-60.
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(6) Whether Counsel Used the Time Allotted Efficiently.
As in Dang, 154 S.W.3d at 622, the record indicated here that counsel used his time effectively during closing argument and did not engage in improper argument. Mr. Haslam covered relevant and contested issues from the trial and did not waste time with needless repetition.
(7) Whether Counsel Set Out What Issues Were Not Discussed Because of the Time Limitation.
Unlike the case in Dang, Tyson did not file a motion for new trial.
See id. at 622. Although counsel for Tyson offered the “racial implications of this matter” as a topic that he would have covered, the trial court made clear that counsel “never asked for additional time in front of the jury.” See RR, Vol. 4, pg. 216. See also RR, Vol. 4, pg. 218. The trial court also gave an “extra minute and a half.” See RR, Vol. 4, pg. 217.
In applying the factors above, the trial court did not abuse its discretion in limiting the closing arguments to fifteen (15) minutes. See RR, Vol. 4, pgs. 192 (“I’ll give both sides 15.”), 201. See Dang, 154 S.W.3d at 621, n. 22 (citing, among others, Arevalo v. State, 835 S.W.2d 701, 707 (Tex. App.--Houston [14th Dist.] 1992, no pet.) (15 minute time limit for closing argument in a narcotics case not an abuse of discretion)). This was a relatively-simple and “petty” misdemeanor theft case, not a serious felony
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offense; and the issues were not complex over a one-day jury trial. Put simply, the factors in Dang predominate against a conclusion that the trial court abused its discretion. Therefore, the appellant’s, Tyson’s, second issue/point of error should be overruled.
ISSUE PRESENTED IN REPLY NO. 3: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMINING THE LENGTH OF ARGUMENTS DURING THE APPELLANT’S TRIAL IN ALLEGED CONTRAVENTION OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL.
With his third issue, Tyson alleged that he was denied the exercise of his full rights under the Sixth Amendment by the trial court’s unreasonable restrictions on closing argument. See Appellant’s Brief, pg. 18 (citing Dang, 154 S.W.3d at 623 (Meyers, J., concurring). Other than the citation to the concurring opinion, Tyson failed to cite any other authority. See Tex. R. App. P. 38.1(i).
On remand, the court of appeals concluded in Dang that the appellant did not assert, and the Court of Criminal Appeals did not find, such a violation of the Sixth Amendment. See Dang, 202 S.W.3d 278, 280 (Tex. App.--Houston [14th Dist.] 2006, no pet.) (majority opinion on remand following rehearing). In Dang, the court of appeals further articulated that “[t]he high court’s discussion of Walker in Dang is consistent with the rest of
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the Dang opinion, which shows that the Court of Criminal Appeals did not find any constitutional violation. See Dang, 202 S.W.3d at 281. As should be the case here, this Court should not find any constitutional violation. See id. Therefore, the appellant’s, Tyson’s, second issue/point of error should be overruled.
ISSUE PRESENTED IN REPLY NO. 4: THIS COURT SHOULD ORDER THE SUPPLEMENTATION OF THE CLERK’S RECORD TO INCLUDE A CERTIFIED BILL OF COSTS.
A. Introduction.
With his final issue, Tyson contended that the record did not contain a certified bill of costs; therefore, the appellant cannot be made to pay costs of court. See Appellant’s Brief, pg. 20. Again, however, Tyson failed to cite any other authority to support his appellate contention. See Tex. R. App. P. 38.1(i).
B. Assuming Error Preservation, this Court Should Order the Supplementation of the Clerk’s Record.
Chapter 103 of the Texas Code of Criminal Procedure governs the collection of costs and recordkeeping in criminal cases. See Cardenas v. State, 402 S.W.3d 377, 382 (Tex. App.--Houston [1st Dist.] 2013) (opinion on rehearing), aff’d, 423 S.W.3d 396 (Tex. Crim. App. 2014). In Cardenas, the court of appeals held that the district clerk is required to “keep a fee
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record,” which must contain “a statement of each fee or item of cost charged for a service rendered in a criminal action or proceeding.” See Cardenas, 403 S.W.3d at 382-83. In Cardenas, the court of appeal further held that article 103.006 provided that “[i]f a criminal action . . . is appealed, an officer of the court shall certify and sign a bill of costs stating the costs that have accrued and send the bill of costs to the court to which the action or proceeding is transferred or appealed.” See Cardenas, 403 S.W.3d at 383. In Cardenas, no document constituting a bill of costs had been created, certified, signed, and sent to the court of appeals by the time the appellant filed his brief, in which he objected to the sufficiency of the evidence supporting an award of costs. See id.
In Cardenas, the court of appeals reasoned that the rules of appellate procedure provide that “[a] court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.” See id (citing Tex. R. App. 44.3). Further, the court of appeals reasoned that, as a court, it was specifically authorized to direct the trial court clerk to supplement the record with any relevant omitted item. See id (citing Tex. R. App. P. 34.5(c)(1), (3)).
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In Cardenas, the court of appeals ordered the trial court clerk “to prepare, certify, and file a supplemental record containing a bill of costs,” and in the event no bill of costs then existed, the court of appeals ordered “the trial court clerk or an officer of the court . . . to prepare a bill of costs for inclusion in the supplemental record.” See id. In Cardenas, the appellant filed a written objection to the order from the court of appeals. See id.
The court of appeals overrule Cardenas's objections to the supplementation of the record. See id. at 385. The Texas Court of Criminal Appeals affirmed. See Cardenas, 423 S.W.3d at 397, 399.
Here, the Cardenas rationale should apply equally to the present case.
See Cardenas, 403 S.W.3d at 383. In the present case, this Court must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.” See id; Tex. R. App. 44.3. Further, this Court is specifically authorized to direct the trial court clerk to supplement the record with any relevant omitted item. See id; Tex. R. App. P. 34.5(c)(1), (3).
As in Cardenas, this Court should order the trial court clerk (i.e. the
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County Clerk of Lamar County, Texas) “to prepare, certify, and file a supplemental record containing a bill of costs,” and in the event no bill of costs then existed, the court of appeals ordered “the trial court clerk or an officer of the court . . . to prepare a bill of costs for inclusion in the supplemental record.” See id. The State prays for such relief before this Court affirms or reverses the trial court’s judgment in cause number 61504. See id. Once this Court orders and receives a supplemental record, that contains a certified bill of costs, Tyson’s final issue/point of error should be overruled because the appellate record will provide sufficient evidence to support the appellant’s requirement to pay lawfully-imposed court costs.
PRAYER
WHEREFORE PREMISES CONSIDERED, the State of Texas prays that upon final submission without oral argument, this Court order the trial court clerk to supplement the appellate record to include a certified bill of costs; and then affirm the trial court’s final judgment of conviction, adjudge court costs against the appellant, and for such other and further relief, both at law and in equity, to which it may be justly and legally entitled.
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Respectfully submitted,
Gary D. Young
Lamar County & District Attorney Lamar County Courthouse
119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
By:________________________________ Gary D. Young, County Attorney SBN# 00785298
ATTORNEYS FOR STATE OF TEXAS CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the “Appellee’s (State’s) Brief” was a computer-generated document and contained 6613 words--not including the Appendix, if any. The undersigned attorney certified that he relied on the word count of the computer program, which was used to prepare this document.
______________________________
GARY D. YOUNG
gyoung@co.lamar.tx.us
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CERTIFICATE OF SERVICE
This is to certify that in accordance with Tex. R. App. P. 9.5, a true copy of the “Appellee’s (State’s) Brief” has been served on the 10th day of February, 2015 upon the following:
Don Biard
McLaughlin Hutchison & Biard LLP 38 First Northwest
Paris, TX 75460
______________________________
GARY D. YOUNG