Richard Darby v. State

Opinion

ACCEPTED 06-15-00042-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/4/2015 2:29:00 PM DEBBIE AUTREY CLERK

No. 06-15-0042-CR 06-15-0043-CR 06-15-0044-CR FILED IN 06-15-0045-CR 6th COURT OF APPEALS 06-15-0046-CR TEXARKANA, TEXAS 6/4/2015 2:29:00 PM DEBBIE AUTREY IN THE SIXTH COURT OF APPEALS Clerk

at TEXARKANA

________________________________________________

RICHARD DARBY, III, Appellant

vs.

STATE OF TEXAS, Appellee ________________________________________________

Appeal from the 102nd District Court of Bowie County, Texas

APPELLANT’S BRIEF _________________________________________________

Troy Hornsby

Miller, James, Miller & Hornsby, L.L.P. 1725 Galleria Oaks Drive Texarkana, Texas 75503 troy.hornsby@gmail.com 903.794.2711, f. 903.792.1276

Attorney for Appellant Richard Darby, III

Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a

complete list of all parties to the trial court’s judgment and the names and

addresses of all trial and appellate counsel:

Appellant Appellant’s appellate counsel

Richard Darby, III Troy Hornsby Miller, James, Miller, & Hornsby, LLP 1725 Galleria Oaks Drive Texarkana, Texas 75503

Appellant’s trial counsel

Will Williams Bowie Co. Public Defender's Office 424 W. Broad Street Texarkana, Texas 75501

Appellee Appellee's appellate/trial counsel

State of Texas Kelley Gossett Crisp Bowie County Dist. Attorney's Office 601 Main Street Texarkana, Texas 75501

2 TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Issue 1: Did the State prove beyond a reasonable doubt that Darby committed two unadjudicated sexual assaults?. . . . . . . . . . . . 20

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Issue 2: Was the probative value of two unadjudicated sexual assaults by Darby substantially outweighed by the danger of unfair prejudice?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

(1) Probative Force . . . . . . . . . . . . . . . . . . . . . . . . . 30

(2) State’s Need for Evidence . . . . . . . . . . . . . . . . 31

3 (3) Tendency to Suggest Decision on Improper Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

(4) Tendency to Confuse or Distract . . . . . . . . . . . . 32

(5) Tendency to Be Given Undue Weight . . . . . . . . 33

(6) Consume Time . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Issue 3: Was evidence of an alleged discussion of escape by Darby properly admitted as impeachment evidence? . . . . . . . . . . . . 35

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Issue 4: Was a proper foundation laid for the admission of a conversation between Darby and his father at the jail regarding escape? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Issue 5: Darby was convicted of a third degree felony of evading arrest (with a vehicle). Should this have been a state jail felony pursuant to the contradictory Texas Penal Code section 38.04? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

4 Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Issue 6: Darby’s judgment for aggravated robbery (of a senior) incorrectly reflected a plea of not guilty . . . . . . . . . . . . . . . .55

Issue 7: Darby’s judgment for aggravated robbery (with a deadly weapon) incorrectly reflected a plea of not guilty . . . . . . . . .55

Issue 8: Darby’s judgment for aggravated robbery (with a deadly weapon) incorrectly reflected a plea of not guilty . . . . . . . . .55

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

5 INDEX OF AUTHORITIES

CASES: PAGE

Adetomiwa v. State, 421 S.W.3d 922 (Tex. App.)Fort Worth 2014, no pet.) . . . . . . . . . . . 51,52

Aldrick v. State, 104 S.W.3d 890 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Angleton v. State, 971 S.W.2d 65 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Caballero v. State, 919 S.W.2d 919 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd) . . . . 29

Champion v. State, 281 S.W. 546 (Tex. Crim. App. 1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Davis v. State, 315 S.W.3d 908 (Tex. App.—Houston [14th Dist.] 2010), rev'd on other grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011) . . . . . . . 25

Ex parte Beck, 922 S.W.2d 181 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Ex parte Pena, 71 S.W.3d 336 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Ex parte Williams, AP-76,455 (Tex. Crim. App. June 13, 2012)(mem. op.) . . . . . . . . . . . . . . 38

Fletcher v. State, 852 S.W.2d 271 (Tex. App.—Dallas 1993, pet. ref'd) . . . . . . . . . . . . . . . . 29

Flores v. State, 125 S.W.3d 744 (Tex. App.—Houston [1st Dist.] 2003, no pet.) . . . . . . . . 29

Garcia v. State, 149 S.W.3d 135 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 47

6 Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Gipson v. State, 619 S.W.2d 169 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . . . . . . . . . . 38,39

Gray v. State, 628 S.W.2d 228 (Tex. App.—Corpus Christi 1982, pet. ref’d) . . . 55,56,57

Green v. State, 840 S.W.2d 394 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Hall v. State, 13 S.W.3d 115 (Tex. App.)Fort. Worth 2000), pet. dism'd, improvidently granted, 46 S.W.3d 264 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Hayden v. State, 296 S.W.3d 549 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Hernandez-Munoz v. State, No. 14-11-00730-CR (Tex. App.)Houston [14th Dist.] Dec. 28, 2012, no pet.) . . . . . . . . . . . . . 38

Ivey v. State, 250 S.W.3d 121 (Tex. App.—Austin 2007), aff'd, 277 S.W.3d 43 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . 25

Ivory v. State, 632 S.W.2d 614 (Tex. Crim. App. [Panel Op.] 1982) . . . . . . . . . . . . . . . . 49

Jackson v. State, 575 S.W.2d 567 (Tex. Crim. App.1979) . . . . . . . . . . . . . . . . . . . 21,28,36,42

Jaubert v. State, 74 S.W.3d 1 (Tex. Crim. App.), cert. denied, 537 U.S. 1005 (2002) . . . . 38

Johnson v. State, 698 S.W.2d 154 (Tex. Crim. App. 1985), cert. denied, 107 S.Ct. 239 (1986) . . . . . . . . . . . . . . . . . . . . . . . 21,28,36,42

7 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . 25,34,39,46,53

Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . 25,34,39,40,46,53

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . 25,34,39,45,53

Luna v. State, 288 S.W. 465 (Tex. Crim. App. 1926) . . . . . . . . . . . . . . . . . . . . . . . 55,56,57

Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 47

McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App. 1992), overruled in part on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . 20,27,35,41,47

Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . 48,49

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,27,35,41,47

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

8 Reese v. State, 33 S.W.3d 238 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Rodriguez v. State, 71 S.W.3d 800 (Tex. App.—Texarkana 2002, no pet.) . . . . . . . . . . . . . . . 48

Rogers v. State, 991 S.W.2d 263 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Ruiz v. State, 579 S.W.2d 206 (Tex. Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Rushing v. State, 50 S.W.3d 715 (Tex. App.—Waco 2001), aff'd, 85 S.W.3d 283 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . 48

Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . 21,28,36,42

Schutz v. State, 63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . 25,34,39,40,46,53

Smith v. State, 899 S.W.2d 31 (Tex. App.)Austin 1995, pet. ref’d) . . . . . . . . . . . . . . 30,31

Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Splawn v. State, 160 S.W.3d 103 (Tex. App.)Texarkana 2005, pet. ref'd) . . . . . . . . . . . . . 53

State v. Sneed, No. 09-14-00232-CR (Tex. App.)Beaumont Sept. 24, 2014, no pet) . . . . 52

Torres v. State, 794 S.W.2d 596 (Tex. App.—Austin 1990, no pet.) . . . . . . . . . . . . . . . . . 29

Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . 21,28,36,42

9 STATUTES/RULES:

Tex. Code Crim. Pro. Ann. art. 37.07 § 3 (West supp. 2014) . . . . . . 22,23,25,31,37

Tex. Code Crim. Proc. Ann. art. 44.29(b) (West supp. 2012) . . . . . . . . . . . . . . . 53

Tex. Pen. Code Ann. §12.34 (West 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Tex. Pen. Code Ann.§12.35 (West supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . 52,53

Tex. Pen. Code Ann. §38.04 (West supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . 50,51

Tex. R. App. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,27,35,41,47,55

Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,34,39,45,53

Tex. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,27,28,29,30

Tex. R. Evid. 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42,43,44,45

OTHER:

WEBSTER'S THIRD NEW INT'L DICTIONARY 1921 (1981) . . . . . . . . . . . . . . . . . . . 39

10 STATEMENT OF THE CASE

Nature of case: This is an appeal from convictions for the offenses of:

(1) evading arrest (with a vehicle), 14F98-102 (C.R. [6-15-42-CR] pg. 124) (2) aggravated robbery (of a senior), 14F133-102 (C.R. [6-15-43-CR] pg. 128) (3) aggravated robbery (deadly weapon), 14F179-102 (dollar general) (C.R. [6-15-44-CR] pg. 126) (4) aggravated robbery (deadly weapon), 14F252-102 (Shell) (C.R. [6-15-46-CR] pg. 123) and (5) theft ($1,500 - $20,000), 14F180-102 (C.R. [6-15-45-CR] pg. 130)

Judge/Court: Judge Bobby Lockhart sitting in the 102nd District Court of Bowie County, Texas. (C.R. [6-15-42-CR] pg. 124;[6-15-43- CR] pg. 128);[6-15-44-CR] pg. 126;C.R. [6-15-46-CR] pg. 123; [6-15-45-CR] pg. 130).

Pleas: Richard Darby, III (Darby) entered pleas of “guilty” to all of the indictments against him. (R.R. vol. IV pg. 10-17).

Trial disposition: Punishment was tried to a jury which found the following:

(1) evading arrest (with a vehicle) 10 years (C.R. [6-15-42-CR] pg. 106) (2) aggravated robbery (senior) 45 years (C.R. [6-15-43-CR] pg. 107) (3) aggravated robbery (deadly weapon) 45 years (C.R. [6-15-44-CR] pg. 108) (4) aggravated robbery (deadly weapon) 45 years (C.R. [6-15-46-CR] pg. 110) (5) theft ($1,500 - $20,000) 2 years (C.R. [6-15-45-CR] pg. 109)

Those sentenced were imposed by the trial court to run concurrently. (C.R. [6-15-42-CR] pg. 124;[6-15-43-CR] pg. 128);[6-15-44-CR] pg. 126;C.R. [6-15-46-CR] pg. 123; [6-15- 45-CR] pg. 130)

11 ISSUES PRESENTED

Issue 1: Did the State prove beyond a reasonable doubt that Darby committed two unadjudicated sexual assaults?

Issue 2: Was the probative value of two unadjudicated sexual assaults by Darby substantially outweighed by the danger of unfair prejudice?

Issue 3: Was evidence of an alleged discussion of escape by Darby properly admitted as impeachment evidence?

Issue 4: Was a proper foundation laid for the admission of a conversation between Darby and his father at the jail regarding escape?

Issue 5: Darby was convicted of a third degree felony of evading arrest (with a vehicle). Should this have been a state jail felony pursuant to the contradictory Texas Penal Code section 38.04?

Issue 6: Darby’s judgment for aggravated robbery (of a senior) incorrectly reflected a plea of not guilty.

Issue 7: Darby’s judgment for aggravated robbery (with a deadly weapon) incorrectly reflected a plea of not guilty.

Issue 8: Darby’s judgment for aggravated robbery (with a deadly weapon) incorrectly reflected a plea of not guilty.

12 STATEMENT OF ORAL ARGUMENT

Oral argument might assist the Court in considering the admissibility and

impact of the two unadjudicated sexual assaults and the escape discussion.

13 STATEMENT OF FACTS

It is undisputed that on January 21, 2014, Darby and another person were

walking in a residential area in Nash. (R.R. vol. VII pg. 101-3; vol. VI pg. 263-

264). Darby entered a car port, removed an all terrain vehicle and drove it to a

nearby wooded area. (R.R. vol. VII pg. 101-3; vol. VI pg. 263-264). Darby soon

returned to the wooded area to retrieve and sell the all terrain vehicle. (R.R. vol.

VII pg. 101-3; vol. VI pg. 263-264). This was the basis of Darby’s conviction for

theft ($1,500 to $20,000) in cause number 14-F-180-102 and appeal number

06-15-0045-CR.

It is undisputed that eight days later, on January 29, 2014, Darby entered a

Shell gas station in Texarkana, Texas. (R.R. vol. VI pg. 306-310; vol. VII pg. 104-

105). Darby’s face was covered with a white mask and he was carrying a

Derringer pistol. (R.R. vol. VI pg. 306-310; vol. VII pg. 104-105). Darby pointed

the gun at the clerk and demanded money and a box of Cigarellos. (R.R. vol. VI

pg. 306-310; vol. VII pg. 104-105). The clerk gave Darby $300 to $400 and the

Cigarellos and Darby left with both. (R.R. vol. VI pg. 306-310; vol. VII pg. 104-

105). This was the basis of Darby’s conviction for aggravated robbery (with a

deadly weapon) in cause number 14-F-252-102 and appeal number

06-15-0046-CR.

It is also undisputed that six days later, on February 4, 2014, Darby entered

a Dollar General store in Nash, Texas. (R.R. vol. VI pg. 266-7; vol. VII pg. 107-

110; vol. VII pg. 8-13). Darby’s face was covered with a bandana and he was

14 carrying a Derringer pistol. (R.R. vol. VI pg. 266-7; vol. VII pg. 107-110; vol. VII

pg. 8-13). Darby pointed the gun at the clerk and demanded money from the safe

and cash register. (R.R. vol. VI pg. 266-7; vol. VII pg. 107-110; vol. VII pg. 8-13).

The clerk gave Darby about $700 and Darby left with the money. (R.R. vol. VI

pg. 266-7; vol. VII pg. 107-110; vol. VII pg. 8-13). This was the basis of Darby’s

conviction for aggravated robbery (with a deadly weapon) in cause number 14-F-

179-102 and appeal number 06-15-0044-CR.

It is undisputed that three days later, on February 7, 2014, Darby saw an

elderly woman pulling her car into her driveway in Wake Village. (R.R. vol. VII

pg. 113-114; vol. VII pg. 30-35). Darby, his face covered with a bandana, grabbed

the woman’s purse from her as she was unloading items from her car .(R.R. vol.

VII pg. 113-114; vol. VII pg. 30-35). The two scuffled over the purse. (R.R. vol.

VII pg. 113-114; vol. VII pg. 30-35). Darby obtained the purse and ran to his car

and drove away. (R.R. vol. VII pg. 113-114; vol. VII pg. 30-35). This was the

basis of Darby’s conviction for aggravated robbery (of a senior) in cause number

14-F-133-102 and appeal number 06-15-0043-CR.

It is undisputed that immediately thereafter, the Wake Village Police

Department dispatch notified their officers to be on the lookout for a black male

driving a four door red or maroon car, who had just been involved in an

aggravated robbery of the elderly woman. (R.R. vol. VII pg. 113-114; vol. VI pg.

292-298). Officers in an unmarked police car and another marked police car

spotted a vehicle matching the description, which was driven by Darby. (R.R. vol.

15 VII pg. 113-114; vol. VI pg. 292-298). Both pursued Darby’s vehicle, the marked

police vehicle pursued with its lights and sirens. (R.R. vol. VII pg. 113-114; vol.

VI pg. 292-298). Darby did not pull over, but lead the two policemen on a pursuit.

(R.R. vol. VII pg. 113-114; vol. VI pg. 292-298). This was the basis of Darby’s

conviction for evading arrest (in a vehicle) in cause number 14-F-098-102 and

appeal number 06-15-0042-CR.

The State alleges that during pretrial detention at the Bi-State Justice

Building, Darby was involved in two sexual assaults of a fellow inmate by several

inmates. (R.R. vol. VI pg. 172-199). Additionally, the State alleges that during a

jail visit between Darby and his father, Darby discussed escape. (R.R. vol. IX

State’s Ex. 46). However, Darby contends he was merely joking with his father.

16 SUMMARY OF THE ARGUMENT

Issue 1: Did the State prove beyond a reasonable doubt that Darby committed two unadjudicated sexual assaults?

The trial court admitted evidence of Darby’s involvement in two

unadjudicated sexual assaults. However, the State did not established that these

offenses were committed by Darby beyond a reasonable doubt, as required by

Texas Code of Criminal Procedure article 37.07.

Issue 2: Was the probative value of two unadjudicated sexual assaults by Darby substantially outweighed by the danger of unfair prejudice?

The probative value of the two unadjudicated sexual assaults by Darby was

redundant and therefore, low. However, the unfair prejudicial danger was

extremely high. As such, evidence of the two unadjudicated sexual assaults by

Darby were inadmissable pursuant to Texas Rule of Evidence 403.

Issue 3: Was evidence of an alleged discussion of escape by Darby properly admitted as impeachment evidence?

The trial court allowed the State to admit evidence of an alleged discussion

of escape by Darby, even though the evidence had not been disclosed by the State

to Darby prior to trial. This evidence should have been excluded by the trial court

because it was not admissible to rebut Darby's testimony of his remorse as to the

offenses.

17 Issue 4: Was a proper foundation laid for the admission of a conversation between Darby and his father at the jail regarding escape?

The State did not establish a complete foundation for the admission of

the recorded telephone conversation between Darby and his father regarding

escape because the State did not establish that the call involved Darby’s phone

number, or some other fact linking Darby to the telephone call. Accordingly, the

trial court should not have admitted the recording.

Issue 5: Darby was convicted of a third degree felony of evading arrest (with a vehicle). Should this have been a state jail felony pursuant to the contradictory Texas Penal Code section 38.04?

Darby was found guilty of evading arrest (with a vehicle), a state jail

felony. Regardless, the judgment reflected a conviction of a third degree felony

and the punishment charge contained a third degree felony punishment range.

Therefore, Darby received the incorrect punishment range in the punishment

charge and a sentence outside the appropriate punishment range.

Issue 6: Darby’s judgment for aggravated robbery (of a senior) incorrectly reflected a plea of not guilty.

Issue 7: Darby’s judgment for aggravated robbery (with a deadly weapon) incorrectly reflected a plea of not guilty.

Issue 8: Darby’s judgment for aggravated robbery (with a deadly weapon) incorrectly reflected a plea of not guilty.

The judgment for aggravated robbery (of a senior) and two judgments

18 for aggravated robbery (with a deadly weapon) all incorrectly reflect that Darby

pled not guilty. The three judgments should reflect pleas of guilty. These are

typographical errors that this Court should correct on the three judgments.

19 ARGUMENT

Issue 1: Did the State prove beyond a reasonable doubt that Darby committed two unadjudicated sexual assaults?

The trial court admitted evidence of Darby’s involvement in two

unadjudicated sexual assaults. However, the State did not established that these

offenses were committed by Darby beyond a reasonable doubt, as required by

Preservation of Error

To preserve a complaint for appellate review, a party must generally have

presented to the trial court a timely request, objection, or motion stating the

specific grounds for the desired ruling, if they are not apparent from the context of

the request, objection, or motion. See Tex. R. App. P. 33.1(a); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S.

1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have

ruled on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court's refusal to rule. Tex. R.

App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

After jury selection, but prior to the punishment trial, the trial court held a

hearing concerning the admissibility of two unadjudicated sexual assaults

involving Darby. (R.R. vol. VI pg. 6-33). Darby objected to the admission of

evidence of the two unadjudicated sexual assaults on several basis, including that

20 the State could not establish the offenses beyond a reasonable doubt. (R.R. vol.

VI pg. 6-33). The issue was discussed and debated at great length. (R.R. vol. VI

pg. 6-33). Ultimately, the trial court ruled that the two unadjudicated sexual

assaults were admissible. (R.R. vol. VI pg. 33).

Later in the trial, the trial court reaffirmed its ruling. (R.R. vol. VI pg. 155-

156). Additionally, Darby requested a running objection to any evidence of the

two unadjudicated sexual assaults, which was granted by the trial court. (R.R. vol.

VI pg. 156). For good measure, at the end of the State’s case in chief, Darby

requested a directed verdict arguing that the jury should not have heard or

considered the two unadjudicated sexual assaults. (R.R. vol. VII pg. 44-46). That

motion was denied by the trial court. (R.R. vol. VII pg. 44-46). This motion was

renewed by Darby after the defense rested. (R.R. vol. VII pg. 196). Therefore,

this issue was preserved for appellate review.

Standard of Review

The determination of admissibility is within the sound discretion of the trial

court, Jackson v. State, 575 S.W.2d 567, 570 (Tex. Crim. App.1979), and will not

be reversed on appeal unless a clear abuse of discretion is shown." Werner v.

State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986); Johnson v. State, 698 S.W.2d

154, 160 (Tex. Crim. App. 1985), cert. denied, 107 S.Ct. 239 (1986). An

appellate court should not find such an abuse of discretion if the trial court's ruling

was within the "zone of reasonable disagreement." Santellan v. State, 939 S.W.2d

21 155, 169 (Tex. Crim. App. 1997).

More specifically, an appellate court should review a trial court's

admission of extraneous-offense evidence under an abuse-of-discretion standard.

Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996) (plurality op.).

Under this standard, the appellate court will uphold the trial court's ruling if it was

within the zone of reasonable disagreement. Hayden v. State, 296 S.W.3d 549, 553

(Tex. Crim. App. 2009).

Law and Application

The trial court admitted evidence of Darby’s involvement in two

unadjudicated sexual assaults. However, the State did not establish that these

offenses were committed by Darby beyond a reasonable doubt which is a

prerequisite established by Texas Code of Criminal Procedure article 37.07.

Texas Code of Criminal Procedure article 37.07 provides in relevant part as

follows:

Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty

(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible,

22 regardless of whether he has previously been charged with or finally convicted of the crime or act. . . .

Tex. Code Crim. Pro. Ann. art. 37.07 § 3(a)(1) (West supp. 2014)(emphases

added). Therefore, evidence of an unadjudicated extraneous offense must be

established beyond a reasonable doubt.

Here, the State presented the testimony of the inmate victim. (R.R. vol. VI

pg. 173-260). The victim testified that he was incarcerated in pre-trial detention at

the Bi-State Justice Building in a pod used to house younger prisoners. (R.R. vol.

VI pg. 173-260). In the pod was the victim, who was physically the smallest and

white, and Richard Darby, Gregory Houston, Craig Taylor, Kwesie Wilson and

Ayende Germany, who are all larger than the victim and African-Americans. (R.R.

vol. VI pg. 173-260). The victim testified that Darby was the main actor in the

pod who "orchestrated everything." (R.R. vol. VI pg. 178).

The victim testified that early in their incarceration, the group generally

abused and later physically assaulted him. (R.R. vol. VI pg. 177-178). A week

later, the group held the victim down and someone sodomized him with a

toothbrush. (R.R. vol. VI pg. 183-188). The victim didn’t know who physically

did so. (R.R. vol. VI pg. 188). In another incident, Darby told the victim to

perform oral sex of Gregory and the victim complied. (R.R. vol. VI pg. 192-193).

However, no one else was in the cell other than Gregory and the victim and

Gregory slapped the victim. (R.R. vol. VI pg. 192-193).

Ayende Germany also testified at trial as to the abuse. (R.R. vol. VI pg. 56-

103). Germany testified that Darby sodomized the victim with the toothbrush.

23 (R.R. vol. VI pg. 68-70). Finally, Germany testified that Darby directed the victim

into oral sex of Gregory. (R.R. vol. VI pg. 75-77).

Darby admitted that the victim had been physically and sexually assaulted.

(R.R. vol. VII pg. 129). However, Darby denied doing so. (R.R. vol. VII pg. 129).

Although video cameras recorded the pods, there was no direct video evidence of

Darby’s involvement. (R.R. vol IX State’s Exhibit 4). Rather, Darby testified that

he entered a cell with the others to smoke synthetic marijuana with them. (R.R.

vol. VII pg. 138). There, Gregory and Taylor became involved in an altercation

with the victim. (R.R. vol. VII pg. 138-9). Wilson and Taylor held the victim

down while Gregory sodomized the victim with a toothbrush. (R.R. vol. VII pg.

138-140). Finally, Darby testified that Roberts initially agreed with Gregory to

perform oral sex on Gregory to stop the assaults. (R.R. vol. VII pg. 150-152).

However, the victim later refused and Gregory punched the victim to force him to

perform oral sex on Gregory. (R.R. vol. VII pg. 150-152).

Thus, there was evidence of two sexual assaults. In the first assault, the

victim was sodomized, but who was physically responsible was contradicted. The

victim didn’t know who did it; Gregory testified Darby did it; Darby testified

Gregory did it. In the second assault, the victim performed oral sex on Gregory.

There was some contradicted evidence that Darby merely instructed the victim to

do so, but it seems undisputed that Gregory and the victim were in the cell and that

Gregory punched the victim to physically force the victim to do so.

Thus, the evidence was not sufficient to establish that Darby was

24 responsible beyond a reasonable doubt. As such, evidence of the two

unadjudicated sexual assaults was inadmissable pursuant to Texas Code of

Criminal Procedure article 37.07 in all five cases.

Harmful Error

An error must affect the substantial rights of the accused to be harmful. See

Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. King

v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).

Alternatively, error is harmless if the error "did not influence the jury, or had but a

slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The

Appellant does not bear the burden to establish such harmful error. Schutz v. State,

63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4

(Tex. Crim. App. 2001). Rather, it is the responsibility of the appellate court to

assess harm after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex.

Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

To determine whether erroneous admission of such evidence affected a

defendant's substantial rights at the punishment phase the appellate court should

ask whether the defendant received a longer sentence as a result of the error.

See Davis v. State, 315 S.W.3d 908, 918-19 (Tex. App.—Houston [14th Dist.]

2010) rev'd on other grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011); Ivey v.

State, 250 S.W.3d 121, 126 (Tex. App.—Austin 2007), aff'd, 277 S.W.3d 43

25 (Tex. Crim. App. 2009)). The appellate court should consider everything in the

record, including other evidence admitted in the case, the nature of the evidence

supporting the jury's determination, the character of the alleged error, and how it

might be considered in connection with other evidence in the case. Motilla

v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

Here, the evidence of the two unadjudicated sexual assaults resulted in

longer sentences for Darby. The offenses were committed in jail by inmates. (R.R.

vol. VI pg. 172-199). The offenses were committed against a minor. Id. The

offenses were committed by minors. Id. The offenses were committed by a group

of physically large juveniles against a single physically small juvenile. Id. The two

offenses were sexual in nature, committed by a group of male juveniles against a

single male juvenile. Id. The specific nature of the two sexual assaults was

shockingly demeaning to the victim in nature. Id. These factors alone have a

strong tendency to grab the jury’s attention and suggest a punishment of Darby on

the basis of those offenses as opposed to the offenses for which Darby was

actually being punished. Id. As such, the erroneous admission of the two

unadjudicated sexual assaults was harmful to Darby.

26 Issue 2: Was the probative value of two unadjudicated sexual assaults by Darby substantially outweighed by the danger of unfair prejudice?

The probative value of the two unadjudicated sexual assaults by Darby was

redundant and therefore, low. However, the unfair prejudicial danger was

extremely high. As such, evidence of the two unadjudicated sexual assaults by

Darby were inadmissable pursuant to Texas Rule of Evidence 403.

To preserve a complaint for appellate review, a party must generally have

presented to the trial court a timely request, objection, or motion stating the

specific grounds for the desired ruling, if they are not apparent from the context of

the request, objection, or motion. See Tex. R. App. P. 33.1(a); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S.

1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have

ruled on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court's refusal to rule. Tex. R.

App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

After jury selection, but prior to the punishment trial, the trial court held a

hearing concerning the admissibility of two unadjudicated sexual assaults

involving Darby. (R.R. vol. VI pg. 6-33). There, Darby objected to the admission

of evidence of the two unadjudicated sexual assaults on several basis, including

Texas Rule of Evidence 403. (R.R. vol. VI pg. 8, 6-33). The issue was discussed

27 and debated at great length. (R.R. vol. VI pg. 6-33). Ultimately, the trial court

ruled that the two unadjudicated sexual assaults were admissible. (R.R. vol. VI pg.

33).

Later in the trial the trial court reaffirmed it’s ruling. (R.R. vol. VI pg. 155-

156). Additionally, Darby requested a running objection to any evidence of the

two unadjudicated sexual assaults, which was granted by the trial court. (R.R. vol.

VI pg. 156). For good measure, at the end of the State’s case in chief, Darby

requested a directed verdict arguing that the jury should not have heard or

considered the two unadjudicated sexual assaults, although he did not specifically

re-urge the 403 objection basis. (R.R. vol. VII pg. 44-46). That motion was denied

by the trial court. (R.R. vol. VII pg. 44-46). This motion was renewed by Darby

after the defense rested. (R.R. vol. VII pg. 196). Therefore, this issue was

preserved for appellate review.

The determination of admissibility is within the sound discretion of the trial

court, Jackson v. State, 575 S.W.2d 567, 570 (Tex. Crim. App.1979), and will not

be reversed on appeal unless a clear abuse of discretion is shown." Werner v.

State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986); Johnson v. State, 698 S.W.2d

154, 160 (Tex. Crim. App. 1985), cert. denied, 107 S.Ct. 239 (1986). An

appellate court should not find such an abuse of discretion if the trial court's ruling

was within the "zone of reasonable disagreement." Santellan v. State, 939 S.W.2d

28 155, 169 (Tex. Crim. App. 1997).

The probative value of the two unadjudicated sexual assaults by Darby was

redundant and therefore, low. However, the unfair prejudicial danger was

extremely high. As such, evidence of the two unadjudicated sexual assaults

involving Darby were inadmissable pursuant to Texas Rule of Evidence 403.

Relevant evidence is generally admissible, but it is properly excluded under

Texas Rule of Evidence 403 when "its probative value is substantially outweighed

by the danger of unfair prejudice." Reese v. State, 33 S.W.3d 238 (Tex. Crim.

App. 2000); Tex. R. Evid. 403. "Unfair prejudice" means an undue tendency to

suggest a decision on an improper basis. See Rogers v. State, 991 S.W.2d 263, 266

(Tex. Crim. App. 1999); Flores v. State, 125 S.W.3d 744, 746 (Tex.

App.—Houston [1st Dist.] 2003, no pet.). Almost all evidence offered by the

prosecution will be prejudicial to the defendant. Thus, only evidence which is

unfairly prejudicial should be excluded. Caballero v. State, 919 S.W.2d 919, 922

(Tex. App.—Houston [14th Dist.] 1996, pet. ref'd); Fletcher v. State, 852 S.W.2d

271, 277 (Tex. App.—Dallas 1993, pet. ref'd). The term refers to "an undue

tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one. Torres v. State, 794 S.W. 2d 596, 600 (Tex.

App.—Austin 1990, no pet.).

Texas Rule of Evidence 403 "favors admissibility of relevant evidence, and

29 the presumption is that relevant evidence will be more probative than prejudicial."

Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991). In other

words, this rule carries with it a presumption that relevant evidence will be more

probative than prejudicial. McFarland v. State, 845 S.W.2d 824, 837 (Tex. Crim.

App. 1992), overruled in part on other grounds by Bingham v. State, 915 S.W.2d

9 (Tex. Crim. App. 1994) (citing Green v. State, 840 S.W.2d 394 (Tex. Crim. App.

1992)). The following factors are taken into consideration when undertaking a

rule 403 analysis: (1) the inherent probative force of the proffered evidence; (2)

the proponent's need for that evidence; (3) any tendency of the evidence to suggest

decision on an improper basis; (4) any tendency of the evidence to confuse or

distract the jury from the main issues; (5) any tendency of the evidence to be given

undue weight by a jury that has not been equipped to evaluate the probative force

of the evidence; and (6) the likelihood that presentation of the evidence will

consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). Each

factor is examined in turn.

(1) Probative Force

The first factor, the inherent probative force of the proffered evidence,

weighs in favor of admission. A jury may consider unadjudicated offenses in

assessing punishment. See Smith v. State, 899 S.W.2d 31 (Tex. App.)Austin

1995, pet. ref’d). However, in order to do so, the State must establish that the

30 offenses were committed by Darby beyond a reasonable doubt. See Tex. Code

Crim. Pro. Ann. Art. 37.07 §3(a)(1) (West Supp. 2014). As discussed in greater

detail above, the State did not do so. Accordingly, this factor weighs against

admission.

(2) State’s Need for Evidence

The second factor, the proponent's need for the evidence, weighs against

admission because the inherent probative force of the proffered evidence was

slight. A jury may consider unadjudicated offenses in assessing punishment. See

Smith v. State, 899 S.W.2d 31 (Tex. App.)Austin 1995, pet. ref’d). However, the

jury was already considering the fact that Darby had committed four felony

offenses and one state jail felony, because all these offenses were tried together.

Therefore, the State had little need to add another offense to the jury’s

consideration. Accordingly, this factor weighs against admission.

(3) Tendency to Suggest Decision on Improper Basis

The third factor, any tendency of the evidence to suggest decision on an

improper basis, weighs against admission. The two unadjudicated sexual assaults

were particularly offensive for numerous reasons. The offenses were committed in

jail by inmates. (R.R. vol. VI pg. 172-199). The offenses were committed against

a juvenile victim. Id. The offenses were committed by juveniles. Id. The offenses

were committed by a group of physically large juveniles against a single

31 physically small juvenile. Id. The two offenses were sexual in nature, committed

by a group of male juveniles against a single male juvenile. Id. The specific

details of the two sexual assaults was shockingly demeaning to the victim in

nature. Id. These factors alone have a strong tendency to grab the jury’s attention

and suggest a punishment of Darby on the basis of those offenses, as opposed to

the offenses for which Darby was actually being punished. Id.

Additionally, the offenses were committed by a group of several African

American juvenile inmates against a single white juvenile inmate. Id.

Accordingly, these offenses also have the potential to insight an improper racial

basis for Darby’s punishment.

Thus, these factors have a strong tendency to induce the jury to decide

Darby’s punishment based upon the extraneous offenses, rather than the offenses

for which Darby was being punished. Additionally, the offenses have potential to

insight an improper racial basis for Darby’s punishment. Accordingly, this factor

weighs against admission.

(4) Tendency to Confuse or Distract

The fourth factor, the tendency of the evidence to confuse or distract the

jury from the main issues, weighs in favor of exclusion. For the same reasons as

addressed directly above under the third factor, this factor weighs against

32 (5) Tendency to Be Given Undue Weight

The fifth factor, the tendency of the evidence to be given undue weight by a

jury that has not been equipped to evaluate the probative force of the evidence,

weighs in favor of exclusion. For the same reasons as addressed directly above

under the third factor, this factor weighs against admission.

(6) Consume Time

The sixth factor, the likelihood that presentation of the evidence will

consume an inordinate amount of time or merely repeat evidence already admitted,

weighs in favor of exclusion. The State called a total of eight witnesses during the

punishment trial case in chief. The sole purpose of Ayende Germany’s testimony

was the two unadjudicated sexual assaults. (R.R. vol. VI pg. 56-103). The sole

purpose of Larry Vaden’s testimony was video of the two unadjudicated sexual

assaults. (R.R. vol. VI pg. 115-122). The sole purpose of Jerl Palmore’s testimony

was video of the two unadjudicated sexual assaults. (R.R. vol. VI pg. 1223-171).

The sole purpose of the victim’s testimony was the two unadjudicated sexual

assaults. (R.R. vol. VI pg. 172-260). Thus, half of the State’s witnesses (4 of 8)

testified only as to the two unadjudicated sexual assaults. That testimony included

approximately 205 pages of the total of approximately 297 pages of State witness

testimony, or 69 percent of the State’s testimony during the case in chief.

Accordingly, this factor weighs against admission.

33 Because five of the six factors weigh against admission and only one weighs

in favor of admission, the probative value of the two unadjudicated sexual assaults

was substantially outweighed by the danger of unfair prejudice to Darby in all five

cases.

An error must affect the substantial rights of the accused to be harmful. See

Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. King

v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).

Alternatively, error is harmless if the error "did not influence the jury, or had but a

slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The

Appellant does not bear the burden to establish such harmful error. Schutz v. State,

63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4

(Tex. Crim. App. 2001). Rather, it is the responsibility of the appellate court to

assess harm after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex.

Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

Here, evidence of the two extraneous unadjudicated sexual assaults was

unfairly prejudicial to Darby in this case as discussed in detail above.

Accordingly, the error in admitting evidence of the two extraneous unadjudicated

sexual assaults was harmful error.

34 Issue 3: Was evidence of an alleged discussion of escape by Darby properly admitted as impeachment evidence?

The trial court allowed the State to admit evidence of an alleged discussion

of escape by Darby, even though the evidence had not been disclosed by the State

to Darby prior to trial. This evidence should have been excluded by the trial court

because it was not admissible to rebut Darby's testimony of his remorse as to the

To preserve a complaint for appellate review, a party must generally have

presented to the trial court a timely request, objection, or motion stating the

specific grounds for the desired ruling, if they are not apparent from the context of

the request, objection, or motion. See Tex. R. App. P. 33.1(a); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S.

1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have

ruled on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court's refusal to rule. Tex. R.

App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

Here, Darby objected to the State presenting evidence of a recorded

conversation between Darby and his father regarding escape. (R.R. VII pg 198).

The issue was considered at length by the trial court. (R.R. VII pg 198-214).

Ultimately, the trial court ruled the evidence was admissible as rebuttal evidence.

35 (R.R. VII pg 202). Therefore, this issue was preserved for appellate review.

The determination of admissibility is within the sound discretion of the trial

court, Jackson v. State, 575 S.W.2d 567, 570 (Tex. Crim. App.1979), and will not

be reversed on appeal unless a clear abuse of discretion is shown." Werner v.

State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986); Johnson v. State, 698 S.W.2d

154, 160 (Tex. Crim. App. 1985), cert. denied, 107 S.Ct. 239 (1986). An

appellate court should not find such an abuse of discretion if the trial court's ruling

was within the "zone of reasonable disagreement." Santellan v. State, 939 S.W.2d

155, 169 (Tex. Crim. App. 1997). More specifically, "whether the introduction of

an extraneous offense into evidence is reversible error is an ad hoc determination

based on the merits of each case." Ruiz v. State, 579 S.W.2d 206, 209 (Tex. Crim.

App. 1979).

The trial court allowed the State to admit evidence of an alleged discussion

of escape by Darby, even though the evidence had not been disclosed by the State

to Darby prior to trial. This evidence should have been excluded by the trial court

because it was not admissible to rebut Darby's testimony of his remorse as to the

After the defense rested in the punishment phase of the trial, the State

36 attempted to admit evidence of an alleged discussion of escape by Darby. (R.R.

vol. VII pg. 198-200). The State confessed that the evidence had not been

disclosed to Darby prior to trial. (R.R. vol. VII pg 198-214). However, the State

argued that the evidence was admissible to rebut Darby’s testimony of his remorse

as to the offenses. (R.R. vol. VII pg 198-214).

The Texas Code of Criminal Procedure requires the State to give notice of

prior bad acts that the State intends to use against a Defendant in the punishment

phase of a trial. Specifically article 37.07 provides in relevant part:

Verdict must Be General; Separate Hearing on Proper Punishment

(g) On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

Tex. Code Crim. Pro. Ann. art. 37.07, § 3(g) (West Supp. 2014).

Darby made such a timely request for extraneous offenses the State intended

to use. (C.R. [6-15-42-CR] pg. 18;[6-15-43-CR] pg. 20);[6-15-44-CR] pg. 19;

C.R. [6-15-46-CR] pg. 23; [6-15-45-CR] pg. 19). Thus, according to Texas Code

of Criminal Procedure article 37.07 section 3(g), the State was required to have

37 given notice of the bad act. However, the State did not give any prior notice of the

alleged discussion of escape. (R.R. VII pg 198-214). The State contends that the

evidence was rebuttal evidence and that as such, it was not subject to this statutory

disclosure requirement. (R.R. VII pg. 198-214).

Rebuttal evidence is evidence which is offered to refute a defensive theory

or mitigation evidence. See e.g. Jaubert v. State, 74 S.W.3d 1, 4-5 (Tex. Crim.

App.), cert. denied, 537 U.S. 1005 (2002). In the punishment phase, when the

defendant presents evidence in mitigation, the State may offer rebuttal evidence of

that mitigation evidence. See Gipson v. State, 619 S.W.2d 169 (Tex. Crim. App.

1981). Such evidence can include extraneous offenses which are not disclosed

prior to trial. See e.g. Id. In Gipson, the defendant argued in the punishment

phase that he had been forced to commit a sexual assault. Id. The State rebutted

this testimony with evidence of a prior sexual assault. Id. The Texas Court of

Criminal Appeals concluded that the defendant chose to raise the contested issue

and therefore opened the door to the State’s rebuttal evidence. Id.

Here, Darby presented evidence that he was remorseful for what he had

done. (R.R. vol. VII pg. 80-164). Evidence of remorse can be considered to be

mitigation evidence. See e.g. ex Parte Williams, AP-76,455, fn. 76 (Tex. Crim.

App. June 13, 2012)(mem. op.); but see Hernandez-Munoz v. State, No.

14-11-00730-CR, pg. 10 (Tex. App.)Houston [14th Dist.] Dec. 28, 2012, no

pet.)(plea of guilty itself leaves impression of remorsefulness)(mem. op.). As

such, the State could offer evidence to rebut this defense mitigation evidence. See

38 Gipson v. State, 619 S.W.2d 169 (Tex. Crim. App. 1981).

However, evidence of an alleged discussion of escape evidence does not

rebut evidence of remorsefulness. Remorse is defined as a growing distress

arising from a sense of guilt for past wrongs. Hall v. State, 13 S.W.3d 115 (Tex.

App.)Fort. Worth 2000), pet. dism'd, improvidently granted, 46 S.W.3d 264 (Tex.

Crim. App. 2001)(citing WEBSTER'S THIRD NEW INT'L DICTIONARY 1921 (1981)).

Evidence of Darby’s alleged discussion of escape is not evidence that Darby was

not distressed as a result of guilt for the offenses. Accordingly, the State’s

evidence of Darby’s alleged discussion of escape does not rebut Darby’s testimony

of remorse. For this reason, the evidence of the alleged discussion of escape

should not have been admitted by the trial court in all five cases as rebuttal

evidence.

An error must affect the substantial rights of the accused to be harmful. See

Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. King

v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).

Alternatively, error is harmless if the error "did not influence the jury, or had but a

slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The

Appellant does not bear the burden to establish such harmful error. Schutz v. State,

63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4

39 (Tex. Crim. App. 2001). Rather, it is the responsibility of the appellate court to

assess harm after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex.

Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

Evidence of the discussion of escape by Darby was harmful. The jury

already heard evidence that Darby had committed the core five offenses at issue.

Additionally, the jury heard evidence as to two unadjudicated sexual assaults by

Darby. Thus, the jury had heard evidence of a total of seven offenses by Darby.

Evidence of this alleged discussion of escape allowed the jury to consider a total

of eight offenses when setting the punishment on the underlying five offenses.

Additionally, evidence of the discussion of escape established in the minds of the

jurors the idea that Darby wholly refused to accept punishment for the five

offenses. For these reasons the admission of evidence of the discussion of escape

by Darby was harmful.

40 Issue 4: Was a proper foundation laid for the admission of a conversation between Darby and his father at the jail regarding escape?

The State did not establish a complete foundation for the admission of the

recorded telephone conversation between Darby and his father regarding escape

because the State did not establish that the call involved Darby’s phone number, or

some other fact linking Darby to the telephone recording. Accordingly, the trial

court should not have admitted the recording.

To preserve a complaint for appellate review, a party must generally have

presented to the trial court a timely request, objection, or motion stating the

specific grounds for the desired ruling, if they are not apparent from the context of

the request, objection, or motion. See Tex. R. App. P. 33.1(a); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S.

1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have

ruled on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court's refusal to rule. Tex. R.

App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

Darby objected to the admission of the telephone recording on the basis of

the failure of the State to lay the proper foundation. (R.R. vol. VIII pg. 23). This

motion was overruled by the trial court. (R.R. vol. VIII pg. 23). Therefore, this

issue was preserved for appellate review.

41 Standard of Review

The determination of admissibility is within the sound discretion of the trial

court, Jackson v. State, 575 S.W.2d 567, 570 (Tex. Crim. App.1979), and will not

be reversed on appeal unless a clear abuse of discretion is shown." Werner v.

State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986); Johnson v. State, 698 S.W.2d

154, 160 (Tex. Crim. App. 1985), cert. denied, 107 S.Ct. 239 (1986). An appellate

court should not find such an abuse of discretion if the trial court's ruling was

within the "zone of reasonable disagreement." Santellan v. State, 939 S.W.2d 155,

169 (Tex. Crim. App. 1997).

The State did not establish a complete foundation for the admission of the

recorded telephone conversation between Darby and his father regarding escape

because the State did not establish that the call involved Darby’s phone number,

or some other fact linking Darby to the telephone recording. Accordingly, the trial

Texas Rule of Evidence 901 provides in relevant part:

Authenticating or Identifying Evidence

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only — not a complete 42 list — of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. . . . (5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker. (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to: (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

Tex. R. Evid. 901; see also Angleton v. State, 971 S.W.2d 65 (Tex. Crim. App.

1998).

To authenticate the recorded telephone conversation, the State offered the

testimony of Jeff Neal, the Chief Deputy with the Bowie County Sheriff’s

Department. (R.R. vol. VII pg. 227-240). Neal testified that as part of his duties

he controlled the Bowie County Jail. (R.R. vol. VII pg. 228). He explained the

existence of a system to record jail calls (internal and external) which is provided

by an outside contractor called Correct Solutions. (R.R. vol. VII pg. 228). Neal

explained that an inmate is identified by the inmate entering a unique number

assigned to the inmate. (R.R. vol. VII pg. 229,231). He explained that a recording

had been made of a personal visitation between Darby and his father the night

43 before, to which Neal had listened. (R.R. vol. VII pg. 229). Neal summarily

identified the voice of Darby and his father on the recording. (R.R. vol. VII pg.

229).

The State did not authenticate the telephone recording under Texas Rule of

Evidence 901(b)(1). Jeff Neal is not a witness with personal knowledge. Jeff

Neal is the Chief Deputy with the Bowie County Sheriff’s Department. (R.R. vol.

VII pg. 227-239). Neal testified that as part of his duties he controlled the Bowie

County Jail. (R.R. vol. VII pg. 228). He explained the existence of a system to

record jail calls (internal and external) which is provided by an outside contractor,

Correct Solutions. (R.R. vol. VII pg. 228). Thus, Jeff Neal did not testify that he

had personal knowledge of how the system worked or that it, in fact, worked, since

it was provided by Correct Solutions. (R.R. vol. VII pg. 227-239).

The State did not authenticate the telephone recording under Texas Rule of

Evidence 901(b)(6). Texas Rule of Evidence 901(B)(6) generally requires

evidence that the phone number was assigned to the person it is being attributed

to. Here, there was no such evidence. (R.R. vol. VII pg. 227-240). Jeff Neal

testified that an inmate is identified by the inmate himself entering a unique

number assigned to the inmate. (R.R. vol. VII pg. 229,231). Regardless, Neal did

not testify that this phone call was attached to Darby through this system. (R.R.

vol. VII pg. 227-240). Nor did Neal testify as to any system to verify or assure

that any such number input by the inmate was correct. (R.R. vol. VII pg. 227-240).

Thus, the testimony of Neal was insufficient to link Darby to the telephone

44 recording.

The State did not authenticate the telephone recording under Texas Rule of

Evidence 901(b)(5). Jeff Neal did summarily state that the recording was of Darby

and his father. (R.R. vol. VII pg. 229). However, Neal did not testify of his

familiarity with either’s voice. (R.R. vol. VII pg. 227-240). Even if Jeff Neal had

testified of his familiarity with Darby and his father’s voice, there is no other

assurance that the recording was accurate, unedited and complete. Jeff Neal did

testify that the recording had not been "altered or tampered with in any way."

(R.R. vol. VII pg. 227-240). However, this must be discounted in light of Jeff

Neal’s testimony that the recording system was provided by an outside contractor,

Correct Solutions. (R.R. vol. VII pg. 227-240).

For these reasons, the State did not establish the proper foundation for the

admission of the telephone recording in all five cases.

An error must affect the substantial rights of the accused to be harmful. See

Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. King

v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).

Alternatively, error is harmless if the error "did not influence the jury, or had but a

slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The

45 Appellant does not bear the burden to establish such harmful error. Schutz v. State,

63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4

(Tex. Crim. App. 2001). Rather, it is the responsibility of the appellate court to

assess harm after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex.

Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

Evidence of the discussion of escape by Darby was harmful. The jury

already heard evidence that Darby had committed the five offenses at issue.

Additionally, the jury heard evidence as to two unadjudicated sexual assaults by

Darby. Thus, the jury had heard evidence of a total of seven offenses by Darby.

Evidence of this alleged discussion of escape allowed the jury to consider a total

of eight offenses when setting the punishment on the underlying five offenses.

Additionally, evidence of the discussion of escape established in the minds of the

jurors the idea that Darby wholly refused to accept punishment for the five

offenses. For these reasons the admission of evidence of the discussion of escape

46 Issue 5: Darby was convicted of a third degree felony of evading arrest (with a vehicle). Should this have been a state jail felony pursuant to the contradictory Texas Penal Code section 38.04?

Darby was found guilty of evading arrest (with a vehicle), a state jail felony.

Regardless, the judgment reflected a conviction of a third degree felony and the

punishment charge contained a third degree felony punishment range. Therefore,

Darby received the incorrect punishment range in the punishment charge and a

sentence outside the appropriate punishment range.

To preserve a complaint for appellate review, a party must generally have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling, if they are not apparent from the context of

the request, objection, or motion. See Tex. R. App. P. 33.1(a); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S.

1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have

ruled on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court's refusal to rule. Tex. R.

App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

However, error which is based upon an absolute right or prohibition need

not be preserved. Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)

(discussing three types of rights); see also Garcia v. State, 149 S.W.3d 135, 144

47 (Tex. Crim. App. 2004). Such error is often called fundamental error. See e.g.

Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006). An error is considered

fundamental when it "directly and adversely affects the interest of the public

generally, as that interest is declared in the statutes or Constitution of this state."

Ramsey v. Dunlop, 146 Tex. 196, 202, 205 S.W.2d 979, 983 (1947). A denial of

absolute systemic requirements does not require a timely and specific objection to

raise for the first time on appeal. See Aldrick v. State, 104 S.W.3d 890, 895 (Tex.

Crim. App. 2003); Rodriguez v. State, 71 S.W.3d 800, 802 (Tex. App.—Texarkana

2002, no pet.); Rushing v. State, 50 S.W.3d 715, 723 (Tex. App.—Waco 2001),

aff'd, 85 S.W.3d 283 (Tex. Crim. App. 2002).

A "void" or "illegal" sentence is one that is not authorized by law. Ex parte

Pena, 71 S.W.3d 336, 336 n. 2 (Tex. Crim. App. 2002); see Mizell v. State, 119

S.W.3d 804, 806 (Tex. Crim. App. 2003) ("A sentence that is outside the

maximum or minimum range of punishment is unauthorized by law and therefore

illegal."); Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996) (per

curiam) (sentence of twenty-five years' imprisonment for offense for which

maximum range of punishment was two years' imprisonment was illegal). Such a

"void" or "illegal" sentence is fundamental error and can be raised at any time. Ex

parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996) (per curiam).

Here, Darby was convicted of, and punished for, a third degree felony, when

the offense of which he was convicted provides for only a state jail felony

conviction and punishment. A trial court commits fundamental error by allowing

48 conviction for anything but the charged offense or a lesser included offense. Ivory

v. State, 632 S.W.2d 614, 616 (Tex. Crim. App. [Panel Op.] 1982). A sentence

outside the range of punishment is unauthorized. Mizell v. State, 119 S.W.3d 804,

806 (Tex. Crim. App. 2003); Speth v. State, 6 S.W.3d 530, 532-33 (Tex. Crim.

App. 1999) ("[A] defendant has an absolute and nonwaivable right to be sentenced

within the proper range of punishment established by the Legislature."). No trial

objection is required to appeal an unauthorized punishment. Mizell, 119 S.W.3d at

806 n.6. Thus, this error is fundamental and need not be preserved at trial.

Whether a sentence is void or illegal appears to be a question of law

reviewed de novo. See e.g. Heath v. State, 817 S.W.2d 335 (Tex. Crim. App.

1991).

Darby was found guilty of evading arrest (with a vehicle) which should be a

state jail felony. Regardless, the Judgment reflected a third degree felony.

Additionally, the punishment charge included a third degree felony punishment

range. Therefore, Darby received the incorrect punishment range in the

punishment charge and a sentence outside the appropriate punishment range.

Darby was indicted with evading arrest (with a vehicle). (C.R. [6-15-42-CR]

49 pg. 15). Likewise, the judgment reflects that Darby was convicted of evading

arrest (with a vehicle). (C.R. [6-15-42-CR] pg. 124). Texas Penal Code section

38.04 provides in relevant part as follows:

Evading Arrest or Detention

(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him. (b) An offense under this section is a Class A misdemeanor, except that the offense is: (1) a state jail felony if: (A) the actor has been previously convicted under this section; or (B) the actor uses a vehicle or watercraft while the actor is in flight and the actor has not been previously convicted under this section; (2) a felony of the third degree if: (A) the actor uses a vehicle or watercraft while the actor is in flight and the actor has been previously convicted under this section; or (B) another suffers serious bodily injury as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight; or (1) a state jail felony if the actor has been previously convicted under this section; (2) a felony of the third degree if: (A) the actor uses a vehicle while the actor is in flight; (B) another suffers serious bodily injury as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight; or

50 (C) the actor uses a tire deflation device against the officer while the actor is in flight; or (3) a felony of the second degree if: (A) another suffers death as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight; or (B) another suffers serious bodily injury as a direct result of the actor's use of a tire deflation device while the actor is in flight.

Tex. Pen. Code Ann. §38.04 (West supp. 2014)(emphasis added). Thus, pursuant

to the express terms of section 38.04 (b)(1)(B), Darby’s evading arrest with a

vehicle is a state jail felony. However, section 38.04(b)(2)(B)(2)(A) provides that

such an offense is a third degree felony in contradiction of section 38.04 (b)(1)(B).

Thus, the Texas Penal Code provides contradictory punishments for the same

offense.

When a single penal provision provides contradictory punishments, the trial

court should impose only the lighter punishment in the interest of fairness to the

Defendant. Accordingly, this Court should allow only a punishment for a state jail

felony as expressly stated in Tex. Pen. Code Ann. §38.04 (b)(1)(B).

However, in Adetomiwa v. State, the Fort Worth Court of Appeals noted this

discrepancy. 421 S.W.3d 922, 926 (Tex. App.)Fort Worth 2014, no pet.). The

court reconciled the discrepancy and concluded that evading arrest in a vehicle

51 was a third degree felony, regardless. Id. Citing Adetomiwa v. State, the

Beaumont Court of Appeals likewise concluded the evading arrest (in a vehicle)

was a third degree offense, regardless of this discrepancy. State v. Sneed, No.

09-14-00232-CR (Tex. App.)Beaumont Sept. 24, 2014, no pet.)(citing Adetomiwa

v. State, 421 S.W.3d 922, 926 (Tex. App.)Fort Worth 2014, no pet.)).

Regardless, this Court should decline to follow the Fort Worth and

Beaumont courts of appeal. Both courts recognized the discrepancy, but both

reconciled the discrepancy to conclude that evading arrest (in a vehicle) was a

third degree offense. State v. Sneed, No. 09-14-00232-CR (Tex. App.)Beaumont

Sept. 24, 2014, no pet.); Adetomiwa v. State, 421 S.W.3d 922, 926 (Tex.

App.)Fort Worth 2014, no pet.). However, a reading of both cases reveals a lack

of an express basis for reconciling the discrepancy. Id.

The applicable punishment range for a state jail felony is 180 days to two

years and the punishment range for a third degree felony is two to ten years. Tex.

Pen. Code Ann. §12.34 (West 2011); Tex. Pen. Code Ann.§12.35 (West supp.

2014). Here, the third degree punishment range was included in the punishment

charge. (C.R. [6-15-42-CR] pg. 106). Accordingly, if this conviction should have

been a state jail felony, the punishment received by Darby was not supported by

the offense of which he was convicted. Therefore, Darby received the incorrect

punishment range in the punishment charge and a sentence outside the appropriate

punishment range.

52 Harmful Error

An error must affect the substantial rights of the accused to be harmful. See

Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. King

v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).

Alternatively, error is harmless if the error "did not influence the jury, or had but a

slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The

Appellant does not bear the burden to establish such harmful error. Schutz v. State,

63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4

(Tex. Crim. App. 2001). Rather, it is the responsibility of the appellate court to

assess harm after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex.

Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

Here, Darby was convicted of a third degree felony conviction and received

a ten year sentence. (C.R. [6-15-42-CR] pg. 124). However, Darby should have

faced a state jail felony conviction and a potential punishment range of 180 days to

two years. See Tex. Pen. Code Ann. §12.35 (West supp. 2014). Accordingly,

Darby’s third degree felony conviction and his ten year sentence were outside the

appropriate punishment range and was harmful error.

The proper remedy for unauthorized punishment is a new punishment

hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 2012); Splawn

v. State, 160 S.W.3d 103, 107-08 (Tex. App.)Texarkana 2005, pet. ref'd).

Accordingly, Darby’s conviction should be reversed and the case remanded for a

53 new punishment hearing.

54 Issue 6: Darby’s judgment for aggravated robbery (of a senior) incorrectly reflected a plea of not guilty.

Issue 7: Darby’s judgment for aggravated robbery (with a deadly weapon) incorrectly reflected a plea of not guilty.

Issue 8: Darby’s judgment for aggravated robbery (with a deadly weapon) incorrectly reflected a plea of not guilty.

The judgment for aggravated robbery (of a senior) and two judgments for

aggravated robbery (with a deadly weapon) all incorrectly reflect that Darby pled

not guilty. The three judgments should reflect pleas of guilty. These are

typographical errors that this Court should correct on the three judgments.

To preserve a complaint for our review, a party must generally have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling, if they are not apparent from the context of

the request, objection, or motion. See Tex. R. App. P. 33.1(a). However,

typographical errors can be corrected on appeal and do not appear to have to have

been preserved at trial. See e.g. Gray v. State, 628 S.W.2d 228 (Tex.

App.—Corpus Christi 1982, pet. ref’d) (citing Luna v. State, 288 S.W. 465 (Tex.

Crim. App. 1926)).

55 Standard of Review

Counsel is unable to locate a specifically applicable standard of review.

Regardless, this is presumably reviewed as a legal ruling which is reviewed by an

appellate court de novo. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App.

2006).

Darby plead guilty to all five charges against him. (R.R. vol. IV pg. 10-17).

Based upon those pleas, the trial court adjudicated Darby of all of these offenses.

(C.R. [6-15-42-CR] pg. 124;[6-15-43-CR] pg. 128);[6-15-44-CR] pg. 126;C.R. [6-

15-46-CR] pg. 123; [6-15-45-CR] pg. 130). However, the judgment for

aggravated robbery (of a senior) and two judgments for aggravated robbery (with a

deadly weapon) contain typographical errors and incorrectly reflected that Darby

pled not guilty to these offenses.

Such typographical errors are properly brought to the appellate court’s

attention in an appeal. See Gray v. State, 628 S.W.2d 228 (Tex. App.—Corpus

Christi 1982, pet. ref’d) (citing Luna v. State, 288 S.W. 465 (Tex. Crim. App.

1926) and Champion v. State, 281 S.W. 546 (Tex. Crim. App. 1926)). Therefore,

this issue is brought to this Court’s attention in this appeal.

This Court should modify the judgments as follows:

Judgment 2: Aggravated assault (of a senior) (C.R. [6-15-43-CR] pg.

56 128) Plea to Offense: Guilty

Judgment 3: Aggravated assault (with a deadly weapon) (C.R. [6-15-44-CR] pg. 126) Plea to Offense: Guilty

Judgment 4: Aggravated assault (with a deadly weapon) (C.R. [6-15-46-CR] pg. 123) Plea to Offense: Guilty

A harmless error analysis does not appear to be applicable in requests for

correction to judgments on appeal. See e.g. Gray v. State, 628 S.W.2d 228 (Tex.

App.—Corpus Christi 1982, pet. ref’d) (citing Luna v. State, 288 S.W. 465 (Tex.

Crim. App. 1926)). In Gray, the court addressed an incorrect date in a judgment

but did not conduct a harmless error analysis. Id.

57 PRAYER WHEREFORE, premises considered, Richard Darby, III respectfully

requests that this conviction be reversed and judgment rendered in his favor, that

the conviction be reversed and a new trial granted, that his judgments be amended,

and/or for such other and further relief to which Appellant may be entitled.

Respectfully Submitted,

Miller, James, Miller & Hornsby, L.L.P.

By:______________________________ Troy Hornsby Texas Bar Number 00790919

1725 Galleria Oaks Drive Texarkana, Texas 75503 troy.hornsby@gmail.com 903.794.2711, f. 903.792.1276

58 CERTIFICATE OF SERVICE

This is to certify that on June 4, 2015, a true and correct copy of the above and foregoing Appellant’s Brief has been forwarded by U.S. mail on all counsel of record and interested party listed below:

Appellant State's Attorney Richard Darby, III Samantha Oglesby Bowie County Correctional Center Bowie Cnty Dist. Attorney's Office 100 N. State Line Ave. 601 Main Street Bi-State Justice Building Texarkana, Texas 75501 Texarkana, Texas 75501 Defendant's Trial Attorney Trial Court Judge Will Williams Honorable Bobby Lockhart Bowie Co. Public Defender's Off. 102nd District Judge 424 W. Broad Street Bi-State Justice Building Texarkana, Texas 75501 100 North State Line Avenue Texarkana, Texas 75501

_________________________ Troy Hornsby

59 CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned counsel certifies that, exclusive of the exempted portions in Texas Rule of Appellate Procedure 9.4(i)(1), this brief contains 9,484 words (less than 15,000), based upon the word count of the WordPerfect program used to prepare the document.

_______________________________ Troy Hornsby