Richardson, Cristal Paullett

• Court: Texas Supreme Court
• Decided: October 8, 2015
• Docket: PD-1172-15
• Status: Published

Opinion

PD-1172-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/8/2015 2:20:41 PM Accepted 10/8/2015 5:00:10 PM ABEL ACOSTA PD-1172-15 CLERK

IN THE TEXAS COURT OF CRIMINAL APPEALS _________________________________________________

CRISTAL PAULLETT RICHARDSON APPELLANT

vs.

THE STATE OF TEXAS APPELLEE _________________________________________________

FROM THE FIFTH COURT OF APPEALS CAUSE No. 05-14-00523-CR

APPEAL FROM CRIMINAL DISTRICT COURT NO. 6 OF DALLAS COUNTY, TEXAS, CAUSE NO. F-13-00479-X _________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________________________________

BRUCE ANTON SORRELS, UDASHEN & ANTON State Bar No. 01274700 2311 Cedar Springs, Suite 250 ba@sualaw.com Dallas, Texas 75201 214-468-8100 (office) BRETT ORDIWAY 214-468-8104 (fax) State Bar No. 24079086 bordiway@sualaw.com Counsel for Appellant

October 8, 2015 Ground for Review

The State in this case enhanced the indictment with previous felony convictions for driving while intoxicated and aggravated assault. But the DWI was only punishable as a felony because it, too, was enhanced by the aggravated assault. Did the State thus impermissibly use the same prior con- viction more than once in the same prosecution?

2 Table of Contents

! Ground for Review ...................................................................................... 2!

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

Index of Authorities .................................................................................... 4!

Identity of Parties and Counsel ................................................................. 5!

Statement Regarding Oral Argument ....................................................... 6!

Statement of the Case and Procedural History......................................... 7!

Argument................................................................................................... 11!

The State in this case enhanced the indictment with previous felony convictions for driving while intoxicated and aggravated assault. But the DWI was only punishable as a felony because it, too, was enhanced by the aggravated assault. The State thus impermissibly used the same prior conviction more than once in the same prosecution. ............................................................................................ 11!

I.! The indictment, the enhancements, and the objection......... 11!

II.! The court of appeals’s holding ............................................... 12!

III.! A distinction without difference is no distinction at all ....... 14!

Prayer ........................................................................................................ 17!

Certificate of Service ................................................................................. 18!

Certificate of Compliance ......................................................................... 18!

Appendix .................................................................................................... 19!

3 Index of Authorities

Cases

Ballard v. State, 149 S.W.3d 693 (Tex. App.—Austin 2004, pet. ref’d) ........ …………………………………………………………...14, 15, 16

Hernandez v. State, 929 S.W.2d 11 (Tex. Crim. App. 1996)..13, 14, 15, 16

McWilliams v. State, 782 S.W.2d 871 (Tex. Crim. App. 1990) ......... 13, 14

Ramirez v. State, 527 S.W.2d 542 (Tex. Crim. App. 1975) ............... 13, 14

Richardson v. State, No. 05-14-00523-CR, 2015 WL 4749181 (Tex. App.—Dallas 2015) .................................................................... 10, 14, 16

Wisdom v. State, 708 S.W.2d 840 (Tex. Crim. App. 1986) ...................... 13

Statutes

TEX. PEN. CODE § 12.35 ....................................................................... 11, 16

TEX. PEN. CODE § 12.42 ....................................................................... 11, 16

TEX. PEN. CODE § 12.46 ............................................................................. 12

TEX. PEN. CODE § 19.02 ............................................................................... 7

4 Identity of Parties and Counsel

For Appellant Cristal Paullett Richardson:

PAUL JOHNSON Trial counsel of record 900 Jackson Street, Suite 650 Dallas, Texas 75379

LORI ORDIWAY Original appellate counsel of record P.O. Box 793991 Dallas, Texas 75379

BRUCE ANTON BRETT ORDIWAY Substitute appellate counsel of record SORRELS, UDASHEN & ANTON 2311 Cedar Springs, Suite 250 Dallas, Texas 75201

For Appellee the State of Texas:

JOSH HEALY BRANDI MITCHELL Trial counsel of record DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE 133 N. Riverfront Blvd. Dallas, Texas 75207

ANNE B. WETHERHOLT Appellate counsel of record DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

Trial court:

CRIMINAL DISTRICT COURT NO. 6 OF DALLAS COUNTY, TEXAS THE HONORABLE JEANINE HOWARD PRESIDING

5 Statement Regarding Oral Argument

Oral argument is waived.

6 Statement of the Case and Procedural History

The complainant went out partying with his friends on April 27,

2012, driving around Dallas, drinking, and doing drugs. (RR4: 41-45, 78;

SX3). They saw Appellant at a convenience store and struck up a conver-

sation, and soon thereafter Appellant invited the group to continue the

party at her motel room. (RR4: 45-46). They stayed up all night drinking

and consuming a variety of drugs. (RR4: 47-50). Eventually, though, the

others left, and only the complainant and Appellant remained. (RR4: 51).

At approximately 5:30 p.m. on April 28, 2012, the motel security

guard discovered Appellant in the hallway naked and covered in blood.

(RR4: 93-94). The complainant was subsequently discovered dead in the

room, exhibiting over 100 stab wounds and castrated. (RR4: 106, 130-31;

RR5: 176-85, 193).

In Cause No. F13-00479-X (Dallas County), Appellant was indicted

on August 19, 2013, for the first-degree felony offense of murder. (CR: 8).

See TEX. PEN. CODE § 19.02(b)(1) & (2); TEX. PEN. CODE § 19.02(c). The

State enhanced the charge in the indictment with allegations that Appel-

lant had previously been convicted of two prior felony offenses. (CR: 8).

7 On April 7, 2014, the trial court conducted voir dire, and a jury was

selected. (RR3: 9-142). On April 8, 2014, the jury was sworn, Appellant

entered a plea of not guilty, and the jury trial commenced. (RR4: 16-17,

et seq.). The only issue at trial was why the complainant’s death oc-

curred—Appellant freely admitted to killing him. (RR4: 207; RR5: 142;

RR6: 41). To that end, Appellant explained that the complainant had be-

come enraged and raped her when her drug dealer had sold them baking

soda claimed to be cocaine. (RR6: 30-32, 35-37). She testified that when

she then threw the condom he had used in his face, the complainant at-

tacked her, and that she stabbed him purely in self- defense. (RR6: 37-

41). As to any “overkill” that followed, Appellant testified that she had

blacked out during the attack and did not remember anything that fol-

lowed. (RR6: 41-42).

In support of Appellant’s testimony, the security guard reported

that approximately 30 minutes before finding Appellant in the hallway

he had heard loud fighting and “banging against the walls of the motel

room to the extent that the door of the motel room [was] visibly shaking.”

(RR5: 146-47). Additionally, multiple police officers and medical profes-

sionals testified that Appellant was dazed and unresponsive. (RR4: 105,

8 108-09, 214, 223, 230; RR5: 9-10, 48-49). After hearing evidence and tes-

timony, though, on April 14, 2014, the jury found Appellant guilty of mur-

der as charged in the indictment. (CR: 825; RR7: 113).

On that date, the punishment hearing before the jury commenced,

and Appellant pleaded true to each of the two prior felony convictions

alleged for enhancement. (RR7: 115-16, et seq.). On April 15, 2014, after

hearing testimony and evidence, the jury found the allegations in the en-

hancement paragraphs of the indictment to be true and assessed punish-

ment at confinement for life. (CR: 841; RR8: 63). Appellant was sentenced

on that date. (CR: 833; RR8: 64-65).

Appellant timely filed a motion for new trial and written notice of

appeal, the former of which was overruled by operation of law. (CR: 828).

Before the Fifth Court of Appeals, Appellant argued that: (1) the evidence

was insufficient to support her conviction and to disprove her claim of

self-defense; (2) the trial court erred in conducting an in camera hearing

in her absence; and (3) her sentence was void because it was enhanced

using the same prior aggravated assault conviction twice. Richardson v.

State, No. 05-14-00523-CR, 2015 WL 4749181, *1 (Tex. App.—Dallas

2015). In a cross-point, the State asked the court to modify the judgment

9 to show that Appellant pled true to both enhancement paragraphs, both

of which the jury found were true. Id. In an opinion filed August 11, 2015,

the court concluded that: (1) the evidence was sufficient to support Rich-

ardson’s conviction over her claim of self-defense; (2) Richardson was not

harmed by the discussion of legal issues in her absence because it did not

substantially impair her defense or otherwise cause her harm; and (3)

the sentence was not void because the same enhancement was not used

twice in this proceeding. Id. The court modified the judgment to show

that Appellant pled true to both enhancement paragraphs and that the

jury found that the enhancement paragraphs were true. Id. As modified,

the court affirmed the trial court’s judgment. Id. Appellant did not file a

motion for rehearing.

10 Argument

The State in this case enhanced the indictment with previous felony convictions for driving while intoxicated and aggravated assault. But the DWI was only punishable as a felony because it, too, was enhanced by the aggravated assault. The State thus impermissibly used the same prior con- viction more than once in the same prosecution.

! ! !

I.! The indictment, the enhancements, and the objection

The murder indictment in this case included two enhancement par-

agraphs: the first alleging a driving while intoxicated with a child pas-

senger conviction, and the second alleging an aggravated assault convic-

tion. (CR: 8; SX150 & SX151). Since the former was only punishable as a

third-degree felony because it, too, was enhanced by the aggravated as-

sault conviction, during the punishment charge conference defense coun-

sel objected to the same prior aggravated assault conviction being used

in both enhancements. (RR8: 33-34); (CR: 8); see TEX. PEN. CODE §

12.35(c)(2)(B), 12.42(d). Defense counsel urged that the same essential

element should not be part of both enhancements and that the State

should have to make a choice as to which enhancement would use the

aggravated assault conviction. (RR8: 34).

11 The prosecutor responded that the State is “allowed to use prior

offenses for enhancement purposes repeatedly.... And that right stems

from Section 12.46 of the Texas Penal Code and [sic] which states that

the use of a conviction for enhancement purposes shall not preclude sub-

sequent use of such conviction for enhancement purposes.” (RR8: 35). The

trial court questioned whether this right included using the same prior

conviction twice in the same indictment—once to enhance the charged

offense, and once to enhance the other enhancement offense—but be-

cause neither party could provide specific authority, the trial court ulti-

mately overruled defense counsel’s objection. (RR8: 35-38).

II.! The court of appeals’s holding

On appeal to Dallas’s Fifth Court of Appeals, Appellant argued in

her final ground of error that the State improperly used her prior aggra-

vated assault conviction in both enhancements in order to punish her as

a habitual offender under Section 12.42(d) of the Texas Penal Code. (App.

Br. at 47-51). Section 12.46 of the Texas Penal Code, cited by the State at

trial, does not apply in this case. That section provides only that “[t]he

use of a conviction for enhancement purposes shall not preclude the sub-

sequent use of such conviction for enhancement purposes.” TEX. PEN.

12 CODE § 12.46 (emphasis added). It does not allow for the same conviction

to be used twice in indicting the same offense.

As to that issue, Appellant pointed to Hernandez v. State, 929

S.W.2d 11, 13 (Tex. Crim. App. 1996), in which this Court held that the

same conviction for robbery with a deadly weapon could not be used to

enhance the indicted state-jail felony offense to an aggravated state-jail

felony offense and also as an enhancement to that aggravated state-jail

felony offense under Section 12.42(d). This Court succinctly explained

that “[t]he State is not permitted to use the same prior conviction more

than once in the same prosecution.” Id. Likewise, in McWilliams v. State,

782 S.W.2d 871, 874-75 (Tex. Crim. App. 1990), this Court held that the

State was precluded from using a prior conviction to enhance the punish-

ment when that same prior conviction had been used to create the

charged offense of escape from a penal institution. And in Ramirez v.

State, 527 S.W.2d 542, 544 (Tex. Crim. App. 1975), this Court held that

the punishment could not be enhanced by the same prior conviction used

to create the charged offense of unlawful possession of a firearm by a

felon. See also Wisdom v. State, 708 S.W.2d 840, 845 (Tex. Crim. App.

1986).

13 Similarly, in the present case, where the same conviction was used

in the two enhancements in the same indictment so that Appellant could

be punished as a habitual offender, the premise is virtually identical. Be-

cause in this circumstance, too, the State should not be permitted to use

the same prior conviction twice in the same prosecution, Appellant urged

the court of appeals that the trial court erred. (Ap. Br. at 50-51) (citing

Hernandez, 929 S.W.2d at 13; McWilliams, 782 S.W.2d at 874-75;

Ramirez, 527 S.W.2d at 544).

The court of appeals was unmoved. Though the DWI was only avail-

able to use for enhancement purposes because of the aggravated assault

conviction, the court rejected Appellant’s argument because her sentence

here was ostensibly enhanced by two different convictions. Richardson v.

State, No. 05-14-00523-CR, 2015 WL 4749181, *10 (Tex. App.—Dallas

2015). It determined it “of no consequence” that “the DWI was previously

enhanced by the aggravated assault in another proceeding.” Id.

III.! A distinction without difference is no distinction at all

In Ballard v. State, the Austin Court of Appeals considered whether

a sexual assault conviction that gave rise to the duty to register as a sex

14 offender could also be used to enhance the punishment for failing to reg-

ister without running afoul of the prohibition against using the same con-

viction twice in the same prosecution. 149 S.W.3d 693, 696 (Tex. App.—

Austin 2004, pet. ref’d); see Hernandez, 929 S.W.2d at 13. In arguing that

it could, the State contended “It is the status of being required to register

as a sex offender, and not the underlying crime which creates the status,

which is an element of the offense of failing to comply with sex offender

registration.... Since appellant’s reportable conviction was not an essen-

tial element of the offense ..., it could be used to enhance the punishment

range for that offense....” Id. at 698.

The court of appeals swiftly rejected “the State’s proposed distinc-

tion between appellant’s status as a person required to register as a sex

offender and appellant’s previous conviction for a reportable offense” as

“a distinction without a difference”:

By definition, a person who must register is a person with a reportable conviction. Similarly, a convicted felon is a person with a felony conviction. In both instances, it is the previous conviction that gives the person the significant status. To prove that a person is required to register (has the status of being required to register) is to prove that the person has a reportable conviction, just as to prove that a person is a con- victed felon (has the status of convicted felon) is to prove that he has a previous felony conviction.

15 Id. Accordingly, the court held that Ballard’s conviction for a reportable

offense could not be used to enhance his punishment. Id. at 699.

The court of appeals’s conclusion in Appellant’s case stands in stark

contrast. Just as Ballard was only required to register because of his pre-

vious conviction, Appellant’s DWI conviction was only a felony because it

was enhanced by her aggravated assault conviction. But because the

words “aggravated assault” were not literally printed on the indictment

twice, the court determined it “of no consequence” that “the DWI was

previously enhanced by the aggravated assault in another proceeding.”

Richardson, 2015 WL 4749181 at *10.

Appellant urges this Court that, just as the distinction in Ballard

was one without difference, so, too, is the one in her case. Her previous

aggravated assault conviction both enhanced the indictment in this case

and allowed her previous DWI conviction to enhance the indictment. See

TEX. PEN. CODE §§ 12.35(c)(2)(B), 12.42(d). That it was not twice printed

on the indictment is no matter—it impermissibly pulled double duty. See

Hernandez, 929 S.W.2d at 13 (“The State is not permitted to use the same

prior conviction more than once in the same prosecution.”). The court of

16 appeals’s conclusion otherwise was thus erroneous. Accordingly, Appel-

lant respectfully requests this court to grant this petition so that it may

reverse the judgment of the court of appeals and remand this case to that

court to consider whether the error rendered Appellant’s sentence void

or, alternatively, was harmful.

Prayer

For the foregoing reasons, Appellant respectfully requests this

Court grant this petition for discretionary review.

Respectfully submitted,

/s/ Bruce Anton BRUCE ANTON Bar Card No. 01274700 ba@sualaw.com

/s/ Brett Ordiway BRETT ORDIWAY State Bar No. 24079086 bordiway@sualaw.com

SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road, Suite 250 Dallas, Texas 75201 (214)-468-8100 (office) (214)-468-8104 (fax)

Counsel for Appellant

17 Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant’s Petition for Discretionary Review was electroni- cally served to the Dallas County District Attorney’s Office and State Prosecuting Attorney on October 8, 2015.

/s/ Bruce Anton Bruce Anton

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies that this brief complies with:

1.! the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because this brief contains 2,177 words, excluding the parts of the brief ex- empted by TEX. R. APP. P. 9.4(i)(1).

2.! the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style requirements of TEX. R. APP. P. 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14-point Century.

18 APPENDIX

19 Affirmed as Modified and Opinion Filed August 11, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00523-CR

CRISTAL PAULLETT RICHARDSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F-1300479-X

MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Whitehill The parties do not dispute that Cristal Richardson stabbed Cedrick Owens over 130 times

and amputated his external genitalia after an all-night party in her motel room involving PCP,

cocaine, marijuana, and other drugs. The next afternoon, a motel security guard saw Richardson

run out of her room naked, dazed, and covered in blood. Despite the absence of defensive

wounds on Owens, Richardson claimed she acted in self-defense and testified at trial.

Despite Richardson’s testimony, the jury convicted her of murder. She pled true to two

prior felony convictions alleged for enhancement. The jury found that the enhancement

allegations were true, and sentenced her to life imprisonment.

In three appellate issues, Richardson asserts that (i) the evidence is insufficient to support

her conviction and to disprove her claim of self-defense, (ii) the trial court erred in conducting an in camera hearing in her absence, and (iii) her sentence is void because it was enhanced using the

same prior aggravated assault conviction twice.

In a cross-point, the State asks us to modify the judgment to show that Richardson pled

true to both enhancement paragraphs, both of which the jury found were true.

We conclude that (i) the evidence is sufficient to support Richardson’s conviction over

her claim of self-defense, (ii) Richardson was not harmed by the discussion of legal issues in her

absence because it did not substantially impair her defense or otherwise cause her harm, and (iii)

the sentence is not void because the same enhancement was not used twice in this proceeding.

Accordingly, we modify the judgment to show that Richardson pled true to both enhancement

paragraphs and that the jury found that the enhancement paragraphs were true. As modified, we

affirm the trial court’s judgment.

I. BACKGROUND

On the evening of April 27, 2012, Owens and his friends Deidre Lyons, Robin

Summerfield, and “Killer Bee” were driving around, drinking and doing drugs. They met

Richardson for the first time at a convenience store in South Dallas.

Richardson said it was her birthday, and invited the group to continue the party in her

motel room. Between 1:00 a.m. and 2:00 a.m., Owens and his friends accompanied Richardson

to her room where the group spent the evening talking, drinking, and using marijuana, cocaine,

and PCP. Four or five times during the night, Lyons, Richardson, and Owens stepped out to get

more drugs. At some point, they all took Summerfield and Killer Bee home. Lyons,

Richardson, and Owens returned to the motel, and Lyons left at 4:00 or 5:00 a.m.

Sometime after 4:00 p.m. the following day, a motel security guard walked past

Richardson’s room on his way to the vending machine and heard two people “arguing or

–2– fighting.” He heard “little smacks,” that were “no louder than hand claps,” and then heard a

male voice say, “You got me.” A female voice responded, “You got me too.”1

About thirty minutes later, as the security guard was on his way to get more snacks, he

saw Richardson emerge from her room “buck naked,” and covered in blood from head to toe.

When the guard asked Richardson if she was all right, she looked up, stretched her arms out, and

“let out . . . a shriek or a shrill.” He got Richardson a towel and told the front desk to call the

police.

Dallas Police Officer Ryan Willis and his partner responded to the call and found

Richardson in a stairwell, wrapped in a blanket, with some minor lacerations. When Willis

asked what happened, Richardson was non-responsive.

The security guard opened the door to Richardson’s room, and Willis saw “a pile of

money that was covered in blood on the floor.” Owens was “slumped over on the floor . . . cut

up pretty bad.” Willis secured the crime scene and contacted his superior.

That Richardson killed Owens was never disputed. Richardson, however, testified in her

defense, and in summary, said that she stabbed Owens after he attacked and raped her. The

State, on the other hand, presented evidence that Richardson killed Owens in a violent, bloody

attack involving genital mutilation and over 130 stab wounds all over his body that were

consistent with her attacking him in a fit of rage while he was defenseless. The State also points

to numerous inconsistencies in her testimony, with her prior statements and the physical

evidence. A jury convicted her of murder despite her claim that she acted in self-defense.

1 On cross-examination, defense counsel questioned the guard’s recollection and asked about a detective’s report stating the guard heard loud fighting and “banging against the walls to the extent that the door of the motel room [was] visibly shaking.” (5 RR 146-47, SX 158, 4 RR 98-100).

–3– II. ANALYSIS

A. Richardson’s First Issue: Was the evidence sufficient to support Richardson’s conviction over her self-defense claim?

1. Standard of Review and Applicable Standards.

Richardson’s first issue argues that the evidence shows that Owens sexually assaulted,

attacked, and stabbed her, so she stabbed him repeatedly to protect herself. According to

Richardson, no rational fact-finder could have found against her on her claim of self-defense.

Under the penal code, an individual is guilty of the crime of murder if she “intentionally

or knowingly causes the death of an individual.” TEX. PENAL CODE ANN. § 19.02(b)(1) (West

2011). However, the code also states that an individual “is justified in using deadly force against

another . . . if the actor would be justified in using force against the other under Section 9.31

[addressing self-defense]” and “when and to the degree the actor reasonably believes the deadly

force is immediately necessary . . . to protect the actor against the other’s use or attempted use of

unlawful deadly force.” Id. § 9.32(a).2 “Deadly force” means “force that is intended or known

by the actor to cause, or in the manner of its use or intended use is capable of causing, death or

serious bodily injury.” Id. § 9.01(3).

Self-defense is a fact issue for the jury to determine, and if the jury enters a guilty verdict,

it implicitly rejected the self-defense theory. Saxton v. State, 804 S.W.2d 910, 913–14 (Tex.

Crim. App. 1991). For self-defense claims, the defendant has the burden of producing some

evidence to support the claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). If

the defendant produces some evidence, the State has “the burden of persuasion to disprove the

raised defense.” Id. But this does not require the production of any additional evidence; instead,

“it requires only that the State prove its case beyond a reasonable doubt.” Id. 2 Section 9.31 (Self-Defense) provides that “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” See TEX. PENAL CODE ANN. § 9.31 (West 2011).

–4– Therefore, in reviewing a sufficiency challenge regarding a self-defense claim, we do not

look to whether the State presented evidence that refuted self-defense. Rather, we determine,

after viewing all the evidence in the light most favorable to the verdict, whether any rational trier

of fact (1) would have found the essential elements of the offense beyond a reasonable doubt,

and (2) would have found against the appellant on the self-defense issue beyond a reasonable

doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Our duty is to ensure that

the evidence presented supports the jury’s verdict and the State has presented a legally sufficient

case of the offense charged. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).

2. Richardson’s Arguments.

In support of her argument that the evidence is insufficient to support her conviction,

Richardson disputes the inferences to be drawn from the State’s evidence, and relies on (i) the

medical examiner’s testimony that the wounds could have been inflicted in a few minutes or less

and were likely not inflicted in a calm fashion, (ii) her statement to the news reporter that she

attacked Owens because he attacked her first, (iii) the detective’s report which says that the

guard heard loud fighting in her motel room, and (iv) the fact that she was the “major

contributor” of DNA on the knife handle.

She also relies on her own testimony and asserts that “the State presented no evidence

that contradicted or disproved” her account of events. We disagree. The jury was not required

to believe Richardson, even if her testimony was uncontroverted. See Mattias v. State, 731

S.W.2d 936, 940 (Tex. Crim. App. 1987). Instead, the jury is to determine the credibility of the

witnesses and the weight to be given their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012)

Despite the absence of direct evidence to contradict Richardson’s version of events, there

was evidence that could reasonably cast doubt on her testimony. Indeed, the jury could

–5– reasonably find that Richardson was not credible or that her self-defense claim was inconsistent

with the other evidence.

a. The State’s Evidence.

Given Richardson’s self-defense arguments, we discuss in detail the testimony and

physical evidence bearing on the credibility of her testimony and who was the aggressor in this

case.

The State presented evidence of the following facts:

Richardson was taken to Parkland Hospital after the police found her in the stairwell.

The hospital records show that she denied using drugs or alcohol, but would not tell the staff

what happened. She told the staff that her boyfriend bought her a night at a motel for her

birthday. She had room service breakfast and lunch the next day, and did not remember anything

after that.

Officer Dameon Sansom was charged with making sure Richardson did not leave the

hospital. Sansom reported that Richardson was incoherent, did not respond to questions from

medical staff, and appeared to be either drunk or high. He took her for a sexual assault exam,

and Richardson asked why she was there. When she was told she was being charged with

murder, she asked “for who?” and started yelling incoherently.

Homicide detective Brian Tabor saw Richardson in the hospital. In the fifteen to twenty

minutes he spent with her, she was unresponsive, very high on drugs, and had a lot of dried

blood on her body. She did not acknowledge anything going on around her, and was busy

picking what Tabor believed was pubic hair out of the dried blood on her hands.

Medical records show that Richardson had cocaine, opiates, cannabinoid, phencyclidine

(PCP), and “benzodiaphragm” [sic] in her system.

–6– During the sexual assault exam, Richardson told the doctor she did not remember

anything after she showered and ate that morning until the officers found her naked in the

stairwell. Also during the exam, Richardson said that she had sexual intercourse on April 27 at

10:00 p.m. The doctor’s report indicated Richardson’s assailant was unknown. Richardson was

not sure if a penis or other object penetrated her vagina, but she felt like she was violated in the

vaginal area. Richardson did not know if her assailant wore a condom. Richardson had some

small cuts and scratches and reported that her assailant had been stabbed and had cuts.

Another Dallas police officer collected DNA evidence and took photographs. Richardson

had cuts on her fingers and there appeared to be pubic hair by her hand. There was also a cut on

the back of her right thigh and a cut on her forearm.

Detective David Andree processed the crime scene. When he opened the door to the

room, he saw a large amount of money with blood on it, and the room was in disarray. There

was clothing lying around, a used condom, food scattered around, and a couple of baggies with a

white substance in them. There was blood on most of the walls.

Owens was on the floor, just past the bathroom. He had several stab wounds, and his

penis, testicles, and part of his neck had been removed from his body.

Some of the evidence Andree collected included: (i) $1,961.51 cash, (ii) two cell phones,

(iii) Owens’s ID card, (iv) a white muscle shirt with cuts throughout the shirt in the front and

back, (v) a pair of capri pants with a hole in the back leg, (vi) a pink tank top with what appeared

to be blood on it, (vii) a condom wrapper and (viii) a “black-handled, straight-bladed folding

knife with a three inch blade with a belt clip.”

Andree believed that the blood smears on the wall were consistent with some type of

struggle, and the “spatter” on the wall could have been consistent with somebody using a knife

“over 130 times up and down stabbing.”

–7– Owens had no defensive wounds to his hands. Andree explained that defensive wounds

occur when someone is coming at you with a knife and you put your hands up trying to make

him stop. When someone has no defensive wounds, it is possible that he was passed out or did

not see the attack coming, or that one of the strikes incapacitated the person from the beginning.

Andree opined that it is not possible to keep your hands by your side while knowingly being

stabbed.

Andree also said that the crime scene had been altered. Owens’s shirt had multiple

“defects” in it, but had been taken off of his body and was on the other side of the room.

Someone had removed Owens’s pants. As evidenced by the blood pooling patterns on the floor,

Owens’s body had also been moved.

Andree explained several photographs of the crime scene, including a photograph of

Owens with his testicles behind him, a picture of Owens’s hands, which showed no defensive

wounds, a close-up of the stab wounds on Owens’s neck, and a castrated penis in a purple flip-

flop.

The medical examiner who performed the autopsy on Owens said that Owens had several

substances in his body—cocaine and metabolites of cocaine, marijuana, phencyclidine (PCP),

and hydrocodone. The body was very bloody and had approximately 130 stab and incised

wounds on almost every surface. These wounds included numerous “significant deep” incised

neck wounds, and the medical examiner explained that, unlike stab wounds, incised wounds are

cuts that are usually longer rather than deeper. These were sharp force injuries made by a sharp

implement like a knife. The wounds went through the skin, the muscles, and the soft tissue of

the throat, the larynx, the trachea, and several large vessels on the right side of the neck. These

wounds would have killed Owens.

–8– The medical examiner described a cluster of thirty-three stab and incised wounds that

went from the back side of the head to the upper back that were all lined up and “very parallel in

nature.” She also gave a detailed description of numerous other stab wounds to the neck and

face area, chest, abdomen, trunk, back, legs, arm shoulder, buttocks, and thighs. Two of these

wounds could have been fatal. There were also numerous superficial incise wounds that were

consistent with a knife going across a body part.

Owens’s external male genitalia had been amputated, including the penile shaft, the

scrotal sac, both testicles, and some of the soft tissues and vasculature that leads back up into the

body cavity. The medical examiner explained that because the scrotal skin is tough, it would not

be easy to amputate and would require some effort and a multitude of cuts. The person who cut

through this tough tissue could likely have cuts on his/her own hands. The medical examiner

said that while there is no way to be certain that the castration occurred before death, it is

unlikely to happen unless the victim is completely unconscious.

Owens died from multiple sharp force injuries, and had several stab wounds that would

have been lethal. The knife that was recovered from the scene and introduced into evidence is a

deadly weapon and the type of sharp object that could have caused all of Owens’s injuries.

According to the medical examiner, sexual mutilation typically occurs in intimate

relationships and “sometimes in an assaultive type relationship.” Owens’s wounds could have

been inflicted in a just a few minutes or even less, “depending upon the speed in which [the

assailant] is doing it and rage in which [the assailant] is acting.”

A forensic biologist performed a DNA analysis on the condom and the knife.

Richardson’s DNA profile matched one of two stains on the condom. Another stain showed a

DNA mixture from at least two individuals—Owens, and a trace amount from Richardson. The

sperm cells matched Owens’s DNA profile.

–9– There was “handler DNA” on the knife, which is DNA left by touching the handle of an

item. This sample had a partial DNA profile that matched Richardson’s profile. A blood stain

on the tip of the knife had a low level of DNA that was a mixture of two individuals. The DNA

for the major contributor matched Richardson’s, and the DNA for the minor contributor matched

Owens’s. A final sample from the back end of the handle on the knife matched Richardson’s

profile.

Detective Tommy Raley interviewed Richardson after her arrest. Initially, Richardson

would not talk to him, but she later said that Owens tried to kill her. When Richardson said, in

effect, that someone told her about the crime she committed, Raley talked to other officers

involved in the case and learned that the officer who took Richardson to jail told her what she

had done. Richardson did not tell Raley anything about buying bad drugs and angering Owens,

rape, or physical assault.

Raley also learned that Richardson had three prior claims of sexual assault, but

Richardson did not check on the cases, give any further statements, or follow through after her

initial reports. In one case, she did not return an officer’s phone call to follow-up on her

complaint.

b. Richardson’s Testimony.

Richardson provided the following testimony:

Richardson admitted that she uses drugs frequently, and that she “spent all night getting

high” the night Owens was killed. Before meeting Owens and his friends, she had taken half of a

Xanax pill and smoked PCP with a friend in her motel room.

Owens’s friend Lyons approached her about partying. She decided it would be safe

because there were two women, so she invited Owens and his friends to her motel room to get

high. They smoked PCP, did powder cocaine, smoked marijuana, and consumed alcohol. They

–10– did not realize it was morning until the cleaning people knocked on the door. She continued

using drugs until about 10:00 a.m.

Eventually, she was alone with Owens. They were both high, but were just “talking and

chilling.” Owens said he wanted some more cocaine, so Richardson called an acquaintance. The

substance delivered by the acquaintance, however, was baking powder, not cocaine, and Owens

became angry. Owens told Richardson, “I’m fixin to go.” He was standing at the window like

he was getting ready to leave, and then he turned around and raped her.

Owens grabbed her neck and they struggled a bit, but there was nothing she could do.

She claimed Owens “had to have” ripped her clothes off, and was holding her down while doing

so. Owens did not take his pants off, and when he finished, she still had her shirt on. Richardson

did not see Owens put a condom on. But when he finished raping her, he took a condom off,

threw it on the floor and said, “You stupid ass bitch, that’s for my money loss.” Richardson put

her pants back on and grabbed the condom and threw it in Owens’s face. Owens responded by

punching her in the face. Richardson said that her nose started bleeding, but admitted she was

not treated for this injury at the hospital.

Richardson tried to run out of the room, but Owens pushed the door closed, put the chain

on, and “started beating [her] real bad.” Owens beat her “in the head,” and she tried to ball up to

protect herself. Owens began kicking her back, and kicked her in the vagina.

At some point, Owens stopped and was “cussing her out.” Richardson jumped up, ran to

the other side of the room, and grabbed the knife Owens had used to snort cocaine. Owens

grabbed her by the hair, took the knife away, said he would kill her, and beat her some more.

She tried to run for the door, but felt something hurt her leg. She later found out this was a deep

cut. The pair kept fighting and Richardson thought Owens was going to beat her to death. She

felt like her life was in danger so she gained control of the knife and stabbed Owens. Richardson

–11– did not know how many times she stabbed Owens, but every time he came towards her, she

would stab him.

Richardson did not remember any of the “overkill,” nor did she remember how she ended

up naked in the hall. She said she was sorry about what happened, but she was scared for her

life, and felt like “a rat in a room full of snakes.”

When an officer told Richardson that she “cut that man’s junk off,” Richardson told her,

“Bitch, you don’t know what he did to me.” Richardson said she did not recall speaking to the

detective because she had blacked out. But she did not know when she blacked out. Although

she remembered Owens beating her, she did not tell the doctors about it because she was in

shock. She also claimed she was no longer high by the time the struggle with Owens occurred.

After she was arrested, Richardson spoke with a news reporter, and her videotaped

interview was played for the jury. When she testified at trial, Richardson did not recall telling

the reporter that Owens said, “Please don’t kill me.” She also told the reporter that she attacked

Owens because he attacked her. She did not remember telling a friend that she had “probably”

been raped.

Although Richardson claimed that a friend got the motel room for her as a birthday

present, the State introduced evidence that Richardson booked and paid for her room.

Richardson admitted that she had been previously convicted of DWI, misdemeanor theft,

credit card abuse, and aggravated assault with a deadly weapon. The aggravated assault case

involved her stabbing someone. By stipulation, the jury was also informed of Richardson’s

convictions for burglary of a building and drug possession.

c. Analysis of the Evidence.

There was ample conflicting evidence, and a jury could reasonably disbelieve

Richardson’s version of what happened. For example, Richardson stabbed Owens with a

–12– knife—over 130 times. He was stabbed all over his body, and several of the wounds could have

been fatal. Richardson admitted to stabbing Owens, she just could not recall the number of times

she stabbed him. Furthermore, one of Richardson’s prior convictions involved stabbing someone

with a knife. From this evidence, the jury could have concluded that Richardson had the

knowledge and ability to use a knife to great effect.

Richardson, Owens, and their companions had consumed a variety of illegal drugs

throughout the night, and when she was taken to the hospital the following evening, Richardson

still appeared to be high. Hospital records confirmed that illegal substances were present in

Richardson’s blood. The jury could have believed that the drugs adversely affected her behavior,

her ability to recall events, and her credibility.

Richardson gave varying accounts of the events at different times. She claimed that she

did not recall what happened until an officer told her what she had done. She told a reporter that

she stabbed Owens because he attacked her first, but did not remember him pleading for his life.

She did not tell the motel security guard, the police, or hospital personnel that she had been raped

and beaten, but recalled these events in very specific detail later.

The evidence showed that Richardson claimed to have been sexually assaulted on three

prior occasions, but did nothing to follow up after lodging her initial complaint. The jury could

have concluded from this evidence that her sexual assault claims lack credibility.

Richardson claimed she did not remember removing Owens’s genitalia. There was

evidence, however, that Owens’s shirt was removed after he was stabbed and his body had been

moved, suggesting that Richardson may have been sufficiently aware of her actions to alter the

crime scene. Moreover, the evidence showed that this type of mutilation would have been

difficult to do even had Owens been incapacitated when it happened. The jury could have

reasonably seen this evidence as being contrary to self-defense.

–13– Despite the number of wounds and the degree of mutilation of his body, Owens had no

wounds indicating that he tried to defend himself. The DNA on the handle of the knife matched

Richardson’s DNA profile. From this evidence, the jury could rationally conclude that

Richardson was the aggressor and had incapacitated Owens so that he was unable to fend off her

attack.

The cuts on Richardson’s hands were consistent with the stabbing and the mutilation of

Owens’s body. And even if the jury believed that Richardson had been attacked, they could

rationally have concluded that the number of stab wounds and the mutilation of the body

exceeded any deadly force that may have been reasonably necessary under the circumstances.

On this record, we conclude that a rational trier of fact could have found Richardson

guilty of murder beyond a reasonable doubt by choosing to believe the evidence favoring that

she intentionally or knowingly caused Owens death, and by choosing to disbelieve the evidence

favoring that she was justified in using force against Owens to the degree she reasonably

believed immediately necessary to protect himself against Owens’s use or attempted use of

unlawful force. See Smith v. State, 352 S.W.3d 55, 63 (Tex. App.—Fort Worth 2011, no pet.)

(jury’s prerogative to resolve conflicting evidence in favor of assault conviction and not in favor

of self-defense); see also Denman v. State, 193 S.W.3d 129, 132 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d) (“Because the jury, by finding appellant guilty, implicitly rejected his

self-defense theory, it necessarily chose not to believe the testimony concerning such.”).

Accordingly, we overrule Richardson’s first issue.

B. Richardson’s Second Issue: Was it reversible error to conduct an in camera hearing in Richardson’s absence?

1. The Issue.

Richardson’s second issue argues that the trial court erred in conducting a Rule 403

hearing in chambers without her present in violation of article 33.03 of the code of criminal –14– procedure and the Sixth Amendment’s Confrontation Clause. See TEX. CODE CRIM. PROC. ANN.

art. 33.03 (West 2006); U.S. CONST. amend. VI. Although she acknowledges that defense

counsel did not object to her absence from the hearing, she insists that the trial judge had an

independent duty to implement her rights. We reject her arguments because even if the trial

court erred, Richardson was not harmed. The hearing had no reasonable relationship to

Richardson’s opportunity to defend and any error was harmless beyond a reasonable doubt.

2. The Hearing.

The State wanted to admit evidence of Richardson’s extraneous acts while in jail and a

telephone call she made from jail. The State also wanted to elicit evidence that Richardson was

the aggressor in her prior aggravated assault case. The trial judge granted a motion in limine and

said she would conduct a hearing when the time came.

During Richardson’s direct examination, the jury was given a break and the parties

continued the discussion about extraneous offenses on the record and in the courtroom. The trial

judge said she wanted to have a Rule 403 hearing outside the presence of the jury to listen to

Richardson’s jail call and hear any other evidence “on the issue of first aggressor.”

The attorneys and the trial judge then moved to the judge’s chambers, and the court

conducted the hearing without Richardson present. When counsel and the judge returned to the

courtroom, the judge said:

I am ready to make my ruling. I want the record to reflect for about the last hour I have met with the attorneys in chambers. We have had a 403 hearing that is not on the record, but it was done in chambers at their request, and discussed several issues. And I am going to rule, number one, with regards to the prior conviction, the ag assault deadly weapon from 2004, that you can ask her if that was an ag assault deadly weapon . . . Based on rule 403 analysis I am not going to allow the phone call from the jail. I find that more prejudicial than probative, and I am not going to allow any questioning about the other two incidents that we discussed from the jail.

–15– 3. Standard of Review and Applicable Standards.

The code of criminal procedure states that a defendant must be personally present at the

trial, with the exception of when the defendant voluntarily absents himself from trial after

pleading to the indictment or the jury has been selected. See TEX. CODE CRIM. PROC. ANN. art.

33.03 (West 2006). The Fourteenth Amendment of the Constitution also requires the

defendant’s presence at proceedings against him “to the extent that a fair and just hearing would

be thwarted by his absence and to that extent only.” Adanandus v. State, 866 S.W.2d 210, 219

(Tex. Crim. App. 1993) (quoting Snyder v. Massachusetts, 291 U.S. 97 (1934)). Where the

presence of a defendant does not bear a “reasonably substantial relationship to the opportunity to

defend,” no harm results from his absence from the proceedings against him. Id. To assess harm,

we must address whether the hearing bore a substantial relationship to Richardson’s opportunity

to defend herself in addition to harm under the rules of appellate procedure. See Adanandus, 806

S.W.2d at 220; TEX. R. APP. P. 44.2 (a).

4. Application to this Case.

Here, even if the trial court erred in conducting the hearing in Richardson’s absence, she

was not harmed. The hearing involved the admission of evidence, which is a question of law.

See Adams v. State, No. 13-09-00334-CR, 2010 WL 2783745, at *14 (Tex. App.—Corpus

Christi July 15, 2010, pet. ref’d) (not designated for publication) (discussing conference on the

charge and the admission of evidence as legal issues for which defendant’s presence was not

required). As the Texas Court of Criminal Appeals has observed, “It is difficult to imagine a

trial fraught with complex legal problems when there will not be occasions where counsel and

the court will confer on questions of law at the bench or in chambers outside the presence of the

defendant.” Mares v. State, 571 S.W.2d 303, 307 (Tex. Crim. App. [Panel op.] 1978).

–16– Richardson was represented by counsel, and there was no evidence that she had relevant

information not available to the trial court or the attorneys on the matters addressed. Even had

Richardson been present, the legal issues for the trial court to decide would not have changed.

Therefore, we cannot conclude that the hearing bore a reasonably substantial relationship to

Richardson’s opportunity to defend.

Similarly, the record does not show that Richardson was harmed under the applicable rule

of appellate procedure. See TEX. R. APP. P. 44.2(a). Her absence from the hearing on legal

issues could not have contributed to her conviction. There is no indication that her presence at

the hearing would have changed any of the legal arguments or furthered her defense at trial.

Because there is no evidence that harm occurred, any error that may have occurred does not

constitute reversible error. See Routier v. State, 112 S.W.3d 554, 577 (Tex. Crim. App. 2003).

For these reasons, we overrule Richardson’s second issue.

C. Richardson’s Third Issue: Was Richardson’s 2004 aggravated assault conviction improperly used to enhance her conviction in this case?

Richardson’s third issue argues that because her 2004 aggravated assault conviction was

used to enhance her 2010 DWI conviction, that aggravated assault conviction could not be used

to enhance this conviction for murder, and therefore the sentence is void because it is outside the

range of punishment.

The first enhancement paragraph in the murder indictment alleges that Richardson:

. . . was finally convicted of the felony offense of DRIVING WHILE INTOXICATED WITH A CHILD, in the 283RD JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F-0932205, on the 10TH day of NOVEMBER, 2010.

The second enhancement paragraph in the murder indictment alleges that prior to the

commission of the offense described in the first enhancement paragraph, Richardson:

. . . was finally convicted of the felony offense of AGGRAVATED ASSAULT WITH A DEADLY WEAPON, in the CRIMINAL DISTRICT COURT NO. 1 of

–17– DALLAS County, Texas, in Cause Number F-0452255, on the 23RD day of SEPTEMBER, 2004.3

Richardson cites several cases in support of her argument that the prior aggravated

assault conviction cannot be used to enhance her punishment for murder because “the same

conviction was used in two enhancements in the same indictment.” See McWilliams v. State, 782

S.W.2d 871, 875 (Tex. Crim. App. 1990); Wisdom v. State, 708 S.W.2d 840, 845 (Tex. Crim.

App. 1986); Ramirez v. State, 527 S.W.2d 542, 543–44 (Tex. Crim. App. 1975). These cases,

however, generally hold that a prior conviction cannot be used as an element of an offense and

also to enhance punishment for that same offense. They do not address the situation here where

a prior aggravated assault conviction and a prior DWI conviction were used to enhance

punishment.

Similarly, Richardson’s reliance on Hernandez v. State, 929 S.W.2d 11, 13 (Tex. Crim.

App. 1996) is also misplaced. In that case, the State used a prior robbery conviction to enhance

the charged state jail felony to a third degree felony, and in the same prosecution, also used the

prior robbery conviction to enhance to a third degree felony under the habitual offender section

of the penal code. Id. at 12–13. The Texas Court of Criminal Appeals reversed, citing

McWilliams, Ramirez, and Wisdom, and held the sentence was improperly enhanced because the

State cannot use the same prior conviction more than once in the same prosecution. Id. at 13.

Section 12.46 of the penal code, however, provides that the use of a prior conviction to

enhance a sentence does not preclude the subsequent use of the same prior conviction to enhance

a different sentence. See TEX. PENAL CODE ANN. § 12.46 (West 2011); Hall v. State, Nos. 05-03-

00949-CR, 05-03-00950-CR, 2005 WL 1231661, at *1 (Tex. App.—Dallas May 25, 2005, no

pet.) (not designated for publication). The sentence here was enhanced by the prior aggravated

3 The indictment in the DWI case alleged, “prior to the commission of the offense or offenses set out above, the defendant was finally convicted of the felony offense of AGGRAVATED ASSAULT WITH A DEADLY WEAPON, in the CRIMINAL DISTRICT COURT NO. I of DALLAS County, Texas, in Cause Number F04-522-55, on the 23RD day of SEPTEMBER, 2004.”

–18– assault conviction and the prior DWI. That the DWI was previously enhanced by the aggravated

assault in another proceeding is of no consequence. Richardson’s murder sentence was not

improperly enhanced and is therefore not void.

Accordingly, we resolve Richardson’s third issue against her.

D. The State’s Cross-Point: Should the judgment be modified?

The State asks that we modify the judgment to show that Richardson pled true to both

enhancement paragraphs and that the jury found the enhancement paragraphs were true. An

appellate court can modify incorrect judgments when the evidence necessary to correct a

judgment appears in the record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas

1991, writ ref’d).

Here, we have the necessary evidence to correct the judgment. Although the judgment

says “N/A” in the space provided for Richardson’s pleas to the enhancement paragraphs and also

in the space for the findings on the enhancement paragraphs, Richardson admitted to these prior

convictions when she testified. Richardson also pled true to both enhancement allegations at the

punishment stage. The jury found that each of the enhancement allegations were true.

Therefore, we modify the judgment to reflect that Richardson pled true to both

enhancement paragraphs and the jury found each of these paragraphs were true. As modified,

we affirm the trial court’s judgment.

/Bill Whitehill/ Do Not Publish BILL WHITEHILL TEX. R. APP. P. 47 JUSTICE 140523F.U05

–19– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CRISTAL PAULLETT RICHARDSON, On Appeal from the Criminal District Court Appellant No. 6, Dallas County, Texas Trial Court Cause No. F-1300479-X. No. 05-14-00523-CR V. Opinion delivered by Justice Whitehill. Justices Francis and Lang-Miers THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we modify the judgment to show that Richardson pled true to the two enhancement paragraphs and the jury found the enhancement paragraphs true. As Modified, the judgment of the trial court is AFFIRMED.

Judgment entered August 11, 2015.

–20–