Stephon Jhacorey Washington v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 5, 2023
• Docket: 05-22-00712-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed June 5, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00712-CR

STEPHON JHACOREY WASHINGTON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-81659-2022

MEMORANDUM OPINION

Before Justices Pedersen, III, Garcia, and Kennedy Opinion by Justice Garcia

Appellant Stephon Jhacorey Washington appeals his conviction for

aggravated robbery. We affirm.

I. BACKGROUND

The State indicted appellant for committing aggravated robbery against

complainant Jenna Linch. Appellant pleaded not guilty, and the issue of guilt was

tried to a jury. The jury found appellant guilty. The issue of punishment was tried

without a jury, and the trial judge sentenced appellant to forty years in prison.

Appellant timely appealed. He raises three issues on appeal. II. ANALYSIS

A. Issue One: Was the evidence sufficient to support appellant’s conviction?

1. Standard of Review and Applicable Law

When we review the sufficiency of the evidence to support a conviction, we

uphold the conviction if any rational trier of fact could have found all essential

elements of the offense proved beyond a reasonable doubt. Edward v. State, 635

S.W.3d 649, 655 (Tex. Crim. App. 2021). In conducting our review, we consider the

evidence in the light most favorable to the verdict. Id. The jury is the sole judge of

the weight and credibility of the evidence, and it may choose to believe all, some, or

none of the evidence presented. Id. Moreover, the jury may draw reasonable

inferences from the evidence, and the evidence is sufficient to support a conviction

if the inferences necessary to establish guilt are reasonable based on the cumulative

force of all the evidence when considered in the light most favorable to the verdict.

Id. at 655–56. Circumstantial evidence is as probative as direct evidence in

establishing an actor’s guilt, and circumstantial evidence alone can be sufficient to

establish guilt. O’Reilly v. State, 501 S.W.3d 722, 726 (Tex. App.—Dallas 2016, no

pet.).

We measure the sufficiency of the evidence against the hypothetically correct

jury charge, defined by the statutory elements as modified by the charging

instrument. Edward, 635 S.W.3d at 656. Here, appellant was convicted of

aggravated robbery. See TEX. PENAL CODE ANN. § 29.03(a). A person commits

–2– aggravated robbery if he commits robbery and (1) causes serious bodily injury to

another or (2) uses or exhibits a deadly weapon. Id. A person commits robbery if,

during the course of committing a theft and with the intent to obtain or maintain

control of the property, he intentionally or knowingly threatens or places another in

fear of imminent bodily injury or death. Id. § 29.02(a)(2). A person commits theft if

he unlawfully appropriates property with the intent to deprive the owner of property.

Id. § 31.03(a).

The Penal Code defines “in the course of committing theft” as “conduct that

occurs in an attempt to commit, during the commission, or in immediate flight after

the attempt or commission of theft.” Id. § 29.01(1) (emphasis added). Thus, proof of

a completed theft is not required to establish a robbery. See id.; Wolfe v. State, 917

S.W.2d 270, 275 (Tex. Crim. App. 1996); Jones v. State, No. 05-18-00588-CR, 2019

WL 4071995, at *3 (Tex. App.—Dallas Aug. 29, 2019, pet. ref’d) (mem. op., not

designated for publication).

2. Application of the Law to the Facts

Appellant does not contest the sufficiency of the evidence to support the jury’s

finding that he was the person who interacted with complainant Linch on the

occasion in question or that he exhibited a deadly weapon during that interaction.

Rather, he argues that the evidence was insufficient to support the finding that he

had the intent to commit theft against her, and thus to support the finding of

attempted theft. We review the relevant evidence.

–3– Linch testified to the following facts. At around 5:00 a.m. on July 10, 2021,

she arrived at a park in McKinney, Texas, to go jogging. As she was jogging, she

noticed a person wearing a COVID mask and standing by a picnic table. A few

minutes after she passed that person, someone ran up behind her, put his arm around

her neck, and said, “I have a knife. Do what I say and I won’t hurt you.” The person

pressed a knife to Linch’s throat, dragged her into a women’s restroom, and told her

to take her shirt off. Linch refused. Then the person asked her if she had any money.

She said that she didn’t have any money. Then the person dropped a knife, and Linch

tried to get it. The next thing Linch knew, she and her assailant were outside the

restroom, and the assailant said, “[C]onsider yourself lucky. You got lucky this time.

Now go home. It’s not safe out here.” Linch then went back the way she had come

and called 911. She suffered injuries in the attack including cuts on her hands and

nose. The State relied on other evidence to prove that appellant was the person who

attacked Linch.

Appellant argues that the evidence is insufficient to support a finding that he

attempted to commit theft during the incident in question. He points out that there is

no evidence that he demanded any property from Linch and no evidence that he

actually took any of her property, such as her phone. He urges that the evidence that

he asked Linch whether she had any money is insufficient to show that he was

attempting to take her property.

–4– We reject appellant’s argument. The jury was entitled to believe Linch’s

testimony that appellant grabbed her, threatened her with a knife, dragged her into a

nearby restroom, and asked her if she had any money. From this evidence, the jury

could reasonably infer that appellant took Linch to a secluded place and asked her if

she had any money because he intended to take her money away from her. See

Romano v. State, 610 S.W.3d 30, 35 (Tex. Crim. App. 2020) (“By its nature, a

culpable mental state must generally be inferred from the circumstances.”) (footnote

omitted). Thus, the evidence is sufficient to support a finding that appellant

attempted to commit theft against Linch during the incident in question.

We overrule appellant’s first issue on appeal.

B. Issue Two: Did the trial judge commit reversible error by admitting certain evidence over appellant’s objections that the chain of custody had not been established?

In appellant’s second issue, he argues that the State failed to show a proper

chain of custody for certain items “that were offered as DNA evidence, including a

cap, clothes, and a knife.” Thus, he contends, the trial judge erred by admitting the

evidence over appellant’s objections based on the chain of custody.

We reject appellant’s argument.

We review a trial judge’s evidentiary rulings for abuse of discretion.

Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021).

Appellant does not explain exactly how the State failed to establish a chain of

custody for the items about which the State introduced DNA evidence—namely a

–5– baseball cap, a folding knife, and some women’s running shoes. Nor does he address

the harmless-error rule. See TEX. R. APP. P. 44.2. But even if we disregard these

failures, controlling authority from the Texas Court of Criminal Appeals compels us

to reject his argument:

Absent evidence of tampering or other fraud, . . . problems in the chain of custody do not affect the admissibility of the evidence. Instead, such problems affect the weight that the fact-finder should give the evidence, which may be brought out and argued by the parties.

Druery v. State, 225 S.W.3d 491, 503–04 (Tex. Crim. App. 2007) (footnotes

omitted). In this case, appellant does not suggest that the record contains any

evidence of tampering or fraud, and we see no such evidence. Accordingly,

appellant’s argument fails.

We overrule appellant’s second issue on appeal.

C. Issue Three: Did the trial judge commit reversible error by admitting evidence of the theft of a truck, a recording of the complainant’s 911 call, and a copy of the police report about the incident?

In his final issue, appellant argues that the trial judge committed harmful error

by admitting certain evidence. Our standard of review is abuse of discretion.

Inthalangsy, 634 S.W.3d at 754. We reject his arguments for the following reasons.

1. Evidence Regarding the Stolen Truck

First, appellant complains about evidence that a Toyota Tundra truck found

near the crime scene was a stolen vehicle. We begin by discussing the context in

which that evidence was admitted.

–6– Before trial, appellant made a motion in limine concerning any evidence that

appellant stole the truck in question. During arguments, the State argued that

evidence about the truck was admissible under Texas Rule of Evidence 404(b) for

identity purposes and also as res gestae evidence. Appellant responded that evidence

that the truck was stolen was inadmissible under Rule 403’s balancing test. The trial

judge ruled that he would allow the testimony and give extraneous-offense

instructions.

Police investigator Joy Wright testified that she was called to the park where

Linch had been attacked and found a silver Toyota Tundra in the parking lot with its

engine running, the driver’s side window halfway down, and items scattered on the

ground nearby. When the State asked Wright whether it was determined that the

truck was reported stolen, appellant objected and was granted permission to

approach the bench. The bench conference was not recorded. Then appellant

objected to any mention that the truck was stolen. The trial judge overruled the

objection but granted appellant’s request for a running objection. Then Wright was

asked whether the truck was confirmed stolen, and she answered, “Yes.” Wright

then testified that there were tissues outside the truck that appeared to have blood on

them and that there was a knife inside the truck on the console that appeared to have

a red substance on it. She also testified that she recovered latent fingerprints from

the outside of the driver’s door of the truck. Items found near the truck suggested

that it was owned by someone named Mark Petri.

–7– Next, the State called Mark Petri to testify. Before Petri testified, appellant

objected to any testimony that Petri owned the truck on “401 and 403 grounds” that

the testimony was irrelevant and that any probative value it had was outweighed by

its prejudicial effect. The trial judge overruled the objection and granted appellant’s

request for a running objection. The State then elicited Petri’s testimony that he

owned the truck described in Wright’s testimony and that the truck had been stolen

from his home the night of July 9, 2021.

We conclude that appellant did not preserve error with respect to Wright’s

testimony that the truck was stolen.

First, appellant’s motion in limine did not preserve error as to Wright’s

testimony. “A motion in limine . . . is a preliminary matter and normally preserves

nothing for appellate review.” Scott v. State, 392 S.W.3d 684, 686 (Tex. App.—

Dallas 2010, no pet.). To preserve error as to a matter addressed by a motion in

limine, the party must object when the matter is raised during trial. Id.

Second, appellant’s trial objection to Wright’s testimony did not preserve

error. One prerequisite for error preservation is that the record must show that the

complaint was raised in a timely objection that stated the grounds for the desired

ruling with sufficient specificity to make the trial judge aware of the complaint

unless the specific grounds were apparent from the context. See TEX. R. APP. P.

33.1(a)(1)(A). In this case, the record does not show the grounds for appellant’s trial

objection, and the grounds are not apparent from the context. Accordingly, error was

–8– not preserved.1 See id.; see also Prescott v. State, No. 06-20-00054-CR, 2020 WL

6600967, at *4 (Tex. App.—Texarkana Nov. 12, 2020, no pet.) (mem. op., not

designated for publication) (error not preserved because objection and its grounds

were apparently stated during off-the-record conference); Hullaby v. State, 911

S.W.2d 921, 926 (Tex. App.—Fort Worth 1995, pet. ref’d) (error not preserved

when counsel objected on the record but stated any grounds for the objection during

off-the-record bench conference).

With respect to Petri’s testimony that his truck was stolen, we construe

appellant’s brief to argue that the trial judge should have excluded the evidence

pursuant to both Rule 403 and Rule 404(b). However, appellant did not make a Rule

404 objection to Petri’s testimony that the truck was stolen, so that argument was

not preserved for appeal. See Jimenez v. State, No. 05-18-00848-CR, 2020 WL

5104964, at *3 (Tex. App.—Dallas Aug. 31, 2020, no pet.) (mem. op., not

designated for publication) (holding that Rule 404(b) objection was not preserved

by relevancy and Rule 403 objections). Accordingly, we limit our analysis to Rule

403.

Under Rule 403, the trial judge “may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

1 Even if appellant preserved error as to Wright’s testimony that the truck was stolen, we conclude in the alternative that the trial judge did not abuse its discretion by admitting that testimony for the same reasons we give below regarding Petri’s testimony. –9– prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” TEX. R. EVID. 403. We understand appellant to

argue that the evidence that the truck was stolen presented a danger of unfair

prejudice. Although evidence presented against a criminal defendant is designed to

be prejudicial, evidence is unfairly prejudicial if it has the capacity to lure the jury

into finding guilt on a ground other than proof specific to the offense charged.

Jimenez, 2020 WL 5104964, at *4. Factors relevant to a Rule 403 analysis include

(1) the probative value of the evidence; (2) the potential for the evidence to impress

the jury in some irrational, yet indelible, way; (3) the time needed to develop the

evidence; and (4) the proponent’s need for the evidence. Id. The trial judge has

substantial discretion in determining whether evidence’s probative value is

substantially outweighed by the danger of unfair prejudice. See id.

In this case, the trial judge could reasonably conclude that evidence that the

truck was stolen had some probative value and that the State had some need for that

evidence. Evidence found in and near the truck tended to connect the truck to the

attack on Linch, and proving that the truck had been stolen before the attack helped

the State prove that the truck’s owner was not the perpetrator of attack. The trial

judge could also reasonably conclude that the evidence was not particularly

inflammatory or likely to impress the jury in some irrational way, and it took little

time for the State to develop that evidence. Accordingly, we conclude that the trial

–10– judge did not abuse his discretion by admitting Petri’s testimony that the truck was

stolen.

2. The Police Report and Linch’s 911 Call

Under issue three, appellant also argues that the trial judge abused his

discretion by admitting (1) an audio recording of Linch’s 911 call, (2) a copy of the

police report about the incident, and (3) “various types of hearsay evidence.”

As to the audio recording of Linch’s 911 call, appellant argues only that

admission of the recording violated Rule 403 because Linch testified about the same

events at trial, the recording served no probative purpose, and the recording had an

extreme, unfairly prejudicial effect. But at trial, appellant objected to the 911

recording solely on the basis that the State had failed to authenticate it. Because

appellant’s appellate argument does not comport with his trial-court objection, his

appellate argument is forfeited. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012) (“The point of error on appeal must comport with the objection made at

trial.”).

With respect to the police report, appellant does not identify the report by

exhibit number, and his references to the reporter’s record do not include any

passages about a police report. The State responds that no police report was admitted

into evidence. Our review of the reporter’s record reveals that the State is correct.

Thus, appellant’s argument presents nothing for us to review.

–11– Finally, regarding the third category of evidence, appellant does not explain

exactly what “hearsay evidence” he is complaining about, and he supplies no

argument or authority to support his claim. Thus, the assertion is inadequately

briefed. See TEX. R. APP. P. 38.1(i) (appellant’s brief must contain “a clear and

concise argument for the contentions made, with appropriate citations to

authorities”); Lucio v. State, 353 S.W.3d 873, 877–78 (Tex. Crim. App. 2011)

(argument presented in a single sentence and without authority was inadequately

briefed).

3. Conclusion

We overrule appellant’s third issue on appeal.

III. DISPOSITION

We affirm the trial court’s judgment.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

Do Not Publish Tex. R. App. P. 47.2(b) 220712F.U05

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

STEPHON JHACOREY On Appeal from the 416th Judicial WASHINGTON, Appellant District Court, Collin County, Texas Trial Court Cause No. 416-81659- No. 05-22-00712-CR V. 2022. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Pedersen, III and Kennedy participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 5, 2023

–13–