AFFIRMED and Opinion Filed November 22, 2023
In The Court of Appeals Fifth District of Texas at Dallas
No. 05-22-00190-CR No. 05-22-00191-CR No. 05-22-00192-CR
STEVE ERIC ROBERSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-2051158-Q, F-2051159-Q, and F-2051160-Q
MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Miskel Opinion by Justice Pedersen, III A jury found appellant guilty of two charges of aggravated assault. The trial
court sentenced appellant to sixty years’ confinement for one offense and twenty
years’ confinement for the other. Additionally, the jury found appellant guilty of
causing serious bodily injury to an elderly person. The trial court assessed punishment
at sixty years’ confinement therefor. Appellant brings eight issues on appeal
challenging all three judgments. We affirm the three judgments. BACKGROUND
All three complaining witnesses testified at appellant’s trial.
The record contains the following testimony of Antwaneequa Anderson: She
met appellant in 2008 or 2009. They had children together and lived together but did
not marry. She subsequently resided with her parents, Jacqueline Anderson and Alton
Anderson. On January 6, 2020, she was with her parents in their apartment. Appellant
knocked at the door. She opened it, and appellant walked in. He told her, “I want you
to come back home. You gonna come back home.” She replied, “No.” He hit her face
with his fist. She threatened to call police, and he replied, “I’m gonna go in here with
your mom and daddy.” He walked toward her parents’ room and pulled out a firearm.
She heard gunfire. Appellant was by the kitchen area at the entrance to her parents’
bedroom. She couldn’t remember how many times he fired. She went to a bookshelf
where she kept her pistol. “Then I reach for my gun, and I get it down, and I start
shooting at him.” She fired at appellant and missed. He turned and fired at her.
Appellant shot her. She tried to block appellant from their son’s room. Appellant was
still shooting at her. He left the apartment. She had been shot in the hand, arm, and
shoulder. She ran into her parents’ room. Her father was lying on the floor. He was
unresponsive, and she thought he was dead. Antwaneequa had been shot in the hands,
shoulder, and arm. The prosecutor asked her, “You’re a hundred percent sure that
Steve Eric Roberson shot your dad, your mom, and you on January 6, 2020?” She
replied, “Yes.”
–2– The record contains the following testimony of Alton Anderson: Alton
Anderson was seventy-one years old on January 6, 2020. On that date, he was asleep
in his bed. He awoke and saw appellant standing in the doorway of his bedroom and
raising his hand to shoot. Appellant had a pistol and fired at him. He thought he was
shot three times. He tried to stand up and lean on a dresser when appellant shot him
in the arm. He fell to the floor and thought he would die. The prosecutor asked, “[T]his
man here in the courtroom Steve Roberson is the one that shot you on January 6,
2020?” Alton replied, “Yes.”
Antwaneequa’s mother, Jacqueline Anderson, testified as follows: She was
sixty-four years old on January 6, 2020. On that date, she was in her bedroom at her
apartment. She heard a knock at the apartment door and heard Antwaneequa say,
“Why you going in my mother’s room?” Then appellant was at her bedroom door.
She “quickly” recognized it was appellant because she had known him for years. He
had a gun in his hand. Appellant’s hand went up, and “all of a sudden I saw flashes.”
Appellant shot Alton twice and then shot her twice. She was hit on an arm and on her
back. She fell to the floor, and appellant shot Alton again. She saw Alton and
Antwaneequa were injured. The prosecutor asked, “And just to be clear, the individual
seated at this table over here, Mr. Roberson, is the one that did that to all three of
y’all.” She responded, “Yes. Yes, he did.”
–3– The jury convicted appellant for aggravated assault of Antwaneequa Anderson,1
for which the trial court assessed punishment at sixty years’ confinement. The jury
convicted appellant of injury to an elderly individual for shooting Alton Anderson,2
and the trial court assessed punishment therefor at sixty years’ confinement. The jury
convicted appellant of aggravated assault of Jacqueline Anderson, and the trial court
assessed punishment therefor at twenty years’ confinement.
This appeal followed.
1 Section 22.02 of the Texas Penal Code provides:
(a) A person commits an offense if the person commits assault as defined in § 22.01 and the person:
(1) causes serious bodily injury to another, including the person’s spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
PENAL § 22.02. Section 22.01, defining assault, in part provides: “(a) A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse . . . .” PENAL § 22.01(a)(1). Section 22.02(b)(1)(A) provides aggravated assault is a first-degree felony if “the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by Section 71.0021(b) . . . Family Code.” PENAL § 22.02(b)(1)(A).
2 Section 22.04(a) of the Texas Penal Code provides:
(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence by act . . . causes to a . . . elderly individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
Section 22.04(c)(2) defines “elderly individual” as “a person 65 years of age or older.” Section 22.04(e) provides, “An offense under Subsection (a)(1) or (2) . . . is a felony of the first degree when the conduct is committed intentionally or knowingly. . . .”
–4– APPELLANT’S REMOVAL FROM THE COURTROOM DURING VOIR DIRE
Appellant complains in his first three issues on appeal of his removal from the
courtroom during jury voir dire proceedings. He complains,
Appellant’s Issue 1: The trial court erred in removing the defendant from the courtroom during jury selection thereby violating his constitutional right to be present during every phase of the trial proceedings against him as afforded by the Sixth and Fourteenth Amendments to the United States Constitution.
Appellant’s Isssue 2: The trial court erred in removing the defendant from the courtroom during jury selection thereby violating his constitutional right to be present during every phase of the trial court proceedings against him as afforded by Article I, Section 10 of the Texas Constitution.
Appellant’s Issue 3: The trial court erred in removing the defendant from the courtroom during jury selection thereby violating his constitutional right to be present during every phase of the trial proceedings against him as afforded by Article 33.03 of the Texas Code of Criminal Procedure.
A pretrial hearing on February 16, 2022, concerned appellant’s decision of
whether the trial court or the jury would assess possible punishment. The trial court
explained the law, and appellant interrupted the trial judge and said, “That’s a lie.”
The trial court responded, “That’s what the law says.” Appellant responded “That ain’t
what no law say.” The trial court stated, “There is no way that I can put Mr. Roberson
back in the holdover. The microphone’s not working back there, but I’ve decided to
go ahead and let him come out here and just spew whatever he wants to say . . .”
Appellant interrupted the trial court, “Cause you lyin. You lyin and I know it.”
–5– Appellant continued to interrupt the trial court. At the hearing’s conclusion, the trial
court stated, “You are shooting yourself in the foot with your behavior.” Appellant
responded, “You shooting yourself in the foot.”
The next day, the trial court stated proceedings were on the record. Appellant
continued to interrupt and attempted to argue with the trial court. He interrupted the
trial court again and said, “You lyin.” Appellant continued to interrupt. Subsequently,
the trial court stated to the court reporter, “Make sure it’s clear that he’s talking while
I’m talking . . .” Appellant interrupted, “I can speak. You gonna tell me I can’t?”
Appellant continued to interrupt. The trial court discussed with counsel how to
conduct proceedings if appellant were removed from the courtroom:
THE COURT: Mr. Ashford, how did y’all do it before [when] you had somebody that had to [be] put outside? We’re gonna try to get this done. We are gonna try this if I have to stand on my head.
MR. ASHFORD: There was a laptop right there at the—at the glass.
MR. SEARCEY: We had to stream it to him.
THE COURT: I’ll get my laptop.
The proceedings moved to the central jury room. The trial court began jury voir
dire. Appellant soon interrupted the trial court as it introduced the jury to the court
reporter. The trial court said, “Mr. Roberson, please.” He continued to interrupt. The
trial court said: “Mr. Roberson, if you would, please. We’ve talked about this. Work
with us, Mr. Roberson.” Appellant responded, “I am working with you.” Soon after,
appellant again interrupted the trial court, which stated, “Please, Mr. Roberson,
–6– please.” The trial court stated to the court reporter, “Kendra, take what you can, and
take me when there’s—when there are two of us talking.” Soon after, appellant
interrupted the trial court and stated, “That’s a lie.” The trial court responded, “Mr.
Roberson, please.” Appellant continued to interrupt the trial court, which stated to the
court reporter, “Take what you can, Kendra, and when you can’t and you have two
choices, take me.” Appellant continued to interrupt the trial court and stated, “I can
talk. Freedom of speech, right?” After additional interruption by appellant, the trial
court stated,
All right. We’re gonna do the best we can. The law also requires that an individual charged with a crime be present. Be present at all hearings, at all proceedings, absolutely be present during jury selection.
So I am going to do the best I can, including stand on my head maybe before it's over, to try to see that Mr. Roberson remains out here so that he can see you and see what the attorney for the State says and what the attorney for the defendant says and be able to assist his attorney as the law also contemplates in handling the case. I'm gonna do the best I can to keep Mr. Roberson out here, and I'm really hoping that he will cooperate with that so that we can talk to y'all and let a lot of y'all go.
Subsequently, appellant interrupted and attempted to argue with the trial court
at length. Eventually, another exchange occurred, ending as follows:
THE COURT: Mr. Roberson, if you'll wait just a second.
THE DEFENDANT: Then you put a different clerk on there, which ain't no DA. Don't lie in front of these motherfucking people. Tell the truth.
THE COURT: Out we go.
THE DEFENDANT: Bitch, tell the truth, ho.
–7– THE COURT: Out we go.
THE DEFENDANT: What the fuck you talking about? Tell the motherfucking truth, bitch. Fuck you talking about? Don't lie. You heard what the fuck I said. Fuck you lying for?
The court reporter’s record indicates appellant then was removed from the courtroom.
The trial judge then addressed potential jurors, saying in part:
And so, please know that many things have gone on before today, and people in the court system are often unhappy. I understand that. You are still gonna be asked as a jury—obviously, we don't wipe things out of our mind, and I do not know what's gonna happen up in the courtroom, certainly don't know what's gonna happen when witnesses begin to testify, but I'm gonna do the best I can to see that he is in the courtroom, if we're able to do that, but we're gonna still ask you, even though you're not required to wipe your mind, I don't know how you do that, how anybody can do that but still required to ask you to look at the witness, to consider the law, to base your verdict on what comes out because this isn't evidence.
This is not evidence. You are entitled to consider any number of things in making a decision, but as far as guilty or not guilty of two aggravated assault with a deadly weapons and injury to an elderly person, that's got to come from the evidence, and I promise I'll be right back.
The trial court subsequently stated appellant could view voir dire proceedings
via video in another courtroom. It said, “We’re about to—we’re about to log him on
up in—upstairs in the courtroom.” The trial court explained how court personnel
would arrange for appellant’s remotely viewing and listening to the proceedings. The
trial court stated, “[W]e are doing everything we can to be sure that he’s able to watch
in the absence . . . Doing the best we can to make sure that he has access, and at least
it’s there.” The trial court then resumed voir dire proceedings.
–8– The trial court admonished potential jurors:
Presumption of innocence. You—I know we've had a couple little things happen this morning, and there is a likelihood that we can have some more happen. I am gonna ask you, as adults who have had experiences in life and who know how things work and how upsetting situations can be, I'm going to ask you, despite what the unhappiness of—of Mr. Roberson, who clearly he is unhappy and angry, I'm gonna ask you to, despite any of those kind of things, to presume him innocent at the beginning of the trial because he is.
At this point, he is presumed innocent of these three offenses. Why? Because you hadn't heard anything. You hadn't heard a witness. You hadn't seen a document. You haven't seen a videotape. You haven't heard from any of these people.
He's not guilty right now if you were asked to decide, but you have to be able to say, regardless of what I saw this morning, which is unfortunate, and Mr. Roberson has—we have many times tried to say, this is what you wanted. Here you are. Please don't. This is hurting you, but I'm asking you now to despite that, to please give Mr. Roberson a fair trial.
Listen to his—listen to the evidence. If you think he's not guilty, despite any unhappy behavior, anger, disruption, find him not guilty. If you believe he is guilty, find him guilty. That's all we're asking —all we're asking you to do.
Appellant argues his exclusion from the courtroom violated the Sixth and
Fourteenth amendments to the United States Constitution, Article I, section 10 of the
Texas Constitution, and Article 33.03 of the Texas Code of Criminal Procedure. See
U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN.
art. 33.03.
We review a trial court's decision to exclude a criminal defendant from trial for
an abuse of discretion. See, e.g., Kessel v. State, 161 S.W.3d 40, 44 (Tex. App.—
–9– Houston [14th Dist.] 2004, pet. ref'd); see also Illinois v. Allen, 397 U.S. 337, 343
(1970) (courts must be given sufficient discretion to determine the appropriate manner
of handling a disruptive defendant in the courtroom). We will uphold the trial court's
ruling so long as it is “within the zone of reasonable disagreement.” Kessel, 161
S.W.3d at 44.
The Sixth Amendment's right of confrontation requires any defendant
threatened with the loss of liberty to be physically present at all phases of the criminal
proceedings against him. Allen, 397 U.S. at 338; Miller v. State, 692 S.W.2d 88, 90
(Tex. Crim. App. 1985); see also Sanchez v. State, 702 S.W.2d 258, 259 (Tex. App.—
Dallas 1985, pet. ref'd) (criminal defendant has a fundamental right to be present at
every stage of his trial). The Texas Constitution provides the defendant with a similar
right to be present in the courtroom during his trial. See TEX. CONST. art. I, § 10;
Sanchez, 702 S.W.2d at 259.
The Court in Allen held removal from the courtroom would be warranted if,
after being warned by the trial court of the possibility of removal, the defendant
continues to conduct himself “in a manner so disorderly, disruptive, and disrespectful
of the court that his trial cannot be carried on with him in the courtroom.” 397 U.S. at
343. For constitutional purposes, the defendant need only be present in the courtroom
at the commencement of trial, which includes any time after the voir dire process has
begun, and may thereafter voluntarily absent himself from the trial, either expressly
or through his disruptive conduct. See Sumrell v. State, 326 S.W.3d 621, 624 (Tex.
–10– App.—Dallas 2009, pet. dism’d); see also Miller, 692 S.W.2d at 91 (defendant who
is present at the time voir dire begins, but who thereafter voluntarily removes himself
from the courtroom, forfeits his Sixth Amendment rights); Tracy v. State, 14 S.W.3d
820, 826 (Tex. App.—Dallas 2000, pet. ref'd) (defendant's Sixth Amendment rights
were not violated when he voluntarily absented himself from trial after the
commencement of voir dire, but before jury was selected); Ashley v. State, 404 S.W.3d
672, 680 (Tex. App.—El Paso 2013, no pet.) (“After commencement of trial
proceedings, a defendant may voluntarily absent himself from the trial without a
violation of his Sixth Amendment right to be present during all phases of the trial.”).
Appellant’s conduct after commencement of voir dire proceedings, quoted
above, was so disorderly, disruptive, and disrespectful of the court that his trial could
not be carried on with him in the courtroom. See Allen, 397 U.S. at 343; Sumrell, 326
S.W.3d at 624. The trial court indicated prior to appellant’s removal from the
courtroom that it considered his possible removal due to his conduct, as addressed
above. Consequently, we conclude appellant’s removal from the courtroom during
jury voir dire was not constitutionally improper. See Barrier v. State, Nos. 05-20-
00088-CR, 05-20-00089-CR, 05-20-00090-CR, 05-20-00091-CR, 05-20-00092-CR,
05-20-00093-CR, 2021 WL 2562145, at *5 (Tex. App.—Dallas June 23, 2021, pet.
ref’d) (memo op., not designated for publication) (appellant’s removal from
courtroom during voir dire due to his behavior did not violate the Sixth Amendment
of the U.S. Constitution or Article I, section 10 of the Texas Constitution).
–11– In Texas, however, a defendant is given additional protection by statute and has
an absolute right to remain in the courtroom until the jury has been selected. Sumrell,
326 S.W.3d at 623, n.2 (“[t]his right is codified under state law in article 33.03 of the
Texas Code of Criminal Procedure, which is even more protective of a defendant's
rights than the constitutional provisions because the right to be present cannot be
waived before the jury is selected.”) (citing Miller, 692 S.W.2d at 91). Article 33.03
of the Texas Code of Criminal Procedure provides, in relevant part:
In all prosecutions for felonies, the defendant must be personally present at the trial ... provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion.
CRIM. PROC. art. 33.03.
Although a defendant may waive his Sixth Amendment right to be present in
the courtroom after trial commences, under Article 33.03, “an accused's right to be
present at his trial is unwaivable until such a time as the jury has been selected.”
Miller, 692 S.W.2d at 89. Similarly, as this Court has concluded, while a defendant's
Sixth Amendment rights are not violated when the defendant voluntarily absents
himself after his trial has commenced, his statutory rights are violated when the trial
court holds jury selection in his absence, because the “right to be present until
selection of the jury cannot be waived.” Tracy, 14 S.W.3d at 826; Ashley, 404 S.W.3d
680 (distinguishing between the constitutional right to be present at trial that may be
forfeited, and the statutory right to be present through jury voir dire, which may not
–12– be waived); see also Bledsoe v. State, 936 S.W.2d 350, 351 n.2 (Tex. App.—El Paso
1996, no pet.) (given the mandatory language of the statute, it is error to proceed with
a trial if the defendant is absent during jury selection regardless of the reasons for the
absence).
However, to the extent appellant’s removal during voir dire violated article
33.03, we conclude any error was not reversible error. Because the error was statutory,
we may not reverse unless we determine the error affected a substantial right. See
Tracy, 14 S.W.3d at 827. A substantial right is affected when the error (1) had a
“substantial and injurious” effect or influence in determining the jury’s verdict or (2)
leaves one in grave doubt whether it had such an effect. See id. A substantial right is
not affected and the error is harmless if, after reviewing the entire record, the appellate
court determines the error did not influence, or had only a slight influence, on the
trial’s outcome. See id. The court of criminal appeals has held no violation of
substantial rights occurs during voir dire unless the record shows the defendant was
denied a fair and impartial jury. See id. “In this case, the record does not show the jury
selected in appellant’s absence was unfair or partial.” Barrier, 2021 WL 2562145, at
*5. Appellant does not argue to the contrary. Therefore, even though appellant’s
statutory right to be present during all portions of voir dire was violated, the error did
not affect a substantial right. Accordingly, we disregard the error. See TEX. R. APP. P.
44.2.
We overrule appellant’s first, second, and third issues.
–13– ACCESS TO VOIR DIRE PROCEEDINGS
In his fourth appellate issue, appellant complains the trial court erred in
removing him from the courtroom during jury selection without providing him access
to listen to the proceedings. He asserts the record “does not contain any indication” he
was able to listen to voir dire proceedings during removal. As addressed above, the
record indicates appellant was provided the ability to contemporaneously view and
listen to proceedings after his removal. Accordingly, we overrule appellant’s fourth
issue on appeal.
COMPETENCE TO STAND TRIAL
In his fifth issue on appeal, appellant asserts, “The trial court abused its
discretion and reversibly erred in continuing the trial of these cases when evidence of
Appellant’s incompetency was revealed by his conduct in the courtroom that caused
the trial judge to remove him from the courtroom on several occasions.” Appellant
asserts the trial court should have made an informal inquiry with the commencement
of the jury selection.
We review a trial court's decision not to conduct an informal competency
inquiry for abuse of discretion. See Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim.
App. 2009), superseded by statute on other grounds as recognized in Turner v. State,
422 S.W.3d 676, 692 & n.31 (Tex. Crim. App. 2013). We do not substitute our
judgment for that of the trial court, and we will not reverse its decision unless it is
arbitrary or unreasonable. See id.
–14– A person is incompetent to stand trial if the person does not have: (1) sufficient
present ability to consult with the person's lawyer with a reasonable degree of rational
understanding; or (2) a rational as well as factual understanding of the proceedings
against the person. See CRIM. PROC. art. 46B.003(a). A trial court must conduct an
informal competency inquiry if evidence comes to the court's attention suggesting the
defendant may be incompetent. See id. art. 46B.004(b).
At the informal inquiry stage, there must be “some evidence from any source
that would support a finding that the defendant may be incompetent to stand trial.”
Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018) (quoting article
46B.004(c) of the code of criminal procedure). This standard requires more than a
scintilla of evidence that rationally may lead to a conclusion of incompetency. See id.
at 564. The trial court must consider only evidence of incompetency, and it must not
weigh evidence of competency against the evidence of incompetency. See id. Further,
some evidence must be presented at the informal inquiry stage to show that a
defendant's mental illness is the source of his inability to participate in his own
defense. See id. It is not enough to present evidence of either a defendant's mental
illness alone or his refusal to assist counsel; there must be some evidence indicating
that the defendant's inability to rationally engage with counsel is caused by mental
illness. See id.
Evidence suggesting need for an informal inquiry may be based on observations
made in relation to one or more of the factors described by Article 46B.024 or on any
–15– other indication that the defendant is incompetent. See Ware v. State, 05-19-00365,
2020 WL 4499797, at *1 (Tex. App.—Dallas Aug. 5, 2020, no pet.) (mem. op., not
designated for publication) (citing article 46B.004(c-1) of the code of criminal
procedure). The article 46B.024 factors include the defendant's capacity to: (a)
“rationally understand the charges against the defendant and the potential
consequences of the pending criminal proceedings”; (b) “disclose to counsel pertinent
facts, events, and states of mind”; (c) “engage in a reasoned choice of legal strategies
and options”; (d) “understand the adversarial nature of criminal proceedings”; (e)
“exhibit appropriate courtroom behavior”; and (f) “testify.” Id. art. 46B.024(1)(A)–
(F). Considerations also include whether, “as supported by current indications and the
defendant's personal history,” the defendant suffers from a mental illness and, if so,
how it affects the defendant's capacity to reasonably and rationally participate in his
own defense. See id. art. 46B.024(2), (4).
Appellant asserts:
“Appellant was disruptive and acted out spontaneously and erratically.”
“. . . [Appellant] engaged in frequent outbursts before and during trial, and refused to communicate with his attorney and the trial court.”
“[Appellant’s] behavior was inconsistent with someone that was presumed competent.”
“[Appellant’s] competency should have been called in question by his behavior.”
–16– Based on our review of the record, we find no evidence from any source to
suggest to the trial court that appellant was incompetent to stand trial. See Boyett, 545
S.W.3d at 563-64. We see no evidence that appellant was mentally ill, that he was
unable to assist counsel, or that he was unable to rationally engage with counsel due
to mental illness. See id. Appellant’s outbursts and interjections generally were
responsive to the trial court’s statements, showing his understanding of the
proceedings. See Cahill v. State, Nos. 05-21-00504-CR, 05-21-00505-CR, 05-21-
00506-CR, 05-21-00507-CR, 05-21-00508-CR, 05-21-00509-CR, and 05-21-00510-
CR, 2022 WL 17828927, at *4 (Tex. App.—Dallas Dec. 21, 2022, no pet.) (mem. op.,
not designated for publication) (rejecting argument, made by appellant here, that
repeated outbursts during trial should have raised doubts as to his competency). We
see no evidence that appellant’s conduct was “truly bizarre.” Silvey v. State, No. 05–
11–01443–CR, 2013 WL 398742, at *1 (Tex. App.—Dallas Jan. 31, 2013, pet. ref’d)
(mem. op., not designated for publication). Rather, “His failure to comply with the
trial court’s directions concerning proper courtroom decorum is more consistent with
obstinacy than incompetence.” Cahill, 2022 WL 17828927, at *4; see Turner, 422
S.W.3d at 691 (“Indeed, even a mentally ill defendant who resists cooperating with
his counsel may nevertheless be found competent if the manifestations of his
particular mental illness are not shown to be the engine of his obstinacy.”). Appellant’s
conduct was consistent with the trial court’s assessment of it as angry, unhappy, and
disruptive. Moreover, the fact that appellant made outbursts during trial is not
–17– evidence of an inability to communicate with counsel or to appreciate the proceeding
against him. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999). If such
actions were enough to demonstrate incompetency, a defendant could easily avoid
prosecution through immature behavior. See id.
Additionally, appellee’s counsel asserts he must correspond with appellant and
that “The Texas Department of Corrections-Institutional Division lists Appellant
being incarcerated at the Skyview Unit, which is a Psychiatric Unit.” He argues,
“[T]his is easily verifiable on the internet and suggest[s] that Appellant should have
been examined contemporaneously with the commencement of jury selection as
competency can be a very fluid mental state.” We may not consider counsel’s assertion
because it is not in the appellate record. See Whitehead v. State, 130 S.W.3d 866, 872
(Tex. Crim. App. 2004) (appellate court may not consider factual assertions that are
outside record); Hailey v. State, 413 S.W.3d 457, 491 (Tex. App.—Fort Worth 2012,
pet. ref'd) (“Mere assertions in a brief not supported by the record will not be
considered on appeal.”). Moreover, the mere fact of appellant’s residence at a
psychiatric unit—even if we could consider such non-record assertions—would not
trigger a trial court’s obligation to conduct an informal inquiry. See Turner, 422
S.W.3d at 691 (mental illness does not by itself suggest incompetency; there must also
be evidence raising the possibility that the defendant's mental illness “operates in such
a way as to prevent him from rationally understanding the proceedings against him or
engaging rationally with counsel in pursuit of his own best interest.”).
–18– Reviewing the record only for possible evidence of incompetency, we
determine there was no evidence from any source that would suggest to the trial court
that defendant might have been incompetent to stand trial. See Boyett, 545 S.W.3d at
563 (quoting article 46B.004(c) of the code of criminal procedure).
We conclude the trial court did not abuse its discretion in failing to sua sponte
inquire into appellant’s competency to stand trial. Accordingly, we overrule
appellant’s fifth issue.
ADMISSION OF VIDEO EVIDENCE
In his sixth issue, appellant complains, “The trial court abused its discretion and
reversibly erred in overruling appellant’s objection to the state’s exhibit numbers 144
and 145 depicting appellant in police station video interview room.” Appellant
objected at trial to their admission based on rule 403 of the Texas Rules of Evidence.
See TEX. R. EVID. 403 (“The court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.”).
Appellant argues the videos are of (1) “appellant misbehaving in the interview
room”; (2) appellant “kicking at the door”; (3) appellant “being confronted by
officers”; (4) appellant’s not wearing a shirt; and (5) appellant “being manhandled and
tased by the officers.”
The record contains unobjected-to testimony of two Dallas Police officers who
–19– testified about events depicted in exhibits 144 and 145 prior to the exhibits’ admission
as evidence. Dallas Police Officer Reininger testified he was at Dallas Police
Department Headquarters. He testified appellant shouted “very loudly.” He testified
appellant attempted to kick down the door “so hard that, you know, the door was
moving and the wall was moving, even when we were trying to hold it.” He testified
that he and another officer had to enter the room to try to handcuff appellant. He
testified: “We tried to talk to him for a little while to calm him down, but he ended up,
you know, not responding to any commands, not turning around, and he started balling
his fists and moving forward a little bit, so we had to go hands on.” He testified
appellant wanted to speak with Antwaneequa Anderson. He testified he tased
appellant. He testified appellant was taken downstairs at headquarters and then by
ambulance to Parkland Hospital. Dallas Police Officer Purkey also was at Dallas
Police Department Headquarters after appellant had been taken there. He testified
appellant “started banging on the door and wall” in the interview room at headquarters.
He testified he entered the room to handcuff appellant because “it looked like he was
gonna bust the door.”
As noted, the officers’ testimony provided evidence of events depicted in
exhibits 144 and 145 and identified by appellant in his argument here. Appellant did
not object to the testimony of Reininger and Purkey. In these circumstances, even if
admission of the video evidence was erroneous, which we assume here only for
purposes of analysis, “erroneously admitting evidence ‘will not result in reversal when
–20– other such evidence was received without objection, either before or after the
complained-of ruling.’” Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010);
see Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (any error in
admission of exhibit was harmless in light of proper admission of “very similar”
evidence without objection); Hill v. State, No. 05-08-01011-CR, 2020 WL 2124520,
at *9 (Tex. App.—Dallas May 5, 2020, no pet.) (mem. op., not designated for
publication). Accordingly, even if admission of exhibits 144 and 145 was erroneous—
which we expressly do not decide—we conclude any such error was harmless.
We overrule appellant’s sixth issue.
ADMISSION OF TESTIMONY
In his seventh issue, appellant complains, “The trial court erred in overruling
appellant’s objection to the state questioning witness Antwaneequa Anderson about
how she felt about members of appellant’s family questioning her about paternity of
her child.” Appellant complains of admission of the following testimony:
Q. Okay. And how did you feel when they questioned the paternity of your kid?
MR. ASHFORD: Objection, relevance.
THE COURT: How did you feel?
MR. SEARCEY: Yes, Judge. I'm just asking her perception of what was going through her mind.
THE COURT: Okay. Overruled. Go ahead. You may answer.
A. I was kind of mad.
–21– Appellant argues on appeal the objected-to evidence should have been excluded
under Texas Rule of Evidence 403.
Appellant’s trial objection, however, was “relevance.” See id. 401 (evidence is
relevant if it has any tendency to make a fact more or less probable than it would be
without the evidence, and the fact is of consequence in determining the claim); see id.
402 ([R]elevant evidence is admissible unless certain identified legal authority
provides otherwise. Irrelevant evidence is not admissible.).
This Court has consistently held a trial objection on the ground of relevance
does not preserve for appellate review an issue under Rule 403. See, e.g., Crenshaw
v. State, No. 05-11-01550-CR, 2022 WL 6194236, at *1 (Tex. App.—Dallas Nov. 30,
2012, pet. ref’d) (mem. op., not designated for publication); Kindle v. State, No. 05-
19-01268, 2021 WL 2281665, at *5 (Tex. App.—Dallas June 4, 2021, pet. ref’d)
(mem. op., not designated for publication) (citing Hiatt v. State, No. 05-19-00564-CR,
2020 WL 7021539, at *6 (Tex. App.—Dallas Nov. 30, 2020, no pet.) (mem. op., not
designated for publication) (relevance objection does not preserve Rule 403
complaint)); Jackson v. State, No. 05-16-00706-CR, 2017 WL 2472838, at *2 (Tex.
App.—Dallas June 8, 2017, no pet.) (mem. op., not designated for publication) (a
specific rule 403 objection must be raised to preserve error because such an objection
is not implicitly contained in relevancy objection); and see TEX. R. APP. P. 33.1
(requiring specific objection and ruling to preserve issue for review unless objection
–22– is obvious from the context). We are bound to faithfully apply our own precedent. See
Tiller v. State, No. 05-21-00653-CR, 2022 WL 2093008, at *2 (Tex. App.—Dallas
June 10, 2022, no pet.) (mem. op., not designated for publication) (“We are bound to
follow our own precedent unless it conflicts with an opinion of the Court of Criminal
Appeals.”). Appellant failed to preserve a Rule 403 objection for our review.
Consequently, we overrule appellant’s seventh issue.
SUFFICIENCY OF THE EVIDENCE
In his eighth issue, appellant argues, “The evidence is insufficient to support
the conviction in each cause number for the offense of aggravated assault.”3
In assessing the sufficiency of the evidence to support a conviction, we consider
the evidence in the light most favorable to the verdict and determine whether, based
on the evidence and reasonable inferences therefrom, a rational juror could have found
the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App.
2014). “This familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. A
3 As addressed above, appellant was convicted of two counts of aggravated assault and one count of injury to an elderly individual. We interpret appellant’s eighth issue as attacking all three judgments.
–23– proper review of evidentiary sufficiency considers the cumulative force of the
evidence. See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
When considering a claim of evidentiary insufficiency, a reviewing court does
not sit as the thirteenth juror and may not substitute its judgment for that of the
factfinder by reevaluating the weight and credibility of the evidence. See Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury is permitted to draw
reasonable inferences from the evidence adduced at trial. See Metcalf v. State, 597
S.W.3d 847, 855 (Tex. Crim. App. 2020). Additionally, the jury may use common
sense, common knowledge, personal experience, and observations from life when
drawing inferences. See Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
However, “juries are not permitted to come to conclusions based on mere speculation
or factually unsupported inferences or presumptions.” Hooper v. State, 214 S.W.3d 9,
15 (Tex. Crim. App. 2007).
We measure the sufficiency of the evidence against the hypothetically correct
jury charge, defined by the statutory elements as modified by the charging instrument.
See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that accurately states the law, is authorized by the
indictment, does not increase the State's burden of proof, and adequately describes the
offense with which the defendant is charged. See id.
The prosecution must prove beyond a reasonable doubt the defendant is the
person who committed the offense charged. See Nelson v. State, No. 05-21-00945-
–24– CR, 2023 WL 6425689, at *3 (Tex. App.—Dallas Oct. 8, 2023, no pet. h.) (mem. op.,
not designated for publication). Identity may be proved by either direct or
circumstantial evidence, coupled with all reasonable inferences from that evidence.
See id. The testimony of a single eyewitness may be sufficient evidence to identify a
defendant as a perpetrator. See id.
Appellant argues the evidence is insufficient to prove he is the person who
committed the crimes for which he was convicted. He argues a defendant, even the
most likely defendant, is presumed to be innocent unless his guilt is established
beyond a reasonable doubt. He quotes final argument in the trial court in support of
his appellate argument.
Each of the three victims had known appellant before the shootings. Each of the
three eye-witnesses positively and without equivocation identified appellant as the
person who shot them. Based on this direct evidence from the three complaining
witnesses, we conclude a rational juror could have concluded beyond a reasonable
doubt that appellant was the person who assaulted them. See Jackson, 443 U.S. at 319;
Nelson, 2023 WL 6425689, at *3.
–25– CONCLUSION
We affirm the trial court’s judgments.
/Bill Pedersen, III/ BILL PEDERSEN, III 220190f.u05 JUSTICE 220191f.u05 220192f.u05 Do Not Publish Tex. R. App. P. 47.2(b)
–26– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
STEVE ERIC ROBERSON, On Appeal from the 204th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-2051158-Q. No. 05-22-00190-CR V. Opinion delivered by Justice Pedersen, III. Justices Molberg and THE STATE OF TEXAS, Appellee Miskel participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 22nd day of November, 2023.
–27– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
STEVE ERIC ROBERSON, On Appeal from the 204th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-2051159-Q. No. 05-22-00191-CR V. Opinion delivered by Justice Pedersen, III. Justices Molberg and THE STATE OF TEXAS, Appellee Miskel participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–28– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
STEVE ERIC ROBERSON, On Appeal from the 204th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-2051160-Q. No. 05-22-00192-CR V. Opinion delivered by Justice Pedersen, III. Justices Molberg and THE STATE OF TEXAS, Appellee Miskel participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–29–