Wesley Gerard Jones v. the State of Texas

Opinion

Affirmed and Opinion Filed October 31, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00555-CR

WESLEY GERARD JONES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F-1942507-Y

MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Breedlove Opinion by Justice Breedlove A jury found appellant Wesley Gerard Jones guilty of aggravated robbery and

sentenced him to life imprisonment. TEX. PENAL CODE ANN. § 29.03. In three issues,

appellant contends a mistrial should have been declared after the trial judge recused

herself, fundamental error occurred from the prosecutor’s comments during voir

dire, and the trial court erred by admitting certain testimony. We affirm appellant’s

conviction. BACKGROUND

Because appellant does not challenge the sufficiency of the evidence to

support his conviction, we do not discuss the facts in detail. On December 30, 2019,

Quan Bo Doan was working at a FixaFone store when appellant entered the store

with a gun. Appellant jumped over the counter, leaving a palm print there. He looked

in the empty cash register and took Doan’s wallet and cash. When Doan tried to run

from the store, appellant shot him. The incident was recorded on the store’s security

camera.

Mesquite police officer Ed Sparling responded to the scene to find Doan lying

on the ground in a “massive” pool of his own blood. Doan was unconscious and had

several gunshot wounds, but still had a pulse. Sparling applied a chest seal to prevent

further blood and air loss. Sparling and the other responding officers received an

award for their efforts.

Doan survived and testified at trial. He identified appellant as the person who

shot him. Appellant had visited the store twice earlier in the same day, attempting to

sell a broken cell phone and bottles of champagne. He gave Doan a Post-It Note with

his telephone number and a description of the bottles. Appellant’s former girlfriend

Monique Dudley later identified the phone number as appellant’s.

The video from the store’s security camera was admitted into evidence and

shown to the jury at trial. Still photos from the video were also admitted, as were the

Post-It Note and photos of the champagne bottles from appellant’s phone. In addition

–2– to testimony by Sparling, Doan, and Dudley, the jury also heard testimony from

appellant’s great uncle Ennis Marks, from investigating officer Detective Curtis

Phillip of the Mesquite Police Department, and from three other detectives or police

officers who were involved in the investigation. The jury found appellant guilty of

aggravated robbery. During the punishment phase, the jury heard testimony from

appellant’s mother and from an investigator who testified about appellant’s previous

convictions. The jury found the allegations in an enhancement paragraph true and

assessed appellant’s punishment at life in prison and no fine. This appeal followed.

1. Mistrial

In his first issue, appellant contends a mistrial should have been granted when

the judge recused herself after jury selection. This case was originally filed in the

282nd Judicial District Court, with Judge Amber Givens presiding. After the jury

was selected and sworn, appellant’s attorney explained he had received information

from appellant that Judge Givens had told her neighbors that she was happy the case

landed in her court. Appellant claimed to have learned this information from his ex-

girlfriend Monique Dudley, who had been subpoenaed as a trial witness by both

parties. Monique Dudley’s parents were Judge Givens’s neighbors.

Judge Givens unequivocally denied the allegation and appellant’s counsel did

not move to recuse her. Judge Givens then called the neighbors on the phone.

Dudley’s mother answered and also denied the allegation:

–3– (Judge on the phone on the Bench) MS. DUDLEY: Hello.

THE COURT: Hi, Ms. Dudley.

MS. DUDLEY: Hi, Amber.

THE COURT: Hey, I want to make sure of something real quick. Uh, I’m in trial with an individual by the name of Wesley Jones. He has told his attorney that I talked to you about the case and told you that I was happy that the case came to my court.

MS. DUDLEY: That’s a lie. No, that’s a lie.

After the phone call, Judge Givens voluntarily recused herself to avoid any

possible appearance of bias:

THE COURT: Out of an abundance of caution, ’cause I take my job very seriously. What I do. And the fact that I am fair and impartial, I’m going to recuse myself voluntarily.

But I wanted the record to reflect first that she and I do not speak about cases. And I don’t even know him. Him being Wesley Jones. Never seen him in my life. After Judge Givens recused herself, the case was transferred to the Criminal

District Court #7 of Dallas County. Judge Paul Banner presided over the trial. After

the transfer, before the jury was brought in, Judge Banner asked the parties if they

had any concern with how the jury was selected in reference to Judge Givens’s

recusal:

THE COURT: Now as to what’s happened up to now, has—does the State have any concern about going forward?

... THE COURT: In other words, the way and how the jury got selected, is there a problem from the State’s position? –4– [PROSECUTOR]: No, Judge. THE COURT: How about, uh, Mr. Edwards, from the Defendant’s position?

[DEFENSE ATTORNEY]: Not—not with how the jury was selected.

THE COURT: Okay. Fine. When Judge Banner asked whether there was anything else that needed to be

put in the record, appellant’s attorney asked the court to hear a pro se request from

appellant to dismiss his attorney, and the parties’ other pretrial motions were heard

and ruled on. Nothing further was raised about Judge Givens’s alleged bias or

previous rulings.

Due process requires a neutral and detached hearing body or officer. Brumit

v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli,

411 U.S. 778, 786 (1973)). A defendant has an absolute right to an impartial judge

at both the guilt-innocence and punishment phases of trial. Segovia v. State, 543

S.W.3d 497, 503 (Tex. App.—Houston [14th Dist.] 2018, no pet.). A judge should

not act as an advocate or adversary for any party. Johnson v. State, 452 S.W.3d 398,

405 (Tex. App.—Amarillo 2014, pet. ref’d). To reverse a judgment on the ground

of improper conduct or comments of the judge, we must be presented with proof

(1) that judicial impropriety was in fact committed, and (2) of probable prejudice to

the complaining party. Id. Absent a clear showing of bias, a trial court’s actions are

presumed correct. Brumit, 206 S.W.3d at 645.

–5– Appellant never asked Judge Banner to reconsider any of Judge Givens’s

rulings, nor did he seek a new trial on the basis of bias. See TEX. R. APP. P. 33.1(a)

(requiring a timely request, objection, or motion to preserve a complaint for appellate

review). Relying on Marin v. State, however, appellant argues that no objection was

necessary to preserve his complaint of judicial bias and he is entitled to “automatic

reversal” of his conviction. See Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim.

App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex.

Crim. App. 1997).

Under Marin, there are three categories of rights: (1) absolute systemic

requirements, (2) rights of litigants which must be implemented unless expressly

waived, and (3) rights of litigants which are to be implemented upon request. Id. at

279; see also Jacobs v. State, No. 05-22-00248-CR, 2023 WL 5621672, at *2–3

(Tex. App.—Dallas Aug. 31, 2023, no pet. h.) (mem. op., not designated for

publication) (detailing Marin’s categories and preservation requirements). Only the

first two categories of errors may be raised for the first time on appeal. See Proenza

v. State, 541 S.W.3d 786, 798 (Tex. Crim. App. 2017) (citing Marin, 851 S.W.2d at

280). The Texas Court of Criminal Appeals has rejected any common law

“fundamental error” exception to the rules of error preservation based upon harm.

Id. at 796 (citing Marin, 851 S.W.2d at 278). Instead, the question of error

preservation turns upon the “nature” of the right allegedly infringed. Id. Here, we

need not determine whether the alleged error requires an objection under Marin

–6– because our review of the record does not reveal any apparent bias or partiality. See

Brumit, 206 S.W.3d at 644–45 (declining to decide whether an objection is required

to preserve an error of this nature where the record did not reflect partiality of trial

court); Graves v. State, No. 05-19-00788-CR, 2021 WL 1558740, at *1–2 (Tex.

App.—Dallas Apr. 21, 2021, no pet.) (mem. op., not designated for publication)

(same).

Appellant does not argue that Judge Givens exhibited any bias during jury

selection. Instead, he argues that because “the trial court felt it necessary to recuse

herself to remove any appearance of impartiality,” the “presumption of impropriety”

arising from his accusation “must be applied to everything else that happened

previously, including the selection of a jury.” Appellant argues this “presumption”

also applies to the judge’s rulings on his pretrial motions and request for speedy trial

and an order she signed sealing the court’s records after her recusal. There is nothing

in the record to suggest, however, that Judge Givens was aware of appellant’s

accusation at the time she ruled on his pretrial motions, nor does he explain how the

sealing order had any effect on his trial.1 As the State argues, civil procedure rule

18a governs recusal in both civil and criminal cases. DeLeon v. Aguilar, 127 S.W.3d

1, 5 (Tex. Crim. App. 2004). That rule does not require that all prior orders must be

1 Appellant’s complaint is that the sealing order “ma[d]e his appeal more difficult,” citing the fact that his appellate counsel filed a second notice of appeal because his examination of the record did not show that a notice of appeal already had been filed. He does not explain how this problem affected the fairness of his trial. –7– set aside. Urdiales v. Concord Techs. Del., Inc., 120 S.W.3d 400, 403 (Tex. App.—

Houston [14th Dist.] 2003, pet. denied) (citing rule 18a’s text that judge shall take

no “further” action in the case).

Our review of the record does not reveal any apparent bias or partiality. See

Noble v. State, No. 05-21-00326-CR, 2022 WL 17351908, at *12–13 (Tex. App.—

Dallas Dec. 1, 2022), cert. denied, 143 S. Ct. 2497, 216 L. Ed. 2d 456 (2023) (mem.

op., not designated for publication) (following Brumit; where record did not reflect

any partiality by the trial judge, no categorization under Marin required).

Accordingly, we overrule appellant’s first issue.

2. Prosecutor’s statements during jury voir dire

In his second issue, appellant complains that “the trial court committed

fundamental error by permitting the State to imply the appellant had a criminal

record during voir dire.” During voir dire, the prosecutor explained to the venire

panel that during the punishment phase, jurors “get to know things about like the

Defendant’s life, the Defendant’s criminal history.” The prosecutor made two more

similar statements during voir dire. Appellant contends the prosecutor should have

added, “if any” to the end of the statements.

Appellant did not object to the prosecutor’s statements. He concedes that

ordinarily, an objection would be required to preserve error. See TEX. R. APP. P.

33.1(a) (prerequisites for presenting complaint for appellate review); Unkart v. State,

400 S.W.3d 94, 98 (Tex. Crim. App. 2013) (“Most appellate complaints must be

–8– preserved by a timely request for relief at the trial level.”). He contends, however,

that no objection was necessary because the statement constituted “fundamental

error,” violating his due process right to be tried only for the charged offense and

not as a criminal generally. See, e.g., Ex parte Lane, 303 S.W.3d 702, 709 (Tex.

Crim. App. 2009) (“An accused may not be tried for a collateral crime or for being

a criminal generally.”).

Again, appellant relies on Marin in support of his argument. And citing Dixon

v. State, appellant contends that a complaint under Marin may be made to “an

unobjected to comment by the prosecution during voir dire.” Dixon v. State,

No. 07-16-00058-CR, 2022 WL 124568, at *13 (Tex. App.—Amarillo Jan. 13,

2022, pet. ref’d) (mem. op., not designated for publication), op. corrected on denial

of reh’g, 2022 WL 1234096 (Apr. 25, 2022) (order). In Dixon, however, the court

construed appellant’s argument of “plain error” under the federal rules of criminal

procedure as an argument under Marin and “assumed” for purposes of its analysis

that an objection was unnecessary to preserve error. Dixon, 2022 WL 124568, at

*13. After reviewing the record, however, the court concluded that because there

was “no fundamental error arising from the prosecutor’s statements, [appellant] was

required to interject a timely, specific objection to such statements in order to

preserve his complaint for appellate review.” Id. Because he failed to do so, the court

overruled his complaint. Id.; see also Proenza, 541 S.W.3d at 793 (“There is no

–9– common-law ‘fundamental error’ exception to the rules of error preservation

established by Marin.”).

The State responds that had appellant objected, the prosecutor could easily

have corrected her statement to add the “if any” limitation that appellant now

suggests would have been proper. And citing Draughon v. State, 831 S.W.2d 331,

336–37 (Tex. Crim. App. 1992), the State argues that “[i]mproper comments during

voir dire are not automatically considered to be a violation of the defendant’s right

to a fair jury or a fair trial.” In Draughton, the prosecutor during voir dire

characterized the victims and their families in the case as her “clients.” Id. at 336.

The defense failed to object. Id. Although explaining that the statement was

erroneous, the court concluded, “we do not regard the objectionable implication as

so threatening to the fairness of a criminal trial that the judge must intervene to

correct it even when not asked to do so by the defendant.” Id. The court continued,

Here, a curative instruction could easily have dissipated any potential for prejudice visited upon Appellant. And, since the statement complained of occurred at voir dire, the Appellant could even have inquired of the prospective jurors whether such statement would affect their deliberations. To allow an exception to our default rules under the circumstances presented here could actually serve to discourage timely objections. Id. at 337.

Similarly here, the trial court could have issued a curative instruction, and

prospective jurors could have been questioned about how the statement might affect

their deliberations. Further, the prosecutor made the statements when (1) explaining

–10– that evidence admitted at the punishment stage can help jurors determine appropriate

punishment by providing context about the defendant, the victim, and other matters,

(2) discussing the types of evidence the jury may be required to weigh in determining

appropriate punishment, and (3) answering a juror’s question about “the role of the

jury in the actual sentence itself.” “In light of the entire record, the prosecutor’s

statements did not constitute fundamental error because they neither bore on the

presumption of innocence nor vitiated the impartiality of the jury.” Dixon, 2022 WL

124568, at *13. We overrule appellant’s second issue.

3. Admission of testimony

In his third issue, appellant contends the trial court erred by overruling his

objection to Phillip’s testimony that Sparling received a “life saving award” for his

actions in assisting Doan on the night of the robbery. Sparling, however, had already

testified to this fact without objection.

We review a trial court’s ruling on the admissibility of evidence for abuse of

discretion. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

We “must uphold the trial court’s ruling if it is reasonably supported by the record

and is correct under any theory of law applicable to the case.” Id.

Appellant contends the evidence had no probative value and was highly

prejudicial, noting that the prosecutor mentioned the award in closing argument. The

State responds that because appellant failed to object to Sparling’s testimony about

–11– the award, any error in overruling the objection to Phillip’s testimony on the same

subject was harmless. We agree with the State.

As the court explained in Lane v. State,

[T]o preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection. In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.

151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (internal quotation omitted). We

conclude the trial court did not abuse its discretion by overruling appellant’s

objection to Phillip’s testimony. We overrule appellant’s third issue.

CONCLUSION

The trial court’s judgment is affirmed.

/Maricela Breedlove/ MARICELA BREEDLOVE JUSTICE

220555f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

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

WESLEY GERARD JONES, On Appeal from the Criminal District Appellant Court No. 7, Dallas County, Texas Trial Court Cause No. F-1942507-Y. No. 05-22-00555-CR V. Opinion delivered by Justice Breedlove. Justices Partida-Kipness THE STATE OF TEXAS, Appellee and Reichek participating.

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

Judgment entered this 31st day of October, 2023.

–13–