Opinion
No. 06-17-00021-CR
06-29-2017
DANIEL PHILIP ARNOLD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court Franklin County, Texas
Trial Court No. F-9140 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
During the course of a case filed by Child Protective Services (CPS) concerning his young sons, J—h A. and J—a A., Daniel Philip Arnold failed to honor CPS's request that he submit himself and his sons to hair-follicle drug screens. CPS then sought, and obtained, an order from the trial court in the CPS case requiring Arnold to immediately submit himself and his sons to hair-follicle drug tests as arranged by CPS. One week later, when Arnold presented his sons and himself for the drug tests at a clinic arranged by CPS, Arnold had freshly shaved his entire body, and his sons had recent, short haircuts. Consequently, the clinic was not able to perform a hair-follicle drug test on Arnold, and it was barely able to obtain enough hair from each of his sons to perform their drug tests. Because of his actions, Arnold was convicted by a Franklin County jury of three counts of tampering with physical evidence and was sentenced to ten years' imprisonment on each count, to run concurrently. This appeal comes from Arnold's conviction regarding tampering with J—h A.'s hair.
The CPS case concerning the sons is cause number 12011 in the 62nd Judicial District Court of Franklin County. Pursuant to Rule 9.10 of the Texas Rules of Appellate Procedure, we will refer to the sons by their initials. See TEX. R. APP. P. 9.10.
See TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2016).
In our companion cause numbers 06-17-00022-CR and 06-17-00023-CR, Arnold appeals his convictions for tampering with J—a A.'s hair and his own hair, respectively.
In his sole point of error, Arnold complains that the trial court erred in admitting the testimony of Deputy Brantin Carr concerning an extraneous wrongful act by Arnold. We find that, even if the trial court erred, its error was not reversible. However, because the trial court's judgment reflects that Arnold was assessed attorney fees for his court-appointed attorney, we will modify the judgment to remove the assessment of attorney fees and affirm the judgment, as modified.
No Reversible Error in the Trial Court's Admitting Testimony of an Extraneous Wrongful Act
At trial, Carr testified that he accompanied Chastine Gray, an investigator for CPS, to Arnold's house on March 14, 2016, to serve the court order that had been issued in the CPS case. As previously mentioned, the court order required Arnold to submit himself and his two sons to hair-follicle drug tests as arranged by CPS. Carr testified that they delivered the order in the late afternoon or evening and described Arnold that day as having a thin, hollowed out face with black bags under his eyes.
Carr then testified of an occasion approximately one week earlier in which he observed Arnold at a local supermarket, testimony which is the subject of Arnold's complaint. In that testimony, Carr testified that, while he was shopping, he observed Arnold making a lot of gestures and sudden movements back and forth, apparently trying to decide which aisle to go down. He also testified that, in his experience in law enforcement, he had encountered individuals under the influence of narcotics and other drugs exhibit signs of tweaking. Carr described the signs of tweaking as a lot of unintentional hand movements, jerking, a lot of face grinding, and a lot of talking to oneself. He opined that Arnold was tweaking that day based on Arnold walking back and forth and having jerking movements. On cross-examination, Carr acknowledged that Arnold did not exhibit all the signs of tweaking and testified that it was possible that Arnold had been in a "very quick hurry."
The trial court admitted Carr's testimony, but gave a limiting instruction that the jury was to consider the testimony only for the purposes of showing Arnold's intent to impair the availability of evidence and only if it found beyond a reasonable doubt that the wrongful act happened.
Arnold asserts that admission of the extraneous wrongful act testimony violated Rule 404(b)(1) of the Texas Rules of Evidence, which forbids the admission of evidence of extraneous wrongful acts to prove a person's character or to show that he acted in conformity with that character. TEX. R. EVID. 404(b)(1). He also asserts that any probative value of the evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. See TEX. R. EVID. 403. Even were we to assume, without deciding, that the trial court erred in admitting Carr's testimony, we find no reversible error.
Admitting evidence in violation of a rule of evidence is considered non-constitutional error. See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Unless it affects a substantial right of the defendant, non-constitutional error must be disregarded. TEX. R. APP. P. 44.2(b); Warr v. State, 418 S.W.3d 617, 621 (Tex. App.—Texarkana 2009, no pet.). We will not overturn a conviction for non-constitutional error if, after examining the whole record, we have "fair assurance that the error did not influence the jury, or had but a slight effect." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). Improper admission of evidence is rendered harmless and is not reversible error if other unchallenged evidence proves the same facts. Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986); Murphy v. State, No. 12-07-00368-CR, 2009 WL 2450990, at *2 (Tex. App.—Tyler Aug. 12, 2009, pet. ref'd) (mem. op., not designated for publication); Warr, 418 S.W.3d at 621.
By opining that Arnold was tweaking at the supermarket, and by associating tweaking with drug use, Carr left the jury with the implication that Arnold was using drugs shortly before the tampering incident. However, there was other testimony that implied that Arnold was using drugs during the same time period. Gray testified that, on February 23, 2016, at a family team meeting, Arnold's physical appearance was very diminished and that he had black circles under his eyes. She testified, without objection, that black circles are one of the many signs of methamphetamine use. Gray also testified that, on March 14, when she served Arnold with the court order, Arnold's physical appearance had diminished further and that the circles around his eyes were darker, again implying his continued drug use. On this record, the admission of Carr's testimony was harmless. See Anderson, 717 S.W.2d at 628. Finding no reversible error, we overrule Arnold's point of error.
Attorney Fees Should Not Have Been Assessed
Article 26.05(g) of the Texas Code of Criminal Procedure provides that a trial court has the authority to order the reimbursement of court-appointed attorney fees only if "the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided . . ., including any expenses and costs." TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2016). "[T]he defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees" of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). In this case, because there was no finding that Arnold had the financial resources and ability to pay them, the assessment of attorney fees was erroneous. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946-47 (Tex. App.—Texarkana 2013, no pet.).
The record shows that Arnold was appointed counsel both at trial and on appeal. Nevertheless, the trial court, when pronouncing Arnold's sentence, stated, "[Y]ou were indigent to the point that you could not hire an attorney, I am going to find that you are capable, if given a reasonable opportunity, to make payments to repay the attorney's fees." This does not constitute a finding that, nor in our review of the record do we find any evidence that, Arnold had the financial resources and ability to pay the court-appointed attorney fees.
This Court has the power to correct and modify the judgment of the trial court sua sponte for accuracy when the necessary data and information are part of the record. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd) ("The authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court."). Therefore, we modify the trial court's judgment by deleting the assessment of attorney fees.
As modified, we affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice Date Submitted: June 6, 2017
Date Decided: June 29, 2017 Do Not Publish