Opinion
10-23-00146-CR
02-01-2024
QUEST AL'JAVAUGHN JONES, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2019-516-C1.
Before Gray, Chief Justice, Johnson, Justice and Smith, Justice.
OPINION
STEVE SMITH, Justice.
Appellant, Quest Al'Javaughn Jones, was convicted of murdering Sherrell Carter and received a sixty-year prison sentence. See TEX. PENAL CODE ANN. § 19.02. In three issues on appeal, Jones contends that: (1) the trial court abused its discretion by admitting testimony about a telephone call made by Jones while he was in jail; (2) the trial court abused its discretion by permitting testimony during the guilt-innocence phase of trial that Jones was in a gang; and (3) the trial court erred by assessing $3,000 for court-appointed investigator fees in the bill of costs and judgment. We affirm.
The Jail Telephone Call
In his first issue, Jones asserts that the trial court abused its discretion by admitting testimony about a telephone call Jones made while incarcerated in the McLennan County Jail, which contained a threat that the same thing that happened to Carter, the victim in this case, would happen to Lacreshia Jackson, the mother of Jones's two oldest children.
STANDARD OF REVIEW
We review the trial court's admission of extraneous-offense evidence for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial court's ruling is within the zone of reasonable disagreement, there is no abuse of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court's ruling on the admissibility of an extraneous offense is generally within this zone if the evidence shows that: (1) an extraneous transaction is relevant to a material, nonpropensity issue; and (2) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. De La Paz, 279 S.W.3d at 344. "Furthermore, if the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his right ruling." Id.
Texas Rule of Evidence 404(b) expressly provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of the defendant in order to show he acted in conformity therewith. TEX. R. EVID. 404(b). This rule codifies the commonlaw principles that a defendant should be tried only for the offense for which he is charged and not for being a criminal generally. See Rogers v. State, 853 S.W.2d 32, n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (explaining that a defendant is generally to be tried only for the offense charged, not for any other crimes).
Extraneous-offense evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b). The list of examples in Rule 404(b) is not exhaustive. See Prible, 175 S.W.3d at 731. "Whether extraneous[-]offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court." Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court's Rule 404(b) ruling admitting evidence is generally within the zone of reasonable disagreement "if there is evidence supporting that an extraneous transaction is relevant to a material, non-propensity issue." Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
Here, Jones's defensive theory was that he did not kill Carter, but rather an intruder broke into the house and shot Carter and attempted to shoot him. In other words, Jones put identity at issue. To rebut Jones's defensive theory, the State called Jackson to testify about her prior relationship with Jones, as well as a telephone call she received from Jones after Jones had been arrested for this offense. Jackson described the telephone call, and the State presented a recording of the telephone call for admission into evidence. Jones objected to Jackson's testimony and the admission of the recording of the telephone call under Texas Rules of Evidence 403 and 404(b). The trial court overruled Jones's objections and admitted the testimony and the recording of the telephone call into evidence. The recording of the telephone call, which contained a threat made by Jones to Jackson that the same thing that happened to Carter would happen to Jackson was played for the jury.
An extraneous offense may be admissible to show identity when identity is at issue in the case, or when the defense cross examines witnesses or alleges that someone else committed the crime. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). The threat made in the telephone call demonstrated Jones's knowledge about what had happened to Carter and served as some evidence rebutting Jones's defensive theory that someone else murdered Carter. See TEX. R. EVID. 404(b). Because the complained-of extraneous-offense evidence was admissible for multiple proper purposes, we conclude that the evidence was relevant for more than just character conformity. See id.
Next, we address Jones's Rule 403 argument. Evidence, though relevant, can nonetheless be excluded when its probative value is substantially outweighed by the danger of unfair prejudice. See id. at R. 403. Once a trial court determines that extraneous offense evidence is admissible under Rule 404(b), the trial court must, on proper objection by the opponent of the evidence, weigh the probative value of the evidence against its potential for unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991); see TEX. R. EVID. 403. Rule 403 favors admitting relevant evidence, and the presumption is that relevant evidence will be more probative than unfairly prejudicial. Montgomery, 810 S.W.2d at 389. Unfair prejudice does not mean the evidence injures the opponent's case-"the central point of offering evidence." Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). "Rather[,] it refers to 'an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.'" Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).
Although not limited to the following enumerated factors, courts should balance the following under a Rule 403 analysis: (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. Prible, 175 S.W.3d at 733. The trial court is presumed to have conducted a proper balancing test if it overrules a Rule 403 objection, regardless of whether it conducted the test on the record. See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1995).
As stated earlier, Jones challenged the identity element of the charged offense. The State needed the complained-of extraneous-offense evidence because it was probative on the issue of identity, and because it rebutted Jones's defensive theory. See Moses, 105 S.W.3d at 626 (noting that rebuttal of a defensive theory is one of the permissible purposes for which extraneous-offense evidence may be admitted); see also Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim. App. 2005) (stating that extraneous offenses are admissible to rebut theories raised by testimony of a defense witness during direct examination or a State's witness during cross-examination). This is especially true considering there was no eyewitness to the shooting other than Jones. The record shows that very little time was spent on developing the complained-of extraneous-offense evidence, and there is nothing in the record demonstrating that this evidence impressed the jury in some irrational, yet indelible, way. Thus, we cannot say that the extraneous-offense evidence confused, distracted, or caused the jury to give the evidence undue weight.
Rule 403 "envisions exclusion of [relevant] evidence only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'" Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a "clear disparity" between the danger of unfair prejudice posed by the complained-of extraneous-offense evidence and its probative value. See id.; see also Conner, 67 S.W.3d at 202. Accordingly, we cannot conclude that the trial court abused its discretion by admitting this evidence over Jones's Rule 403 and 404(b) objections. See TEX. R. EVID. 403, 404(b); see also De La Paz, 279 S.W.3d at 343; Prible, 175 S.W.3d at 731. We overrule Jones's first issue.
Gang Testimony
In his second issue, Jones argues that the trial court abused its discretion by allowing Tydrick Busby, Carter's cousin, to testify that Jones was in a gang.
At trial, Busby was asked to describe the relationship between Jones and Carter. Busby responded that he "didn't like it." When asked why he did not like the relationship, Busby noted, "Because he was doing too much. He was in gangs, very hostile." This response elicited an objection from Jones that the testimony was not relevant and that there was "no basis for that type of testimony at this point." The State countered that the statement about Jones's purported gang membership described why Busby did not like the relationship and "the way that this relationship was going before the death." The State further argued that the testimony "goes directly to state of mind," although the State did not articulate whose state of mind. The trial court overruled Jones's objection and, without a request from Jones, issued the following instruction to the jury:
Ladies and gentlemen, any information that's being elicited in this line of questioning is for-can be used for proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or lack of accident.
On appeal, Jones asserts that this testimony should have been excluded because it is violative of Texas Rule of Evidence 404(b). To preserve error for appellate review, a complaining party must make a timely and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Texas courts have held that points of error must correspond or comport with objections and arguments made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex. App.-Texarkana 2005, pet. ref'd). "Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review." Wright, 154 S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding that an issue was not preserved for appellate review because appellant's trial objection did not comport with the issue he raised on appeal). Because Jones's relevance objection made in the trial court does not comport with his Rule 404(b) objection on appeal, we cannot say that he has preserved this complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1); Resendiz, 112 S.W.3d at 547; Dixon, 2 S.W.3d at 273; Wright, 154 S.W.3d at 241; see also Ukwuachu v. State, No. 10-15-00376-CR, 2022 Tex.App. LEXIS 7284, at *3 (Tex. App.-Waco Sept. 28, 2022, no pet.) (mem. op., not designated for publication) ("Ukwuachu's trial objection was based solely on relevance and did not preserve a Rule 403 or 404(b) objection for our review."). Accordingly, we overrule Jones's second issue.
Court-Appointed Investigator Fees
In his third issue, Jones complains that the trial court improperly assessed $3,000 for court-appointed investigator fees in the bill of costs and judgment.
Here, Jones was determined to be indigent, and as such, the trial court granted several requests for funds to secure the services of investigators. In particular, on May 3, 2023, the trial court signed a second order granting payment of interim requisition and allotment of additional funds for an investigator in the amount of $3,000. In the bill of costs, there is a line item in the section "Mandatory Reimbursement" indicating a charge for $3,000 in court-appointed investigator fees. However, the same line item also shows that the $3,000 in court-appointed investigator fees has been paid, leaving a $0 balance. Because the complaint in this issue is purely monetary, the voluntary payment of the investigator's fees rendered the issue moot. See Rios v. State, No. 10-21-00266-CR, S.W.3d, 2023 Tex.App. LEXIS 9344, at *4 (Tex. App.-Waco Dec. 14, 2023, no pet. h.) (mem. op., not designated for publication) (concluding that the voluntary payment of a fine and court costs rendered the issue moot) (citing Dulin v. State, 620 S.W.3d 129, 131 (Tex. Crim. App. 2021)). We therefore overrule Jones's third issue.
Conclusion
Having overruled all of Jones's issues on appeal, we affirm the judgment of the trial court.
Affirmed.
CONCURRENCE
TOM GRAY, Chief Justice.
In the third issue in this proceeding, the appellant complains that $3,000 of fees for an investigator are improperly assessed against him in the judgment as court costs. The Court, however, holds that the issue is moot because the costs were voluntarily paid. First, the investigator's fees are simply not assessed against the appellant in the judgment at all. They are not there by incorporation or otherwise. Thus, the judgment cannot be in error for improperly including the investigator fees. Second, there is no evidence that "payment" was actually made, or if payment was made, it was voluntarily made.
This case presents a good example of why we should limit our review to the trial court's judgment and not attempt to address alleged errors in the clerk's bill of costs in a direct appeal of the trial court's judgment. If there is nothing wrong with the trial court's judgment, we should overrule the issue and affirm the judgment; or, if there is something wrong with the judgment that we are authorized to fix, then we should fix it.
In this proceeding, the trial court made no error with regard to the challenged item of costs because it is not assessed in the judgment; thus, any problem with regard to that particular billed item is solely due to the district clerk's actions. If any entity, including TDCJ, tries to collect what is not owed as determined by the trial court's judgment due to the clerk's actions, the inmate can bring that issue to the attention of the trial court by one of the other available procedures; and if the trial court fails to fix the errors of the clerk, then the inmate can appeal that trial court error to this Court in a proper manner, on a proper record, and at the proper time. Accordingly, because the investigator's fees are not assessed as court costs in the trial court's judgment, the issue should be overruled on that basis.
Finally, I note that the issue is not moot. The Court's opinion turns on a finding that there was a voluntary payment of the investigator's fees which is the basis of the Court's holding that the issue is moot. The only "evidence" of any payment in the record is a column heading and entry on a document that is labeled a bill of costs. (CR 232, CR 234, CR 250). The document evidences an "amount paid" of $3,000 against the amount of $3,000 owed for the "Ct. Appt Investigator."
None of the documents are properly certified as a bill of costs. The document at CR 232 is purportedly attached to the judgment. But it cannot be part of the judgment because it was not created until 3 days after the judgment was signed. The document at CR 234 is attached to a document titled "Order to Withdraw Funds" which purports to be inversely incorporated into the trial court's judgment. But the attachment cannot be part of the Order because, like the judgment, the attachment was not created until 3 days after the trial court signed the Order. And the document at CR 250, which is indexed in the Clerk's record as a Certified Bill of Costs, like the attachments, is not actually certified. Indeed it could not be properly certified because it includes the fine, and fines do not belong in a bill of costs.
But, even if there was, in fact, evidence of a "payment" for an erroneously assessed "cost," it was made under protest; and that payment should be refunded to the appellant or applied to other properly assessed costs or the fine. However, on this record, I would not reach that issue. The issue should be overruled because the appellant has not shown error in the trial court's judgment.
Since the Court's judgment affirms the trial court's judgment, it reaches the correct result, notwithstanding it is for the wrong reason.
Accordingly I concur in the Court's judgment.