Opinion
NO. 03-18-00540-CR
04-30-2024
Anthony RUFFINS, Appellant v. The STATE of Texas, Appellee
John G. Jasuta, Attorney at Law, Austin, TX, for appellant. Joshua D. Presley, Assistant District Attorney, Sammy McCrary, Clayten H. Hearrel, Assistant Criminal District Attorney, Comal County Criminal District Attorney’s Office, New Braunfels, TX, for State.
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY, NO. CR2016-614, THE HONORABLE DWIGHT E. PESCHEL, JUDGE PRESIDING
John G. Jasuta, Attorney at Law, Austin, TX, for appellant.
Joshua D. Presley, Assistant District Attorney, Sammy McCrary, Clayten H. Hearrel, Assistant Criminal District Attorney, Comal County Criminal District Attorney’s Office, New Braunfels, TX, for State.
Before Chief Justice Byrne, and Justices Baker and Kelly
OPINION
Chari L. Kelly, Justice
Anthony Ruffins was charged with the offense of aggravated robbery. See Tex. Penal Code §§ 29.02, .03. The multi-count indictment alternatively alleged that Ruffins was guilty as a principal, as a party to the offense, and as a conspirator. The indictment also contained enhancement paragraphs alleging that Ruffins had four prior felony convictions. See id. § 12.42. At the end of the guilt-innocence phase of trial, the jury found Ruffins guilty of the charged offense. Ruffins elected to have the trial court assess his punishment, and the trial court found the enhancement allegations to be true and sentenced him to life imprisonment. See id. In eleven issues on appeal, Ruffins asserted that the trial court erred by including multiple errors in the jury charge, failing to grant his motion for new trial, making a deadly weapon finding in its judgment, and imposing more court costs than were authorized. This Court sustained Ruffins’s first issue on appeal and concluded that there was error in the portion of the jury charge setting out one of the accomplice-witness instructions, determined that Ruffins was harmed by the error, and reversed the judgment of conviction. See Ruffins v. State, 613 S.W.3d 192, 197-204 (Tex. App.—Austin 2020) ("Ruffins I"). The State appealed this Court’s decision, and the Court of Criminal Appeals reversed our opinion after concluding that Ruffins was judicially estopped from presenting his first issue on appeal and remanded the case for this Court to address his remaining issues. See Ruffins v. State, 666 S.W.3d 636, 643 (Tex. Crim. App. 2023) ("Ruffins II") On remand, we will affirm the trial court’s judgment of conviction.
During the trial, the State abandoned six of the twelve alternative allegations.
BACKGROUND
Ruffins was charged with committing aggravated robbery at a tattoo shop in New Braunfels, Texas. The indictment alleged that the following individuals also were involved: codefendants Olanda Taylor, Robert Ruffins, and Kenneth McMi- chael. The alleged victim in this case was Sarah Zamora, who worked at the shop with her husband. At the time of the offense, a customer, Tony Hernandez, was in the shop. During the guilt-innocence phase, Zamora and Hernandez both testified. In addition, two law-enforcement officers—Detectives Richard Groff and John Mahoney—testified regarding their investigation in this case. Further, codefendant Gustavo Trevino provided testimony regarding the robbery, including his role in facilitating the robbery, and David Hogarth testified regarding his knowledge of events leading up to and following the robbery. Audio and visual recordings from surveillance cameras inside the shop were also admitted into evidence.
Because Robert Ruffins and Anthony Ruffins share the same surname, we will refer to Robert Ruffins by his first name for ease of reading.
The surveillance footage showed four African American men wearing masks entering the shop at night while carrying handguns with several of the men wearing gloves. One man was wearing a white hat. A second man was wearing a dark shirt. The third man was wearing shorts with a red stripe. And the fourth man was wearing shorts with a white stripe. In addition, the footage showed the man in the white hat kick Zamora in the head before pointing a gun at her head and directing her to a cash register and to a safe and showed the man remove the safe from a cabinet before the man in the dark shirt placed the safe in a bag. The man in the white hat and the other three men are seen repeatedly kicking Hernandez’s head and using their pistols to hit his head before dragging him around the floor. The footage shows the man in the dark shirt, the man wearing shorts with a red stripe, and the man wearing shorts with a white stripe leaving the shop and one of those men stating that it was time to leave before the man in the white hat is seen walking down the stairs and leaving the shop.
Zamora and Hernandez testified about the events on the night in question and the injuries that they and Zamora’s husband sustained, but neither was able to identify Ruffins as one of the offenders. Zamora and Hernandez both testified that the offenders took their cell phones.
After Zamora and Hernandez testified, Detective Groff explained that in his initial investigation of this case, he used the "Find My iPhone" app to locate the two stolen phones and determined that the phones were in the custody of a woman and her son who lived at the Palms Apartments in San Antonio. Detective Groff testified that the woman explained that codefendant Taylor had given her the phones. Detective Groff also stated that the police found a safe in the dumpster of the apartment complex and that the safe was consistent with the one stolen from the tattoo shop.
Next, Detective Mahoney testified that his investigation in this case led him to believe that the following people were involved in the robbery: Ruffins and codefendants Taylor, McMichael, Trevino, and Robert. Further, Detective Mahoney stated that he learned through his investigation that Taylor, Robert, and Ruffins were all related. Next, Detective Mahoney stated that his review of surveillance footage of businesses near the tattoo shop showed a white Volvo driving toward the shop shortly before the robbery, and he learned in his investigation that codefendant Trevino owned a white Volvo.
Additionally, Detective Mahoney testified that he interviewed codefendant Taylor after the cell phones had been recovered and after Taylor had been arrested for a separate offense. Taylor provided information furthering his investigation. During his investigation, he reviewed Taylor’s Facebook page to attempt to identify other suspects in the case, and his social media search led him to the Facebook pages for Ruffins and codefendants Robert and McMichael. Detective Mahoney related that he learned from Ruffins’s page that Ruffins’s nickname was "Poohbear," and when Detective Mahoney listened to the surveillance footage from the tattoo shop, he heard someone say, "Let’s go, let’s go, Poohbear" before the man in the white hat came down the stairs and then later heard someone say "Pooh." Detective Mahoney described how Ruffins referred to codefendant McMichael as his "shooter" in a Facebook post months before the offense in which Ruffins used emojis for knives, guns, money, and money bags. Further, Detective Mahoney explained that his online research of the Facebook pages showed pictures of Ruffins and codefendants Robert and Taylor each wearing a white hat similar to the one in the surveillance footage. Detective Mahoney stated that although the four men in the surveillance footage were wearing masks, the footage captured a unique tattoo on one of the men’s arms, and Detective Mahoney explained that codefendant McMichael had a tattoo on his arm that looked like the one in the surveillance footage.
Moreover, Detective Mahoney testified that he learned from the Palms Apartments’ residents that Hogarth was linked with some of the individuals discussed above and that Detective Mahoney saw Ruffins talking with Hogarth when he drove to the apartment complex to talk to Hogarth but that Ruffins left before Detective Mahoney approached Hogarth. Detective Mahoney stated that he learned that Hogarth had information related to the robbery and that he obtained a search warrant for Hogarth’s phone. The search of the phone revealed a text thread between Hogarth and codefendant Trevino in which Trevino told Hogarth what to tell the police and told Hogarth to get a lawyer. Further, Detective Mahoney testified that Hogarth initially was uncooperative and lied to the police about whether he knew anything about the offense but later cooperated with the police by providing information about the offense and those involved. Similarly, Detective Mahoney related that Hogarth stated that he was afraid of Ruffins and that Ruffins had threatened to hurt him if he testified. Moreover, Detective Mahoney testified that he believed that Hogarth told Trevino’s wife not to cooperate with the police. Detective Mahoney stated that Hogarth told him that he went to the tattoo shop with codefendants Taylor and Trevino days before the offense but that he did not learn that Taylor and Trevino were planning to rob the shop until they were driving home from the shop. When describing Hogarth’s involvement in this case, Detective Mahoney testified that there was no evidence that Hogarth encouraged anyone to participate in the robbery or aided or attempted to aid anyone in the commission of the robbery.
Furthermore, Detective Mahoney stated that a search of Ruffms’s father’s apartment at the Palms Apartments led to the discovery of a gun and a pair of gloves. Additionally, Detective Mahoney recalled that when he showed codefendant Robert’s mother a picture of the masked man in the white hat from the surveillance footage of the tattoo shop, she stated that the man was Robert and not Ruffins. Regarding Ruffins’s arrest, Detective Mahoney stated that Ruffins did not react when shown the violent footage from the robbery. Further, Detective Mahoney testified that while Ruffins denied any involvement in the case, he also made unusual statements such as "[i]f you say I did it, I did it." Detective Mahoney related that Ruffins stated that he was with his girlfriend, Shante Benton, on the night of the offense but did not provide her contact information. When discussing Benton, Detective Mahoney mentioned that his search of Ruffins’s Facebook page indicated that he was romantically involved with Benton, but Detective Mahoney did not attempt to contact Benton as part of his investigation.
In his testimony, Hogarth explained that he lived at the Palms Apartments around the time of the offense and that he associated with Ruffins and codefendants Taylor, Robert, and Trevino. Hogarth stated that Trevino and Taylor decided to rob Trevino’s cousin’s tattoo shop and that he rode with Trevino and Taylor to the tattoo shop days before the offense occurred, but he testified that he did not know it was a scouting mission until after the trio were almost to the tattoo shop and that he did not go inside the shop. Additionally, Hogarth related that he was present during conversations in which Taylor, Robert, Ruffins, and Trevino made plans to rob the shop and that Ruffins recruited codefendant McMichael to help. Regarding the night of the offense, Hogarth recalled that he saw McMichael, Trevino, Taylor, and Ruffins drive off in a white Volvo. Hogarth related that he thought about going with the others on the night of the robbery but that he decided not to go because he was worried what would happen to his son if he were caught. Hogarth also admitted that he did not do anything to stop the robbery. However, he clarified that he did not solicit, encourage, or direct anyone to partake in the robbery and further denied aiding or attempting to aid in the robbery. When he was shown a photo from the surveillance footage of the masked man in the white hat, Hogarth testified that the man in the photo was Ruffins and that Ruffins always wore that hat. But Hogarth also admitted on cross-examination that he previously told the police that he would just be guessing when asked the identity of the man in the white hat and that the man in the photo looked like someone other than Ruffins. Relatedly, Hogarth explained that although the men wore masks, he recognized the men when watching the surveillance footage by how they moved and how they sounded. Hogarth also related that he ultimately told the police everything he knew about the robbery but that he initially avoided telling the police anything because Ruffins threatened to hurt him if he testified and because he was afraid for his family and himself.
When called to testify, codefendant Trevino explained that he had already been convicted for his role in the tattoo shop robbery and that he entered into an agreement with the State in which he agreed to testify in this case in exchange for the State not recommending a punishment in his case in the hopes of a lesser punishment. Trevino also testified regarding his extensive criminal history. Further, Trevino related that his cousin owned the tattoo shop and that he decided to rob the shop because he needed money. Additionally, Trevino said that before the robbery he drove by the tattoo shop with Hogarth and codefendant Taylor, that he discussed the possibility of robbing the shop, that Hogarth was not part of the plan and just overheard the conversation between Trevino and Taylor, that Hogarth did not help anyone commit the robbery, and that he told Hogarth to get a lawyer and not talk to the police after the robbery. Regarding the offense, Trevino testified that he drove to the tattoo shop in his white Volvo with Ruffins and codefendants Taylor, McMichael, and Robert. Further, he related that the four passengers put on masks and gloves and had their guns ready and stated that Ruffins was wearing a white hat. Trevino also testified regarding an incident earlier that day in which Hogarth told him about someone who was selling drugs and in which Trevino and other individuals went to the dealer’s house and tried to break in, but Trevino explained that no crime ultimately occurred.
After the State finished its case in chief, Ruffins called Benton to the stand. In her testimony, Benton explained that she was dating Ruffins around the time of the offense, that he was with her the entire night of the robbery, and that she remembered the night of the offense because that night she was planning a birthday party for one of her children scheduled for the following day.
Once both sides rested, the jury charge was prepared. The charge contained an accomplice-as-a-matter-of-law instruction for Trevino and an accomplice-as-a-matter-of-fact instruction for Hogarth. After considering the evidence, the jury found Ruffins guilty of aggravated robbery.
Following his conviction, Ruffins filed a motion for new trial. At a hearing on the motion, one of Ruffins’s trial attorneys testified. Additionally, the trial court admitted into evidence affidavits and a report by an audiology expert who reviewed the surveillance footage after trial. After considering the evidence and arguments by the parties, the trial court denied the motion for new trial.
Ruffins appealed his conviction to this Court, asserting eleven issues in his briefs. See Ruffins I, 613 S.W.3d at 194. The majority of the Court sustained his first issue after concluding that there was error in the jury charge setting out the accomplice-witness instructions for Hogarth because it required the jury to conclude that Hogarth was an accomplice beyond a reasonable doubt before requiring corroborating evidence and that the error egregiously harmed Ruffins. Id. at 197-204. One of the justices on the panel dissented and concluded that Ruffins was estopped from presenting that issue on appeal. Id. at 204-10 (Goodwin, J., dissenting). One of the justices in the majority filed a separate concurring opinion expressing his belief that Ruffins correctly identified in his fifth issue another error in the accomplice-witness instructions for Hogarth and Trevino and that this additional error also egregiously harmed Ruffins. Id. at 217-22 (Baker, J., concurring). The State appealed this Court’s decision, and the Court of Criminal Appeals concluded that Ruffins was estopped from asserting his first issue on appeal because he accepted the reasonable-doubt instruction in the charge. See Ruffins II, 666 S.W.3d at 643. Accordingly, the Court of Criminal Appeals reversed this Court’s opinion and remanded the case to allow this Court to address Ruffins’s ten remaining issues on appeal.
DISCUSSION
In his second through fifth issues on appeal, Ruffins asserts that the jury charge contained multiple errors. In his sixth through ninth issues, he contends that the trial court erred by denying his motion for new trial and by failing to issue findings of fact and conclusions of law regarding its ruling on his motion. In his tenth issue, he argues that the trial court erred by including a deadly weapon finding in its judgment of conviction. In his final issue on appeal, he urges that the trial court erred by imposing more court costs than were authorized.
Jury Charge Error
Accomplice Witness Instruction for Hogarth
In his second through fourth issues, Ruffins asserts that there were errors in the trial court’s jury charge setting out the accomplice-witness instructions for Hogarth. See Tex. Code Crim. Proc. art. 38.14. The requirement for accomplice-wit- ness instructions comes from article 38.14 of the Code of Criminal Procedure, which provides that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Id. As set out above, the instruction for Hogarth was for accomplice as a matter of fact, and it reads, in relevant part, as follows:
You must determine whether David Hogarth is an accomplice to the crime of aggravated robbery, if it was committed. If you determine that David Hogarth is an accomplice, you must then also determine whether there is other evidence corroborating the testimony of David Hogarth.
An accomplice is someone whose participation in the crime would permit his conviction for the crime alleged in the indictment.
A person’s participation in the crime permits the person’s conviction for the crime if
1. The person and the defendant, acting together, committed the crime; or
2. the person both
a. solicited, encouraged, directed, aided, or attempted to aid the defendant in committing the crime; and
b. acted with the intent to promote or assist the commission of the offense; or
3. the person
a. had a legal duty to prevent commission of the offense, and
b. failed to make a reasonable effort to prevent the offense, and
c. acted with the intent to promote or assist the commission of the offense; or
4. it can be shown that
a. the person joined with the defendant in a conspiracy to commit a felony, and
b. the defendant committed the offense in furtherance of the unlawful purpose of that conspiracy, and
c. the offense was one that should have been anticipated as a result of the carrying out of the conspiracy.
A person is not responsible for an offense committed by another if the person is merely present while the other commits the offense.
If you find beyond a reasonable doubt that David Hogarth is an accomplice to the crime of aggravated robbery, you must consider whether there is evidence corroborating the testimony of David Hogarth. The defendant, Anthony Ruffins, cannot be convicted on the testimony of David Hogarth unless the testimony is corroborated.
In his second issue, Ruffins contends that the charge above was erroneous because it defined an accomplice as someone who could have been convicted of the crime alleged in the indictment rather than as someone who could have been charged for that offense, which Ruffins contends improperly elevated the amount of proof needed to establish that Hogarth was an accomplice and invoke the need for corroboration. In his third issue, Ruffins argues that the jury charge was erroneous because although it specified that Hogarth could have been an accomplice of the offense of the charged aggravated robbery, it failed to state that Hogarth could have been an accomplice if he was culpable of a lesser-included offense of the charged offense "such as theft, robbery, or attempted robbery." In his fourth issue, Ruffins asserts that the charge was erroneous because although it included instructions for culpability under the law of parties, the instructions failed to explain to the jury "that the felony that was the subject of the conspiracy could [have been] different than the offense that was actually committed" and "that Hogarth did not have to intend the felony that was actually committed," meaning that "the charge incorrectly communicated to the jury that Hogarth had to both conspire to commit, and intend to commit aggravated robbery." Further, Ruffins insists that these three charge errors, either alone or together, egregiously harmed him. In response, the State contends that there were no errors in the jury charge and that Ruffins was not harmed if there were charge errors.
[1] As set out above, this Court previously addressed Ruffins’s first issue concerning another alleged error regarding the accomplice-witness instructions for Hogarth, and given our resolution of that issue, we did not need to address the second through fourth issues. See Ruffins I, 613 S.W.3d at 197-204. Similarly, because the Court of Criminal Appeals determined that Ruffins was judicially estopped from presenting his first issue, it also did not address these issues. See Ruffins II, 666 S.W.3d at 641-43. The concurring opinion in Ruffins II disagreed with the majority’s conclusion that Ruffins was estopped from presenting his first issue but concurred in the result reached by the majority after concluding that Ruffins "was not entitled to an accomplice witness instruction at all." See id. at 643 (Yeary, J., concurring). We agree with the analysis from the concurring opinion in Ruffins II.
Although the majority in Ruffins I previously disagreed with the suggestion that the accomplice-witness charge was not necessary when addressing Ruffins’s first issue, Ruffins v. State, 613 S.W.3d 192, 202 n.2 (Tex. App.— Austin 2020) ("Ruffins I"), that opinion was reversed by the Court of Criminal Appeals, Ruffins v. State, 666 S.W.3d 636 (Tex. Crim. App. 2023) ("Ruffins II");, see also Hearn v. RJ. Reynolds Tobacco Co., 279 F. Supp. 2d 1096, 1111 (D. Ariz. 2003) (observing that "reversed opinions carry no precedential value"). Moreover, the concurring opinion in Ruffins II provided additional clarification for why no instruction was warranted. See Ruffins II, 666 S.W.3d at 646-57 (Yeary, J., concurring).
As support for its conclusion, the concurring opinion discussed how Trevino, who had been convicted of the charged offense as a co-defendant and who testified as an accomplice as a matter of law, testified that Hogarth was not involved in the planning of the offense and "was more like … a hang-around type of guy." Id. at 648 n.6. Next, the concurrence set out the following evidence from trial:
A few days prior to the robbery, Trevino and Taylor traveled from San Antonio to New Braunfels to drive by the tattoo shop on a scouting mission. Trevino testified that Hogarth "just happened to be in the car" at that time. Hogarth did not take part in the planning, according to Trevino, but instead only overheard the conversation between Trevino and Taylor. Nor was Hogarth present for the actual robbery, although he was present when the robbers left to go commit it. Trevino also testified that, prior to the tattoo shop robbery, Hogarth had suggested that they commit a different robbery or burglary, but that suggested crime ultimately "didn’t happen" for undisclosed reasons. Trevino acknowledged on cross-examination that, after the robbery, he contacted Hogarth to discourage him from cooperating with police and encourage him to "get a lawyer." Trevino agreed with defense counsel that, because Hogarth had been in the car when they scouted the tattoo shop, he also "had some exposure" in the case and could be guilty as a party to the robbery. On re
direct, Trevino insisted that Hogarth never directed, solicited, encouraged, aided, or attempted to aid anyone in the commission of the tattoo shop robbery. He explained that he had suggested Hogarth retain a lawyer because he knew Hogarth had knowledge of the robbery and hoped a lawyer would deflect the police investigation. Trevino did not expect Hogarth to be arrested for the robbery.
…
During the investigation, Mahoney discovered that Hogarth likely had relevant information regarding the robbery. Initially, Hogarth was deceptive and uncooperative with police. He said he would provide Mahoney his cell phone, but ultimately did not, and Mahoney eventually had to obtain a search warrant for it instead. Moreover, somebody whom Mahoney believed to be Hogarth had reportedly told Trevino’s wife, "Don’t say anything"—presumably to the police. Mahoney believed Hogarth had been threatened by Appellant and was afraid to tell the truth. Eventually Hogarth told Mahoney that he had gone to the tattoo shop with Taylor and Trevino several days prior to the robbery, but that he had not known when they left that it was a scouting mission. Mahoney ultimately concluded that Hogarth was not involved in, did not encourage anyone to participate in, and did not aid or attempt to aid in, the commission of the tattoo shop robbery.
Hogarth himself testified that he did not participate in the robbery of the tattoo shop, while also admitting that he did nothing to prevent it from occurring. He further testified that he did not realize on the way to New Braunfels that the purpose of the trip was to scout the tattoo shop, and only learned about it when Trevino mentioned wanting to do "a lick" at some point in the car. He denied going into the tattoo shop when they drove by to scope it out. Instead, he claimed he went to a corner store to get a drink. He was present during later conversations between Appellant, Taylor, Robert Ruffins, and Trevino when they made their plans to commit the robbery, and he considered joining them. But he insisted that, once he learned about the plan for the robbery of the tattoo shop, he did not ultimately solicit or encourage anybody to partake in, direct anybody to commit, or himself aid in the commission of, the robbery in any way. He claimed to have avoided speaking to detectives about the robbery because he feared for his life and his family’s life, having been threatened by Appellant should he ever talk about the robbery. He identified Appellant as being among the robbers as depicted on the store surveillance video.
Id. at 648-52 (footnotes omitted).
In light of this summary of the evidence, the concurrence explained that "[t]here was no evidence that Hogarth was a principal actor in the tattoo shop robbery." Id. at 653. The concurrence noted that the trial court provided an instruction under "the so-called ‘party-conspirator theory’ embodied in Section 7.02(b) of the Texas Penal Code" and that Ruffins argues that this provision applies. Id. at 653 n.12. That portion of the law of parties explains as follows:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. In this
subsection, "conspiracy" means an agreement between two or more persons to commit a felony.
Tex. Penal Code § 7.02(b); see also Zamora v. State, 411 S.W.3d 504, 512 (Tex. Crim. App. 2013) (concluding that accomplice witness rule of article 38.14 includes "the party-conspirator theory" of parties found in subsection 7.02(b) of Penal Code). However, the concurrence observed that Ruffins "did not explain in what way the evidence raised this conspiracy-based theory of parties." Ruffins II, 666 S.W.3d at 653 n.12. Accordingly, the concurrence explained that if Hogarth "was an accomplice witness, it must have been established by virtue of vicarious liability under Section 7.02(a)(2) of the Penal Code, for having solicited, encouraged, directed, aided, or attempted to aid others in its commission." Id. at 653 (citing Tex. Penal Code § 7.02(a)). In other words, "[i]f he had any criminal liability for the tattoo shop robbery at all, it must have been because of some affirmative act or acts committed before or after that offense." Id. at 653-54. However, the concurrence determined that "the direct evidence is to the contrary." Id. at 654.
In particular, the concurrence noted that Hogarth, Trevino, and Detective Mahoney "all denied" that "Hogarth did anything leading up to or following the tattoo shop robbery to promote its commission." Id. Although the concurrence acknowledged that Hogarth seemed to initially admit to participating "in the scouting mission prior to the robbery," it explained that "subsequent testimony clarified that he was testifying from hindsight on those occasions, and that as of the time the trio set out on the scouting mission, Hogarth was unaware of the purpose of, and was merely present during, that trip." Id. "There is no direct testimony that he committed any affirmative act to promote the robbery during that excursion. There is likewise an absence of evidence that he played any active part in any subsequent planning among the robbers; all that the record reveals, including Trevino’s testimony, is that Hogarth was merely present for that as well." Id.
Although the record shows that Hogarth "both failed to disclose his knowledge of the plan to rob the tattoo shop beforehand and that he was evasive and deceptive with the police during their investigation afterwards," those circumstances "[i]n isolation" do not establish "an affirmative act sufficient to render him an accomplice witness." Id. at 654-55; see also Medina v. State, 7 S.W.3d 633, 642 (Tex. Crim. App. 1999) (explaining that witness who was member of gang involved in gang-related murder and who helped conceal murder afterwards was not accomplice witness where there was no evidence he was present when murder was committed); Smith v. State, 721 S.W.2d 844, 851 (Tex. Crim. App. 1986) (concluding that witness was not accomplice witness even though evidence showed that he was present at murder, suggested where to dispose of body, and helped with disposal). "Hogarth was … not present for the tattoo shop robbery; his failure to disclose it beforehand or to report it afterwards does not make him an accomplice." Ruffins II, 666 S.W.3d at 655. Similarly, even though testimony at trial established that Hogarth may have proposed a different unrelated offense to the robbers or had been involved in a different offense on the night of the tattoo shop robbery, "an affirmative act to commit a different offense, other than the one on trial, does not make a witness an accomplice." Id.; see Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987) ("If a State’s witness has no complicity in the offense for which an accused is on trial, his or her testimony is not that of an accomplice witness whatever may have been his complicity with the accused in the commission of other offenses.").
The concurring opinion stated that Ruffins, as he does here, asserted that the jury could have inferred that Hogarth solicited, encouraged, directed, aided, or attempted to aid in the commission of the tattoo shop robbery for several reasons. Ruffins II, 666 S.W.3d at 655; see Tex. Penal Code § 7.02(a). First, Ruffins contends that "under the ‘doctrine of chances,’ the fact that Hogarth would involve himself in the planning of one offense makes it more likely he was actively involved in the planning of another." Ruffins II, 666 S.W.3d at 655; see De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009) ("The ‘doctrine of chances’ tells us that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance."). Next, Ruffins asserts that Hogarth’s conduct in which he refused to cooperate with and obstructed the investigation in this case showed a consciousness of guilt, which Ruffins contends tends to show that Hogarth was a party to the charged aggravated robbery. See Ruffins II, 666 S.W.3d at 655.
However, the concurrence reasoned that "even in the aggregate, the circumstances of this case do not show that Hogarth engaged in an affirmative act to promote the tattoo shop robbery." Id.; see also Kunkle v. State, 771 S.W.2d 435, 441 (Tex. Crim. App. 1986) (explaining that "any connection" witness "had with" another offense in which man at convenience store was robbed "would not render him an accomplice to [the capital murder] in the absence of some evidence showing [his] complicity with the commission of the [capital] murder"). On the contrary, the concurrence noted that the Court of Criminal Appeals has determined in cases involving circumstances like the present case but with the additional factor of the witnesses being present at the scene when the offenses were committed, that the evidence failed to establish that the witnesses were accomplices. Ruffins II, 666 S.W.3d at 655-56; see Druery v. State, 225 S.W.3d 491, 496, 499, 500 (Tex. Crim. App. 2007) (determining that no fact issue existed regarding whether two witnesses were accomplices even though one witness drove to location where murder occurred, both witnesses had been told defendant intended to kill victim, at least one witness helped dispose of victim’s body and murder weapon, and both witnesses accepted money from defendant following offense); Kunkle, 771 S.W.2d at 437, 438, 441 (noting that evidence showed witness had overheard discussions about robbery prior to capital murder but "did not take part in them," that witness was present when different robbery was committed, that he may have acted as lookout for that offense, that he did not participate in robbery or share in proceeds of that other offense, that he was present in car when charged capital murder was committed, that he was afraid to call police, and that he attended lake outing on following day that was paid for with proceeds obtained from the capital murder and concluding that "[e]ven if [the witness] knew about the prior robbery, failed to abandon the group, permitted [the capital murder victim] to be induced into entering the vehicle, and would have told the others (but did not) if he saw police, he would not be shown to have committed an affirmative act in order to assist the murder" and could not "be an accomplice, even as a matter of fact").
[2] Based on those same reasons, we similarly conclude that "[n]either direct nor circumstantial evidence in this case would justify a jury finding that Hogarth was an accomplice witness whose testimony required corroboration." Ruffins II, 666 S.W.3d at 656. Flaws in instructions re- garding an accomplice as a matter of fact are rendered "inapposite" when the evidence would not justify a finding that the witness was "in fact, an accomplice." See id. at 647; see also Druery, 225 S.W.3d at 500 ("Druery’s arguments concerning accomplice witness instractions given to or not given to the jury and concerning the application of the accomplice witness rule to the underlying predicate felony offense are inapposite."). Indeed, if a witness is not an accomplice, then a trial court’s "instruction regarding accomplice witnesses as a matter of fact" would be "superfluous" and could "not harm" a defendant. Druery, 225 S.W.3d at 497. On the contrary, "such an instraction could only benefit" a defendant because it would "require corroboration of the witness[’s] testimony if it believed that the" witness was an accomplice. Id. at 497-98. Accordingly, any errors in the instruction regarding Hogarth as an accomplice as a matter of fact did not harm Ruffins.
For these reasons, we overrule Ruffins’s second through fourth issues on appeal. Accomplice Witness Instructions for Hogarth and Trevino
In his fifth issue on appeal, Ruffins contends that there was error in the trial court’s jury charge setting out the accomplice-witness instructions for Hogarth and codefendant Trevino. See Tex. Code Crim. Proc. art. 38.14. The charge specified that "[a] person cannot be convicted of a crime on the uncorroborated testimony of an accomplice." Regarding Trevino, the charge included instructions specifying that he was an accomplice as a matter of law. Specifically, the charge provides, in relevant part, as follows:
Gustavo Trevino is an accomplice to the crime of aggravated robbery if it was committed. The defendant, Anthony Ruffins, therefore cannot be convicted on the testimony of Gustavo Trevino unless that testimony is corroborated.
Regarding the accomplice-as-a-matter-of-fact instraction for Hogarth, the charge reads, in relevant part, as follows:
You must determine whether David Hogarth is an accomplice to the crime of aggravated robbery, if it was committed. If you determine that David Hogarth is an accomplice, you must then also determine whether there is other evidence corroborating the testimony of David Hogarth.
On appeal, Ruffins acknowledges that the accomplice-witness instructions contained a corroboration requirement but contends that the accomplice-witness instructions were erroneous because they failed to also instruct the jury that "it must determine whether or not Trevino and Hogarth’s testimony was both true and showed [his] guilt before using the testimony to convict."
In Ruffins I, the majority did not address this issue. However, both the concurring and the dissenting opinions did address this issue. The concurring opinion explained that the Court of Criminal Appeals and some of our sister courts of appeals have explained in the past that accomplice-witness instructions must direct the jury that it cannot consider an accomplice witness’s testimony unless it believes the testimony is true and the testimony is corroborated by other evidence presented at trial and that the Court of Criminal Appeals has concluded that an instruction that does not include both requirements is error. Ruffins I, 613 S.W.3d at 218-20 (Baker, J., concurring). In contrast, the dissent reasoned that although the Court of Criminal Appeals explained in the past that the omission at issue was error, subsequent case law pertaining to jury charges renders the analysis from those earlier cases inapplicable to this case. See id. at 210-17 (Goodwin, J., dissenting). We agree with the analysis of the dissenting opinion.
[3] As an initial matter, we note, as explained in the dissenting opinion, that "[a] conviction is a finding of guilt beyond a reasonable doubt," which implicitly means that the jury believed the evidence supporting the verdict. Id. at 210. Additionally, as the dissent points out, after the Court of Criminal Appeals determined that the omission was error, the manner in which appellate courts review alleged charge errors fundamentally changed with the Court of Criminal Appeals’ opinion in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g), and the requirements for what should be included in instructions for accomplice-witness testimony have changed over the years. See Ruffins I, 613 S.W.3d at 210 (discussing Almanza and Holladay v. State, 709 S.W.2d 194, 198 (Tex. Crim. App. 1986)). Moreover, the dissent explained that although the Court of Criminal Appeals years ago set out an accomplice-witness instruction that should be given in cases and that included the belief requirement, that instruction was later criticized by the Court of Criminal Appeals. See id. at 211 (considering cases by Court of Criminal Appeals). Furthermore, although the dissent recognized that more recent cases by the Court of Criminal Appeals and our sister courts of appeals have addressed issues pertaining to charges that include belief language, the actual issues addressed in those cases did not require the courts to determine whether the inclusion of that language was proper. See id. at 213-15 (setting out issues addressed in opinions by Court of Criminal Appeals and intermediate courts of appeals).
The dissent also reasoned that to the extent that our sister courts of appeals have concluded that the purpose of the accomplice-witness instruction is to require that the testimony is corroborated and that the jury believe the testimony, the purpose of the instruction should and can be gleaned from looking at the statute pertaining to accomplice testimony (article 38.14 of the Code of Criminal Procedure), which speaks only about corroboration and does not require instructions as to the believability or truthfulness of the testimony. See id. at 215, 216 (discussing two cases from our sister courts of appeals); see also Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (explaining that instruction under article 38.14 "does not say that the jury should be skeptical of accomplice witness testimony" or "provide for the jury to give less weight to such testimony than to other evidence" but "merely informs the jury that it cannot use the accomplice witness testimony unless there is also some non-accomplice evidence connecting the defendant to the offense" and reasoning that "[o]nce it is determined that such non-accomplice evidence exists, the purpose of the instruction is fulfilled, and the instruction plays no further role in the factfinder’s decision-making"). And, in any event, those cases from our sister courts are not binding precedent for this Court. See HWY 3 MHP, LLC v. Electric Reliability Council of Tex., 462 S.W.3d 204, 211 n.4 (Tex. App.—Austin 2015, no pet.) (explaining that analysis from sister court of appeals is not binding precedent).
Further, the dissent noted that the "Criminal Pattern Jury Charges do not include such a[ belief] instruction in the instruction on accomplice-witness testimony for either an accomplice as a matter of law or for an accomplice as a matter of fact" and that "the committee explicitly recommends against including such an instruction because the statute does not require it and, further, it may be an inaccurate statement of the law." Ruffins I, 613 S.W.3d at 216-17 (citing Committee on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges: Special Instructions, CPJC 3.3, 3.4 (2018)).
[4] For these reasons, the dissent concluded that "[t]he instruction at issue is simply not necessary—as the statutory corroboration requirement and the criminal burden of proof for conviction fully address the need for belief in the truthfulness of accomplice-witness testimony to sustain a conviction" and that the instruction is not "required by law." Id. at 216, 217. We agree with the reasoning and analysis of the dissent and similarly conclude that the desired instruction was not necessary nor required to be included by law. Accordingly, we overrule Ruffins’s fifth issue on appeal.
Motion for New Trial
In his sixth, seventh, eighth, and ninth issues on appeal, Ruffins challenges the trial court’s denial of his motion for new trial. Following his conviction, Ruffins requested that Al Yonovitz review the audio of the surveillance footage, and Yonovitz prepared a report stating that "[t]he relevant audio is not of high quality or fidelity" and that the enhancements he performed on the audio did not alter or change the words spoken. Further, the report noted that Detective Mahoney testified that he heard the word "Pooh Bear" and later heard the phrase "Let’s go, Pooh." Regarding the first word, Yonovitz determined that no one on the recording said the word "Pooh Bear" and, instead, concluded "with a high degree of certainty" that the following statements were uttered around that time: "Put that pistol (down)" and "Nah, fuck that." Regarding the second phrase, Yonovitz stated that someone did say "Let’s go" but stated that the third word following that was "unclear" and could have been "Pooh" or "Move" and that the words have similar sounds. In his report, Yonovitz also explained that because of the lack of clarity, individuals who were told that they would hear the word "Pooh" would likely hear that word but that individuals who were told that they would hear the word "Move" would likely hear that word. Further, Yonovitz explained that because Detective Mahoney testified that he heard "Pooh Bear" and "Pooh" before the clip was played again, the jury was expecting to hear "Pooh" and "Pooh Bear." Finally, Yonovitz reasoned that the lack of clarity was exacerbated by the fact that the clips were played using the trial court’s sound system rather than "closed-ear headphones with the right amount of amplification."
After receiving the report, Ruffins filed a motion for new trial detailing Yonovitz’s report. Additionally, Ruffins argued that the State failed to disclose before trial Detective Mahoney’s opinion about the statements uttered and that the failure violated article 39.14 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 39.14. Further, Ruffins asserted that if the State had disclosed the information, he would have before trial sent the recordings for a forensic analysis like the one performed by Yonovitz, and Ruffins contended that if the evidence from a forensic analysis had been admitted, the outcome of the trial likely would have been different given that identity was a key issue. Alternatively, Ruffins urged the trial court to grant his motion for new trial because the forensic analysis performed by Yonovitz constituted newly discovered evidence under article 40.001. See id, art. 40.001. In addition to the motion for new trial, Ruffins filed a motion for continuance asking for additional time to allow Yonovitz to testify at a hearing on the motion for new trial and a motion requesting additional funds to transport Yonovitz from out of state to the trial court.
During a hearing on the motion for new trial, Ruffins discussed Yonovitz’s report and again urged that the State’s alleged failure to disclose Detective Mahoney’s observations violated article 39.14 and that Yonovitz’s report constituted new evidence under article 40.001. Further, Ruffins contended that the State’s evidence other than the recordings was presented through accomplices and codefendants who were not credible and that the recordings did not show who was involved in the offense. The State argued that article 39.14 did not apply, that Ruffins did not timely object or request a continuance, that nothing in the record indicated that the jury was biased by Detective Mahoney’s testimony, and that there was other evidence beyond the recording supporting Ruffins’s conviction. Yonovitz’s report along with the motion for new trial, motion for continuance, and motion for additional funds were admitted as exhibits.
Additionally, one of Ruffins’s trial attorneys testified that if he had suspected that someone would claim that the words "Pooh" or "Pooh Bear" had been uttered on the recordings, he would have sent the recordings for analysis before trial. Further, he related that he reviewed witness statements from Detective Mahoney before trial and that none of those statements mentioned "Pooh" or "Pooh Bear" being said by any of the offenders. In his cross-examination, Ruffins’s attorney stated that he received the recording as part of the discovery more than one year before trial and had reviewed it multiple times, that he received no supplemental report containing Detective Mahoney’s understanding of what was said on the recording, and that the State should have disclosed that information. Further, he admitted that, to the best of his knowledge, there was no supplemental report detailing Detective Mahoney’s or anyone else’s understanding of the contents of the surveillance footage and that there was no written document or recorded statement by Detective Mahoney chronicling what he heard on the footage.
After reviewing the motions and the testimony by Ruffins’s attorney, the trial court denied the motion for new trial, the motion seeking additional funding to procure Yonovitz’s testimony, and the motion for continuance. At the hearing, Ruffins requested findings of fact and conclusions of law supporting the trial court’s rulings, but the trial court denied that request. However, the trial court did state in response to questions by Ruffins that it found his trial attorney’s testimony to be credible, that it found Yonovitz’s opinion credible to the extent that he suggested that the language "could have gone either way," and that it did not have a problem with the report.
Article 40.001
[5] In his sixth issue, Ruffins argues that the trial court erred by denying his request for a new trial. More specifically, Ruffins contends that he was entitled to a new trial under article 40.001 of the Code of Criminal Procedure because Yonovitz’s report prepared after trial "was new material and favorable evidence bearing directly on whether or not [his] nickname could be heard in the surveillance video." See id. art. 40.001. Article 40.001 provides that "[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Id. To obtain relief under article 40.001, a defendant must show the following:
(1) the newly discovered evidence was unknown or unavailable to the defendant at the time of trial; (2) the defendant’s failure to discover or obtain the new evidence was not due to the defendant’s lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and
(4) the new evidence is probably true and will probably bring about a different result in a new trial.
Olmos v. State, — S.W.3d —, No. 14-21-00461-CR, 2023 WL 5022446, at *5 (Tex. App.—Houston [14th Dist.] Aug. 8, 2023, pet. refd). Ruffins asserts on appeal that all four of these elements are satisfied and that the trial court should have granted his motion for new trial because he had no way of knowing that Detective Mahoney would testify about hearing his nickname in the footage, because Yonovitz would be able to testify as an expert witness, because the expert testimony would have been unique affirmative evidence and not have been merely impeaching, because the evidence was probably true and found credible by the trial court, and because the evidence would likely bring about a different result due to its ability to prevent a jury from being improperly swayed to hear his nickname and due to its ability to undermine Detective Mahoney’s testimony as corroborative of the testimony from the accomplice witnesses. In response, the State contends that the evidence was not "new" as required by the statute.
[6–13] "A trial court’s denial of a motion for new trial is reviewed under an abuse-of-discretion standard." Young v. State, 591 S.W.3d 579, 595 (Tex. App.— Austin 2019, pet. refd). "Accordingly, appellate courts reverse ‘only when the trial judge’s decision was so clearly wrong as to lie outside the zone within which reasonable persons might disagree,’ " Schneider v. State, 623 S.W.3d 38, 45 (Tex. App.— Austin 2021, pet. refd) (quoting Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009)), or was "arbitrary or unreasonable," State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial court’s ruling may be reversed "only if no reasonable view of the record could support the trial court’s ruling." Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). "At a motion for new trial hearing, the judge alone determines the credibility of the witnesses." Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). "Even if the testimony is not controverted or subject to cross-examination, the trial judge has discretion to disbelieve that testimony." Id. Appellate courts view the evidence in the light most favorable to the ruling and presume all reasonable findings that could have been made against the nonprevailing party were made. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by Tex. R. App. P. 21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex. Crim. App. 2007). "Motions for new trial predicated on newly discovered evidence are not favored by appellate courts and are viewed with great caution." Olmos, 2023 WL 5022446, at *5. "[A] defendant is not entitled to a new trial to procure evidence that was known and accessible to him at the time of trial, even if defense counsel did not learn about the evidence until later." Hamilton v. State, 563 S.W.3d 442, 448 (Tex. App.— Houston [1st Dist.] 2018, pet. ref’d). When confronted with a similar issue, one of our sister courts of appeals determined that the trial court did not abuse its discretion by denying a defendant’s motion for new trial because the evidence was not "new." See Ford v. State, 444 S.W.3d 171, 183 (Tex. App.—San Antonio 2014), aff’d, 477 S.W.3d 321 (Tex. Crim. App. 2015). In that case, the defendant argued that the trial court should have granted his motion for new trial under article 40.001 because of "newly discovered evidence," including "an expert to counter … testimony as to whether historical cell tower data can establish a phone’s approximate location" and "an expert to testify that the figure seen in the ATM photos … could not have been [the defendant] because the figure was too tall." Id. at 183. In overruling the issue, our sister court explained that "[t]he evidence underlying the potential ‘new’ experts is not, in fact, newly discovered" because the defendant "had access to the historical data records … and the ATM images used by the State before the start of trial." Id. Further, our sister court reasoned that "[r]eaching new and different opinions from the same foundational evidence does not render the evidence newly discovered as required … even if those new opinions may be material." Id.
In its appellee’s brief, the State argues in response to Ruffins’s next issue (his seventh) that his failure to move for a continuance after hearing Detective Mahoney’s testimony about the contents of the surveillance footage resulted in that issue not being preserved for appellate consideration. Regarding Ruffins's sixth issue, the State also references Ruffins’s failure to move for a continuance and asserts that "case law relevant to the seventh issue is analogous authority for rejecting his sixth." To the extent that the State is suggesting that Ruffins’s failure to seek a continuance resulted in his article 40.001 claim not being preserved, we note that the State has not referred to cases deciding that an article 40.001 claim was not preserved. Moreover, although there are cases concluding that article 40.001 claims were not preserved for appellate consideration, the circumstances of those cases differ from those here. See, e.g., Pitman v. State, 372 S.W.3d 261, 264 n.2 (Tex. App.— Fort Worth 2012, pet. ref’d) (determining that defendant "forfeited []his complaint on appeal" alleging that he should have been given new trial based on newly discovered evidence under article 40.001 where he "did not raise this issue in his new-trial motion or at the new-trial hearing").
[14] We agree with the analysis of our sister court. Like in Ford, Ruffins had access to the surveillance footage for more than a year before trial. Although Yonovitz provided an opinion of that foundational evidence that differed from that of Detective Mahoney’s, that differing opinion did not render the evidence newly discovered as required by statute. See Tex. Code Crim. Proc. art. 40.001; Ford, 444 S.W.3d at 183.
In his reply brief, Ruffins contends that the analysis from Ford is incorrect because forensic analysis and opinions are forms of evidence that are "distinct from the evidence they test." However, the cases relied on by Ruffins are distinguishable because they involve requests for habeas relief and involve situations in which the applicants sought relief based on scientific evidence that was not available at the time of the trial. See Ex parte Chaney, 563 S.W.3d 239, 255, 263 (Tex. Crim. App. 2018); Ex parte Mayhugh, 512 S.W.3d 285, 293 (Tex. Crim. App. 2016); see also Tex. Code Crim. Proc. art. 11.073 (authorizing habeas relief based on scientific evidence that "was not available at the time of the convicted person’s trial"). Further, although Ruffins contends that the evidence in this case differs from that in Ford because the evidence here involved a forensic analysis rather than an opinion, we disagree with Ruffins’s contention. In this case, Yonovitz stated in his report that he performed various enhancements to help determine whether Ruffins’s nickname was said on the surveillance footage, and this is similar to the opinion offered by the expert in Ford that Ford could not have been in the ATM photos. See 444 S.W.3d at 183.
For these reasons, we overrule Ruffins’s sixth issue on appeal. Article 39.14
In his seventh issue on appeal, Ruffins argues that the trial court erred by overruling his request for a mistrial following Detective Mahoney’s stating that he believed that he could hear Ruffins’s nickname being said twice on the surveillance footage from the tattoo parlor. Specifically, he asserted that the admission of that evidence violated article 39.14 of the Code of Criminal Procedure because the State failed to timely disclose the information before trial. See Tex. Code Crim. Proc. art. 39.14. Ruffins repeated his 39.14 claims in his motion for new trial and argued that if the information had been properly disclosed, he would have introduced expert testimony "severely undercutting Mahoney's statement." For that reason, Ruffins contends in this same issue that the trial court also erred by denying his motion for new trial on this basis. In response, the State asserts that Ruffins failed to preserve these claims for appellate consideration by failing to move for a continuance and that no violation of article 39.14 occurred.
[15] We agree with the State that Ruffins failed to preserve his claims for appellate consideration. After Detective Mahoney testified during his direct examination regarding what he heard on the footage, Ruffins questioned Detective Mahoney about his observations and when he informed the State about his observations before ultimately requesting a mistrial and requesting that the jury be instructed to disregard the testimony, but he never moved for a continuance.
In his reply brief, Ruffins contends that it was not possible for him to properly move for a continuance because the withheld discovery surfaced in the middle of trial, because oral motions for continuance do not preserve appellate complaints, and because motions for continuance must be written and sworn to preserve appellate complaints. See id. arts. 29.03, .08 (setting out requirements for motion for continuance); Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (explaining that party forfeits appellate challenge to denial of unsworn oral motion for continuance by failing to comply with requirements of articles 29.03 and 29.08). Further, Ruffins contends that the Court of Criminal Appeals has reversed a case on the basis of a discovery violation even though no continuance was requested. See Oprean v. State, 201 S.W.3d 724, 728 (Tex. Crim. App. 2006). Moreover, Ruffins asserts that defendants should only be required to request relief that could cure the error complained of, see Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004) (addressing need to request instruction to disregard and explaining that it is only needed if it "could have had the desired effect"), and suggests that his request for an instruction to disregard and request for a mistrial should be sufficient to preserve for appellate review his complaint regarding article 39.14.
Although the Court of Criminal Appeals did address an issue asserting an alleged discovery violation even though no motion for continuance was made, it did not determine that this type of request or a similar request for a delay was not necessary to preserve the complaint for consideration. On the contrary, in Oprean the defendant objected to the admission of evidence that he asserted had not been properly disclosed and then after his objection was overruled, requested a recess to inspect the video and prepare his defense. 201 S.W.3d at 725. That request was denied. Id. When discussing the request for a recess, the concurring opinion explained that "[a]n oral motion for delay" is proper when either side is surprised by something at trial that could not have been anticipated and that the denial of the request is reviewable on appeal. Id. at 730 n.11 (Cochran, J., concurring).
In addition, the circumstances present in Oprean differ from those here. In Oprean, the video at issue was admitted into evidence during the punishment phase on the last day of trial. See id. at 725 (majority opinion). In contrast here, the allegedly improper testimony was elicited during the guilt-innocence phase of the trial, and there was an additional one and a half days that followed in the guilt-innocence phase.
Additionally, although Ruffins contends that it is not possible to move for a continuance during trial, the Code of Criminal Procedure specifically authorizes a trial court to grant a continuance after a trial has begun. See Tex. Code Crim. Proc. art. 29.13. Further, our sister court of appeals has concluded that a request for a continuance is necessary to preserve a complaint regarding article 39.14 under circumstances similar to those present here because, if granted, it would afford the defendant "the opportunity to avoid the prejudice and impairment." See Rodriguez v. State, 630 S.W.3d 522, 524 (Tex. App.— Waco 2021, no pet.); see also Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) ("The failure to request a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise.").
For these reasons, we similarly conclude that Ruffins failed to preserve this claim for appellate consideration and overrule his seventh issue on appeal.
In its brief, the State also asserts that Ruffins failed to preserve this claim because he failed to object in a timely manner. Given our resolution above, we need not address this argument. See Tex. R. App. P. 47.1.
Findings of Fact and Conclusions of Law
In his eighth issue on appeal, Ruffins asks this Court to abate the appeal and remand the case with instructions for "the trial court to enter findings of fact and conclusions of law on its decision to deny" his motion for new trial. As support, Ruffins points to an opinion by the Court of Criminal Appeals in which it determined in the suppression context "that courts of appeals should not be forced to make assumptions (or outright guesses) about a trial court’s ruling" and that instead "upon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings." State v. Cullen, 195 S.W.3d 696, 698, 699 (Tex. Crim. App. 2006). Next, Ruffins highlights that the trial court elected not to make findings and conclusions despite his request, and he asserts that the trial court should have issued findings and conclusions to aid this Court in its review of the ruling. Building on the preceding, Ruffins argues that an abatement is warranted to correct the trial court’s erroneous failure or refusal to act. See Tex. R. App. P. 44.4.
[16, 17] The Rules of Appellate Procedure explain that a ruling on a motion for new trial must be made within 75 days of sentence being imposed and that "[a] motion not timely ruled on by written order will be deemed denied when" the 75-day period expires. Id. R. 21.8(a), (c). When ruling on a motion for new trial, a trial court "may make oral or written findings of fact." Id. R. 21.8(b) (emphasis added). "By use of the word ‘may,’ the rule authorizes—but does not require—a trial court" to make oral or written findings when ruling on a motion for new trial. Thomas v. State, 445 S.W.3d 201, 214 (Tex. App.— Houston [1st Dist.] 2013, pet. ref’d); see Tex. Gov’t Code §§ 311.002 (stating that Code Construction Act applies to rules), .016(1) (explaining that use of word " [m]ay’ creates discretionary authority"). "Contrary to [Ruffins]’s argument that written findings and conclusions are or should be required, the rule anticipates precisely the opposite, as a motion for new trial is deemed denied if not ruled upon in writing within 75 days." Thomas, 445 S.W.3d at 215. To the extent that Ruffins suggests that an extension of Cullen should be applied to the motion-for-new-trial context, "[t]he promulgation of new rules of appellate procedure is outside the purview of the authority of a court of appeals." Id.
[18] Accordingly, we cannot agree with Ruffins’s suggestion that the trial court abused its discretion by not issuing findings and conclusions pertaining to the denial of his motion for new trial, particularly where, as here, resolution of Ruffins’s claims regarding articles 39.14 and 40.001 did not require this Court to rely on any assumptions or implied findings of fact. See id. Further, because the trial court did not erroneously "fail[ ] or refuse[e] to act" and, thereby, "prevent the proper presentation" of this case, a remand is not warranted under Rule of Appellate Procedure 44.4. Tex. R. App. P. 44.4.
For these reasons, we overrule Ruffins’s eighth issue on appeal.
Yonovitz’s Testimony
In his ninth issue on appeal, Ruffins contends that the trial court abused its discretion by not allowing Yonovitz to testify at the hearing on the motion for new trial after concluding that his testimony was not necessary. When presenting this issue, Ruffins highlights that the trial court stated in response to his questions that it found Yonovitz’s report credible and did not have a problem with the report and, in light of those statements, suggests that this Court should presume that the trial court "found that Yonovitz’s report and affidavit contained no deficiencies, either in detail or in terms of Yonovitz’s credibility or qualifications." Alternatively, Ruffins contends that if this Court cannot apply that presumption, it should remand the case to the trial court for a new hearing on the motion for new trial to allow the trial court an opportunity to hear live testimony from Yonovitz.
When addressing Ruffins’s issue pertaining to Yonovitz’s report, we concluded that the evidence was not new as required under article 40.001. Under this basis, no credibility determination pertaining to Yonovitz was necessary for the trial court to deny the motion for new trial or for this Court to decide the issue. See Herndon, 215 S.W.3d at 905 n.4 (noting in motion-for-new-trial context "that a trial court’s ruling will be upheld if it is correct on any applicable legal theory").
For that reason, we conclude that the trial court did not abuse its discretion by ruling on the motion for new trial without allowing Yonovitz to testify and similarly conclude that a remand is unnecessary here. Cf. Bouldin v. State, 100 S.W.3d 355, 356 (Tex. App.—San Antonio 2002, no pet.) (concluding that hearing on motion for new trial is not required where matter can be determined from record).
Therefore, we overrule Ruffins’s ninth issue on appeal.
Cumulative Harm
Although not listed as a distinct issue, Ruffins asserts in his brief that reversal is warranted in this case due to the cumulative harm stemming from all the errors that he alleges the trial court made and that form the basis for his appellate issues discussed above. However, because we have determined that Ruffins benefited from the inclusion of an accomplice-witness instruction that he was not entitled to, that no Jury charge error resulted from the omission of an instruction that the jury had to believe the accomplice-witness testimony before considering it, that Ruffins did not preserve his article 39.14 claim, and that the trial court did not abuse its discretion by denying his motion for new trial, by not issuing findings and conclusions, and by not allowing Yonovitz to testify, we cannot find cumulative harm. See Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009) (explaining that non-errors do not, in their cumulative effect, cause harm).
Deadly Weapon Finding
In his tenth issue on appeal, Ruffins contends that the trial court erred by entering a deadly weapon finding in its judgment of conviction. Specifically, Ruffins argues that the finding should be deleted "because neither the judge nor the jury made" an express finding. When presenting this issue, Ruffins notes that article 42A.O54 of the Code of Criminal Procedure states that the provision allowing a judge to order community supervision "does not apply to a defendant when it is shown that" "a deadly weapon … was used or exhibited during the" "commission of a felony offense" or "immediate flight from the commission of a felony offense" and that "the defendant" "used or exhibited the deadly weapon" or "was a party to the offense and knew that a deadly weapon would be used or exhibited." Tex. Code Crim. Proc. art. 42A.054(b). Further, Ruffins highlights that the multi-count indictment in this case charged Ruffins with aggravated robbery and alternatively alleged that he was guilty as a principal and as a party to the offense. Next, he contends that at least one of the non-principal alternative allegations did not include the language that he "knew that a deadly weapon would be used or exhibited" and instead only required that he "should have anticipated" that the offense would occur "as a result of the carrying out of the conspiracy." Moreover, he asserts that the jury entered a general verdict of guilty "as charged in the indictment" and did not make an explicit deadly weapon finding. While recognizing that a deadly weapon finding may be made even without an explicit finding when use of a deadly weapon is alleged in the indictment, he urges that because not every paragraph of the indictment and jury charge included a deadly weapon allegation that complied with article 42A.054 and because the jury entered a general verdict, it is not possible "to determine which paragraph formed the basis for the jury’s verdict." Accordingly, he insists that the jury’s verdict could not support a deadly weapon finding.
When presenting this issue, Ruffins acknowledges that the trial court assessed punishment in this case, that trial courts may make deadly weapon findings when assessing punishment, and that the trial court stated that it would "make the affirmative finding of the use of a deadly weapon"; however, he contends that this finding could not support the inclusion of a deadly weapon finding in the judgment. Specifically, he reasons that a general pronouncement that a deadly weapon was used cannot constitute a deadly weapon finding where, as here, a defendant can be deemed guilty as a principal or party because the statute requires that he personally used or exhibited a deadly weapon as a principal or knew that a deadly weapon would be used or exhibited as a party. See id. Further, he contends that although the trial court mentioned an affirmative finding, it explained that the finding was "based on the jury’s verdict" rather than based on its own assessment of whether a deadly weapon finding should be made. Therefore, he urges that the trial court’s finding did not constitute a proper deadly weapon finding. For these reasons, Ruffins requests that this Court delete the deadly weapon finding from the judgment of conviction. In re- sponse, the State argues that Ruffins failed to preserve this issue for appellate consideration and that the finding was proper.
[19] We agree with the State that the issue was not preserved. When Ruffins’s sentence was pronounced and when the trial court made "the affirmative finding of the use of a deadly weapon," he did not object to the finding or otherwise challenge it when the written judgment was signed. Similarly, when Ruffins filed a motion for new trial one month later, he made no claim regarding the finding.
[20–23] Generally, before a party may present "a complaint for appellate review, the record must show that … the complaint was made to the trial court by a timely request, objection, or motion" "with sufficient specificity to make the trial court aware of the complaint." See Tex. R. App. P. 33.1(a). Preservation of error is a "systemic requirement" on appeal. See Darcy v. State, 488 S.W.3d 325, 327 (Tex. Crim. App. 2016). An issue raised on appeal generally must be preserved by a specific objection at trial. Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). Accordingly, to preserve a complaint on appeal, the party must make a specific objection letting the trial court "know what he wants, why he thinks himself entitled to it, and do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Id. at 312-13 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)); see Pena v. Stale, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). Appellate courts should not address the merits of an issue that has not been preserved for appellate consideration. See Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012).
[24] Although a defendant need not object at trial to challenge the sufficiency of the evidence supporting a deadly weapon finding, see Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010), Ruffins is not making a sufficiency challenge to the finding. Instead, Ruffins argues that the finding was improper because neither the jury nor the trial court made a proper finding. These types of challenges to a deadly weapon finding must be preserved before they may be addressed on appeal. See Smith v. State, 176 S.W.3d 907, 918 (Tex. App.—Dallas 2005, pet. refd) (concluding that defendant failed to preserve appellate issue asserting that "the trial court had no authority to make an affirmative finding of a deadly weapon because the State did not plead the use of a deadly weapon in the indictment" and because "the parties did not stipulate to the use of a deadly weapon").
For these reasons, we overrule Ruffins’s tenth issue on appeal.
Court Costs
In his eleventh issue on appeal, Ruffins contends that the amount of court costs imposed in this case should be reduced from $1,123 to $324 because there is no basis for the imposition of $799 of the court costs. In response, the State asserts that the amount of court costs was supported by the record and further suggests that the amount should be increased by an additional $25 for a late-payment fee.
[25–28] The payment of court costs is mandated by the legislature. Houston v. State, 410 S.W.3d 475, 477 (Tex. App.— Fort Worth 2013, no pet.); see also Tex. Code Crim. Proc. art. 42.16 (requiring payment of costs when "punishment is any other than a fine"). However, a defendant may only be obligated to pay court costs that are statutorily authorized. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014); see also Tex. Code Crim. Proc. art. 103.002 (providing that "[a]n officer may not impose a cost for a service not performed or for a service for which a cost is not expressly provided by law"). Because court costs do not need to be incorporated into a Judgment by reference or orally pronounced, defendants may challenge the imposition of court costs for the first time on appeal. Johnson, 423 S.W.3d at 389, 391, When a defendant challenges the imposition of court costs, reviewing courts determine whether there is a basis for the costs but do not determine whether sufficient evidence was offered during the trial to support each cost. Id. at 390; see Martinez v. State, 510 S.W.3d 206, 208 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Further, "a specific amount of court costs need not be supported by a bill of costs in the appellate record for a reviewing court to conclude that the assessed court costs are supported by facts in the record." Johnson, 423 S.W.3d at 395.
As set out above, Ruffins agrees on appeal that $324 was properly assessed, and our review of the records reveals that there is a statutory basis for the following costs totaling $324: a $133 felony conviction fee, a $6 fee for court-related purposes, a $4 juror services fee, a $4 technology fee, a $5 security court cost for a felony conviction, a $2 indigent defense fee, a $40 clerk’s fee, a $25 records management fee, a $50 execution of a warrant fee, a $5 peace-officer fee for Ruffins's commitment or release from jail, a $5 jury summoning fee, a $40 jury conviction fee, and a $5 fee for a subpoena for one of the State’s witnesses.
See Act of June 2, 2003, 78th Leg., R.S., ch. 209, § 62(a), sec. 133.102, 2003 Tex. Gen. Laws 979, 996 (modified 2011, 2017, 2019) (current version at Tex. Loc. Gov’t Code § 133.102).
See Act of Aug. 9, 2005, 79th Leg., 2d C.S., ch. 3, § 12, sec. 133.105, 2005 Tex. Gen. Laws 34, 37 (amended 2007), repealed by Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.19, 2019 Tex. Gen. Laws 3981, 3992.
See Act of May 27, 2005, 79th Leg., R.S., ch. 1360, § 5, art. 102.0045, 2005 Tex. Gen. Laws 4255, 4256 (amended 2011), repealed by Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.19, 2019 Tex. Gen. Laws 3981, 3992.
See Act of May 31, 2009, 81st Leg., R.S., ch. 1183, § 1, art. 102.0169, 2009 Tex. Gen. Laws 3753, 3753 (current version at Tex. Code Crim. Proc. art. 102.0169).
See Act of May 22, 1993, 73d Leg., R.S., ch. 818, § 1, art. 102.017, 1993 Tex. Gen. Laws 3258, 3258 (amended 1995, 1997, 1999, 2005, 2007, 2011, 2013, 2017, 2019, 2021) (current version at Tex. Code Crim. Proc. art. 102.017).
See Act of May 27, 2007, 80th Leg., R.S., ch. 1014, § 6, sec. 133.107, 2007 Tex. Gen. Laws 3540, 3542 (amended 2011), repealed by Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.19, 2019 Tex. Gen. Laws 3981, 3992.
See Act of May 17, 1985, 69th Leg., R.S., ch. 269, § 1, art. 102.005, 1985 Tex. Gen. Laws 1300, 1302 (amended 1989, 1993, 1995, 1999, 2005), repealed by Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.19, 2019 Tex. Gen. Laws 3981, 3992.
See id.
See id. art. 102.011(a)(6).
See id. art. 102.011(a)(7).
See Act of May 17, 1985, 69th Leg., R.S., ch. 269, § 1, art. 102.004, 1985 Tex. Gen. Laws 1300, 1302 (amended 1989, 1995, 1999, 2003, 2015), repealed by Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.19, 2019 Tex. Gen. Laws 3981, 3992.
Before filing its appellee’s brief, the State requested that a supplemental clerk’s record be prepared with items relevant to the assessment of court costs. See Tex. R. App. P. 34.5(c) (authorizing supplementation of appellate record); see also Johnson, 423 S.W.3d at 392 (stating that "an appellant is not prejudiced by the supplementation of the record … because he or she need not object at trial to contest the imposition of court costs on direct appeal" and "has a separate statutory remedy to correct erroneous or unsupportable costs"). The supplemental record shows that there were 160 additional subpoenas for witnesses for the State, and Ruffins did not dispute in his reply brief that those subpoenas could serve as a basis for imposing court costs.
Subarticle 102.011(a)(3) of the Code of Criminal Procedure obligates a convicted defendant to pay as reimbursement $5 for summoning a witness. Tex. Code Crim. Proc. art. 102.011(a)(3). Accordingly, there is a basis for increasing the costs by $800 to $1,124. Although that amount is $1 greater than the amount assessed, this Court has explained that the imposition of fees in "an amount that was less than the amount statutorily authorized … would not seem to warrant a determination that the amount of the fee should be even further reduced." See Whary v. State, No. 03-16-00737-CR, 2017 WL 2333266, at *3 (Tex. App.—Austin May 24, 2017, no pet.) (mem. op., not designated for publication).
[29] As set out above, the State suggests in its brief that this Court should modify the amount of court costs to include an additional $25 fine. Specifically, the State asserts that an additional $25 late fee should be imposed because Ruffins did not pay court costs within 31 days of the judgment assessing court costs. See Act of June 2, 2003, 78th Leg., R.S., ch. 209, § 62(a), sec. 133.103, 2003 Tex. Gen. Laws 979, 996 (amended 2005, 2011, 2013, 2019, 2021), redesignated as Tex. Code Crim. Proc. art. 102.030. However, the Court of Criminal Appeals has determined that "[t]he pendency of an appeal stops the clock for purposes of the time payment fee" and that the fee may only be imposed if "more than 30 days after the issuance of the appellate mandate, the defendant has failed to completely pay any fine, court costs, or restitution that he owes." Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Because no appellate mandate has issued in this case, it would be improper to modify the court costs to include the time-payment fee. See id.
For these reasons, we overrule Ruffins’s eleventh issue on appeal.
CONCLUSION
Having overruled all of Ruffins’s remaining issues on appeal, we affirm the trial court’s judgment of conviction.
Concurring Opinion by Justice Baker
CONCURRING OPINION
Thomas J. Baker, Justice
I agree with the Court’s analysis and join the Court’s opinion regarding issues two through four and six through eleven. While I agree that Ruffins’s fifth issue should be overruled, I do not agree that there was no error in the jury charge as concluded by the Court.
In his fifth issue, Ruffins asserts that the trial court’s jury charge setting out the accomplice-witness instructions for David Hogarth and codefendant Gustavo Trevino contains error because it did not instinct the jury that it must first believe that the accomplice witness testimony is true. See Tex. Code Crim. Proc. art. 38.14. For the reasons set out in my original concurrence before remand, I still believe that the omission is error under the present state of the law. See Ruffins v. State, 613 S.W.3d 192, 217-21 (Tex. App.—Austin 2020) ("Ruffins I") (Baker, J., concurring), rev’d, 666 S.W.3d 636 (Tex. Crim. App. 2023) ("Ruffins II"). If the belief instruction is no longer required or needed (and perhaps never was), that clarification needs to come from the Court of Criminal Appeals. Cf. Cortez v. State, No. 09-01-00193-CR, 2002 WL 1040248, at *2 (Tex. App.—Beaumont May 22, 2002, no pet.) (op., not designated for publication) (noting that "an intermediate court of appeals cannot abandon a requirement imposed by the Court of Criminal Appeals" and that "it is for the Court of Criminal Appeals" to change its prior requirements).
Even though I believe the jury charge contained error, I would be unable to sustain Ruffins’s fifth issue on appeal because I do not believe the error harmed Ruffins. When I explained in my previous concurrence that this error harmed Ruffins, my primary concern was how this error compounded an additional error in the accomplice-witness instruction for Hogarth, See Ruffins I, 613 S.W.3d at 221. However, as the Court correctly determines, Ruffins was not entitled to an accomplice-witness instruction for Hogarth because he was not an accomplice, and the inclusion of an instruction for Hogarth, even an erroneous one, only benefitted Ruffins. In the absence of a need for an instruction for Hogarth and the potential need for corroboration of his testimony, I do not believe that Ruffins was egregiously harmed by the error in the instructions for Trevino. See Aston v. State, 656 S.W.2d 453, 456 (Tex. Crim. App. 1983) (noting that trial court erred by including accomplice-witness instructions for first witness because first witness was not accomplice and concluding that first witness’s testimony could, therefore, corroborate actual accomplice’s testimony).
For these reasons, I respectfully concur with the Court’s overruling of Ruffins’s fifth issue on appeal and otherwise join the opinion.