Opinion
NO. 03-19-00204-CR
03-12-2021
Lucio Roy Atkinson, Appellant v. The State of Texas, Appellee
FROM THE 424TH DISTRICT COURT OF BURNET COUNTY
NO. 46805 , THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING MEMORANDUM OPINION
A jury found appellant Lucio Roy Atkinson guilty of possession with intent to deliver a controlled substance, Clonazepam, in an amount of twenty-eight grams or more but less than 200 grams. See Tex. Health & Safety Code §§ 481.104(a)(2), .114(a), (c). Appellant elected to have the trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07(2)(b), and the trial judge assessed appellant's punishment, enhanced pursuant to the habitual offender provision of the Penal Code, at confinement for eighty years in the Texas Department of Criminal Justice, see Tex. Health & Safety Code § 481.114(c); Tex. Penal Code § 12.42(d).
In five points of error, appellant complains about the trial court's evidentiary rulings relating to the admission of text-message evidence, the court's denial of his requested jury-charge instruction, the court's purported failure to consider the full range of punishment, the violation of his right to a fair trial resulting from the trial court's alleged bias, and the imposition of court-appointed attorney's fees in the court's written judgment. Finding no reversible error, we will modify the written judgment to correct non-reversible error and, as modified, affirm the trial court's judgment of conviction.
BACKGROUND
The jury heard evidence that Jose Colombo, a highway patrol officer with the Department of Public Safety, initiated a traffic stop of the car that appellant was driving after the trooper noticed that the car did not have a front license plate, did not have a registration sticker on the windshield, and had an unreadable crumpled up temporary license plate on the back. On making contact with appellant, the trooper confirmed that appellant's car had no valid registration or up-to-date inspection and discovered that appellant had no valid driver's license and no insurance. In addition, as he spoke with appellant, Trooper Columbo smelled a "pretty strong" odor of green (or unburnt) marijuana coming from the car.
The trooper went to his patrol car to run a computer database check on appellant's driver's license and a criminal history. At that time, Trooper Columbo requested backup, and a deputy with the Burnet County Sheriff's Office arrived on the scene. After completing the database check on appellant, Trooper Columbo returned to appellant and had him exit his car. He asked appellant if he had "anything illegal, any type of contraband" in the car, and appellant admitted that he had marijuana in the car. The trooper handcuffed appellant for officer safety while the officers searched the car. The deputy found a white FedEx envelope rolled up on the backseat floorboard area underneath the driver's seat. The envelope contained "an ounce and a half of unburned marijuana and a large quantity of pills" of "different variations." Appellant was arrested, and the sheriff's deputy transported him to jail.
Trooper Columbo testified that, based on his consultation with pharmaceutical references (both on the roadside and later at the sheriff's office), he determined that seven different substances were in the FedEx envelope: 48.6 grams of Clonazepam, 10.1 grams of Diazepam, 45 grams of steroids, 28.9 grams of Carisoprodol, 28 grams of Trazodone, 28 grams of Alprazolam, and an ounce and a half of marijuana. He explained that within the FedEx envelope, each substance was in its own separate little plastic bag, which, based on the trooper's training and experience, is indicative of selling the drugs. Upon appellant's arrest, his car was towed. Before the tow, the trooper inventoried the contents of the car. He did not find any prescriptions or pill bottles with appellant's name for any of the substances in the car. Based on his belief that appellant was involved in the distribution of the drugs, Trooper Columbo seized appellant's cell phone, suspecting that there might be communications (texts or phone calls) related to appellant's drug distribution on it.
Brandon Middleton, a lieutenant with Texas Department of Public Safety assigned as a special agent to work narcotics, investigated the case. He interviewed appellant at the jail. Appellant admitted that the pills found in the car were his but claimed that they were for personal use. He said that he bought them from various homeless shelters, paying between fifty cents and a dollar for each pill. In his testimony, Lieutenant Middleton expressed that, based on his training and experience, possessing a large quantity of pills would be "indicative of some type of sales" and the intent to deliver. As part of his investigation, Lieutenant Middleton obtained a search warrant for appellant's cell phone.
Marcus Sauer, another special agent with the Texas Department of Public Safety, performed a digital forensic examination of appellant's cell phone. At trial, the State introduced summary reports compiled by Special Agent Sauer that reflected some of the text messages extracted from appellant's phone. Through an expert witness, a retired agent from the Drug Enforcement Administration, the State presented testimony showing that, in these text-message exchanges, appellant had communicated with others regarding potential drug transactions using "slang" or "code words" to refer to the drugs and particular amounts of drugs in the two weeks leading up to his arrest. The expert opined that the drugs "were possessed with the intent to be delivered, to be sold in smaller quantities" based on the quantity and variety of drugs that appellant possessed, the manner of packaging, and the content of the text communications extracted from appellant's phone.
The substances found in appellant's possession were transported to the Department of Public Safety (DPS) crime lab in Austin for analysis. A DPS chemist examined the various substances submitted, although, per the lab's policy, she performed a confirmation analysis of only one substance. She testified that she performed a preliminary visual examination of four of the substances submitted. In performing the "preliminary pharmaceutical observation," she determined the possible presence of Diazepam, Trazodone, Carisoprodol, and Clonazepam. With the substance indicating the possible presence of Clonazepam (the substance in the highest penalty group with the highest possible punishment), the chemist conducted a confirmation analysis—"a gas chromatograph mass spectrometer instrumentation examination"—and concluded that the substance, weighing 48.43 grams, contained Clonazepam.
The chemist explained that when multiple substances are submitted for testing, it is the lab's policy to "analyze to the highest punishment, to the highest penalty group," which means that they do a "complete analysis" on the item or substance that carries the most serious or "highest" offense that the individual could possibly be charged with.
Appellant was charged by indictment with two counts of possession with intent to deliver a controlled substance. Count One alleged that appellant possessed Clonazepam in an amount of twenty-eight grams or more but less than 200 grams, see Tex. Health & Safety Code §§ 481.104(a)(2), .114 (a), (c); Count Two alleged that he possessed Diazepam in an amount of less than twenty-eight grams, see id. §§ 481.104(a)(2), .114 (a), (b). The case proceeded to trial. During trial, the State abandoned Count Two after the DPS chemist testified that she did not perform a confirmation analysis of the substance indicating the possible presence of Diazepam.
On the remaining count, the trial court submitted two offenses to the jury: the charged offense of possession with intent to deliver a controlled substance in an amount of twenty-eight grams or more but less than 200 grams and the lesser-included offense of possession of a controlled substance in an amount of twenty-eight grams or more but less than 200 grams (possession without intent to deliver). The trial court denied appellant's request for instructions on the lesser-included offenses of possession with intent to deliver a controlled substance in an amount of less than twenty-eight grams and possession of a controlled substance in an amount of less than twenty-eight grams. The jury found appellant guilty of the charged offense of possession with intent to deliver a controlled substance in an amount of twenty-eight grams or more but less than 200 grams.
Appellant chose to have the trial court assess his punishment. Appellant pled true to both enhancement paragraphs of the indictment, which alleged prior sequential felony convictions for drug-possession offenses, and, following a punishment hearing, the trial court assessed appellant's punishment at eighty years' imprisonment. Appellant filed a motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8(c). This appeal followed.
DISCUSSION
In five points of error, appellant complains about the trial court's evidentiary rulings relating to the admission of evidence of the text messages extracted from his cell phone, challenges the denial of his requested jury-charge instruction on "mere possession," asserts that the trial court failed to consider the full range of punishment, argues that the trial court's bias violated his constitutional right to a fair trial and impartial judge, and seeks modification of the trial court's written judgment with respect to court-appointed attorney's fees.
Admission of Text-Message Evidence
During the guilt-innocence phase, the trial court admitted into evidence—first "conditionally" then later "for all purposes"—State's Exhibits #4 through #20, which were summary reports of text-message exchanges that, according to Special Agent Sauer's testimony, he compiled based on text messages that he extracted from appellant's phone during a digital forensic analysis. In his first point of error, appellant asserts that the trial court abused its discretion in admitting these exhibits because the text messages had not been properly authenticated, the incoming text messages were hearsay, the admission of the incoming texts violated his right to confrontation, and the text messages were inadmissible under Rule 403.
Each summary report listed, in a spreadsheet or table format, information about several selected SMS (or "short message service") texts. The information associated with each text was presented in columns that: indicated whether the text message was incoming ("received by the device") or outgoing ("sent from the device"); showed the date and time (converted into central standard time since the device captured it in Coordinated Universal Time or UTC) that the message was received or sent; listed the phone number that the device received the text from or sent the text to; and contained "the exact content" of the text message received or sent.
Appellant's first point of error is multifarious because it is based on several legal theories, which he intermingles in his argument, and we could reject it for that reason. See Balderas v. State, 517 S.W.3d 756, 773 (Tex. Crim. App. 2016); Davidson v. State, 249 S.W.3d 709, 717 n.2 (Tex. App.—Austin 2008, pet. ref'd). However, we will address his first point of error in the interest of justice to the extent that we can discern the errors about which he complains. See Davidson, 249 S.W.3d at 717 n.2 (observing that appellate courts "may consider multifarious issues if [the court] can determine, with reasonable certainty, the alleged error about which the complaint is made").
Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). An abuse of discretion does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial court's ruling unless the determination "falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83 ("Before a reviewing court may reverse the trial court's decision, 'it must find the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree.'" (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008))). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93; Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.).
Authentication
In his first point of error, appellant asserts that the trial court abused its discretion in admitting the text-message exhibits because the text messages had not been properly authenticated.
Authentication of evidence is a "condition precedent" to its admissibility. See Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) (explaining that "[e]vidence has no relevance if it is not authentically what its proponent claims it to be" and that "Rule 901(a) of the Rules of Evidence defines authentication as a 'condition precedent' to admissibility of evidence"); see also Tex. R. Evid. 901(a). The proponent of the evidence must "make a threshold showing that would be 'sufficient to support a finding that the matter in question is what its proponent claims.'" Tienda, 358 S.W.3d at 638 (quoting Tex. R. Evid. 901(a)); see also Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007).
Rule of Evidence 901, which governs the authentication requirement for the admissibility of evidence, "does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence." Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.) (quoting Peter T. Hoffman, Texas Rules of Evidence Handbook, Article IX, at 948 (8th ed. 2008-09)). The proponent of the evidence does not need "to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be." Id.; see Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018) ("Conclusive proof of authenticity before allowing admission of disputed evidence is not required.") The proponent must only produce sufficient evidence that a reasonable fact finder could properly find genuineness. Tienda, 358 S.W.3d at 638; see Fowler, 544 S.W.3d at 848 ("Rule 901 'merely requires some evidence sufficient to support a finding that evidence in question is what the proponent claims.'" (quoting Reed v. State, 811 S.W.2d 582, 587 (Tex. Crim. App. 1991))).
The Court of Criminal Appeals "has clarified that 'it is the jury's role ultimately to determine whether an item of evidence is indeed what its proponent claims; the trial court need only make the preliminary determination that the proponent of the item has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is authentic.'" Fowler, 544 S.W.3d at 848-49 (quoting Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015)); see Tienda, 358 S.W.3d at 638. The authentication requirement has been described as a "liberal standard of admissibility." Fowler, 544 S.W.3d at 849 (quoting Butler, 459 S.W.3d at 600 (citing Cathy Cochran, Texas Rules of Evidence Handbook 922 (7th ed. 2007-08))).
Authenticating evidence may be direct or circumstantial. Butler, 459 S.W.3d at 602. Rule of Evidence 901(b) provides an illustrative, though not exhaustive, list of examples of extrinsic evidence that satisfies the requirement of authentication. See Tex. R. Evid. 901(b)(1)-(10); Reed, 811 S.W.2d at 586; see also Tienda, 358 S.W.3d at 638 ("Evidence may be authenticated in a number of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence."). As with other types of evidence, cell phone text messages may be authenticated by "evidence sufficient to support a finding that the matter is what its proponent claims." Butler, 459 S.W.3d at 600 (quoting Tex. R. Evid. 901(a)). Text messages can be authenticated "in myriad ways, depending upon the unique facts and circumstances of each case, including through the testimony of a witness with knowledge or through evidence showing distinctive characteristics." Id. at 601 (citing Tex. R. Evid. 901(b)(1) and (4)).
However, the Court of Criminal Appeals has observed that although "cell phones tend to be personal and user-specific," whether a cell phone number may be associated with a particular user can be problematic because "cell phones can be purloined." Id.; Tienda, 358 S.W.3d at 641. Thus, evidence that a cell phone number is associated with a purported sender, standing alone, may be too attenuated to satisfy its authenticity. Butler, 459 S.W.3d at 601. But the test for authenticity, and thus relevance, is not stringent and requires only an initial showing that would be sufficient to support a finding that the matter in question is what its proponent claims. Campbell, 382 S.W.3d at 549; see Tex. R. Evid. 901(a). Where a sponsoring witness testifies to an association between a cell phone number and a purported author of a text from that number or purported recipient of a text to that number, other surrounding circumstances may "bridge the logical gap" to allow an inference that the purported author sent or received the text. See Butler, 459 S.W.3d at 602. For example, the text message's content, considered together with other circumstances, may support a conclusion that a text message was indeed sent by the purported author. See id.; see also Tex. R. Evid. 901(b)(4).
Here, the State presented evidence beyond the mere association between the cell phone number and appellant (as the purported sender and recipient of the texts). The cell phone was seized from appellant upon his arrest. It was in his sole possession; he was the sole occupant of the car when he was pulled over. No evidence showed that other individuals had access to or possession of the phone during the relevant time frame. When Lieutenant Middleton interviewed appellant at the jail after his arrest, appellant provided his cell phone number to the trooper, and that number matched the number associated with the sole user account on the cell phone from which the texts were sent and received; that user account was in the name "Lucio Atkinson." Moreover, three of the incoming texts were addressed to "Lucio." Also, the use of "slang" terms or "code words" associated with drug trafficking appeared consistently throughout the offered texts. See Butler, 459 S.W.3d at 602 (observing that "other evidence" that "might permit a proper inference that the purported author sent the message" "might include the message's 'appearance, contents, substance, internal patterns, or other distinctive characteristics'" (quoting Tex. R. Evid. 901(b)(4))).
Based on the appearance, content, and substance of the various text messages, taken in conjunction with the circumstances under which the cell phone was seized and the testimony reflecting that the text messages were associated with a single user account on the phone, in appellant's name, that matched the cell phone number that appellant confirmed to police was his, the trial court could have reasonably concluded that the State satisfied its burden of presenting a prima facie case of authenticity. See Tienda, 358 S.W.3d at 647 (concluding that circumstantial evidence was sufficient to establish prima facie case that justified admitting evidence and submitting ultimate question of authenticity to jury); see also Tex. R. Evid. 901(b)(4) (providing that authenticity may be established with evidence of "distinctive characteristics and the like," which includes "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances").
In other words, the trial court could have reasonably concluded that the evidence presented by the State was sufficient for a reasonable jury to conclude that the text messages were in fact incoming and outgoing text messages that were received and sent by appellant on his cell phone. Thus, we discern no abuse of discretion on the part of the trial court in admitting the complained-of exhibits over appellant's authentication objection. See Fowler, 544 S.W.3d at 848 (explaining that appellate review of trial court's ruling on authentication issues is done under deferential abuse-of-discretion standard); Tienda, 358 S.W.3d at 638 (explaining that "[i]f the trial court's ruling that a jury could reasonably find proffered evidence authentic is at least 'within the zone of reasonable disagreement,' a reviewing court should not interfere"). We overrule appellant's first point of error as it relates to authentication.
Hearsay
Appellant next complains about the trial court's admission of evidence of the text messages—which he characterizes as nontestimonial hearsay—over his hearsay objection and his confrontation objection under Crawford. We note that at trial appellant raised these objections only as to the incoming text messages: "as far as the 'from' — we'll call it the 'from side', the sender of the text messages go, I would object to their introduction that they are both hearsay and I think Crawford is applicable to those." Thus, to the extent that appellant now raises complaints based on these objections to all of the text-message evidence, he has not preserved these complaints as to the evidence of the outgoing text messages for appellate review. See Tex. R. App. P. 33.1(a)(1)(A) (imposing requirement of making specific request, objection, or motion to preserve complaint for appellate review).
Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). An out-of-court statement that is not offered for the truth of the matter asserted, but for some other reason, is not hearsay. Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999); Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). Thus, "[a]n extrajudicial statement . . . which is offered for the purpose of showing what was said rather than for the truth of the matter stated therein does not constitute hearsay." Dinkins, 894 S.W.2d at 347 (citing Crane v. State, 786 S.W.2d 338, 351 (Tex. Crim. App. 1990); Porter v. State, 623 S.W.2d 374, 385 (Tex. Crim. App. 1981); and Nixon v. State, 587 S.W.2d 709, 711 (Tex. Crim. App. 1979)).
Here, the record reflects that the State offered the evidence of the text-message exchanges on appellant's cell phone to demonstrate his familiarity with the "jargon" associated with narcotics trafficking. Thus, the incoming text messages were not offered for the truth of the matter asserted; that is, they were not intended to prove that a particular individual in fact wanted the particular drug requested from appellant. Rather, the content of the incoming messages, which used "slang" terms and "code words" for drugs, was intended to show appellant's intent to traffic the controlled substance that he possessed based on his receipt of such texts. See Dinkins, 894 S.W.2d at 347 (explaining that "[a]n extra-judicial statement or writing may be admitted as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter stated, therein, without violating the hearsay rule" (quoting Gholson v. State, 542 S.W.2d 395, 398 (Tex. Crim. App. 1976))).
As the State's expert later explained: "The slang words to me, just the fact that they are being used is just another element that renders my opinion that they're talking about buying and selling."
Accordingly, it would not be outside the zone of reasonable disagreement for the trial court to find that the incoming text-message evidence was not offered to prove the truth of the matter asserted in the incoming text messages but instead was being offered to provide the jury with relevant information concerning appellant's familiarity with and use of "slang" terms or "code words" associated with narcotics trafficking—that is, for what was said in the text messages. Thus, we discern no abuse of discretion on the part of the trial court in admitting the complained-of evidence of the incoming text messages over appellant's hearsay objection. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (stating that admissibility of out-of-court statement under exceptions to general hearsay exclusion rule is within trial court's discretion and that "a reviewing court should not reverse unless a clear abuse of discretion is shown"). We overrule appellant's first point of error as it relates to his hearsay complaint.
Right of Confrontation
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; see Pointer v. Texas, 380 U.S. 400, 403 (1965); De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). This procedural guarantee bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior opportunity to cross examine the witness. Bullcoming v. New Mexico, 564 U.S. 647, 658 (2011); Crawford v. Washington, 541 U.S. 36, 59 (2004); De La Paz, 273 S.W.3d at 680. This limitation applies only to testimonial statements because only testimonial statements cause the "declarant" to be a "witness" within the meaning of the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 821 (2006) (citing Crawford, 541 U.S. at 51). Thus, the Confrontation Clause does not bar the admission of nontestimonial hearsay. Michigan v. Bryant, 562 U.S. 344, 354 (2011); Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim. App. 2011). The threshold question in determining whether the trial court erred in admitting hearsay evidence in violation of the Confrontation Clause, therefore, is whether the evidence is testimonial in nature. Sanchez, 354 S.W.3d at 485; Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).
Again, we observe that the evidence of the incoming text messages—which were not offered for the truth of the matter asserted—were not hearsay under the Rules of Evidence. See Tex. R. Evid. 801(d)(2). Thus, in addressing appellant's confrontation complaint, we focus on the "nontestimonial" aspect of the out-of-court statements, which is dispositive of this complaint even if the text messages were hearsay.
The text messages in this case were informal statements, and their subject, the method of transmission, and the circumstances of their communication weigh against a finding that they are testimonial statements. See Crawford, 541 U.S. at 51 (noting that testimonial statements are typically "formalized" materials that "were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial"). Appellant acknowledges that the incoming text messages at issue are "nontestimonial." Nevertheless, he asks this Court to "reconsider" the jurisprudence of the United States Supreme Court and the Texas Court of Criminal Appeals. See Bryant, 562 U.S. at 353 (confirming that Crawford "limited the Confrontation Clause's reach to testimonial statements"); Crawford, 541 U.S. at 68 (holding that Sixth Amendment Confrontation Clause bars admission of testimonial, out-of-court statement unless two "demands" of Clause are met: unavailability of declarant-witness and prior opportunity for cross-examination); Sanchez, 354 S.W.3d at 485 (explaining that Sixth Amendment does not bar admission of nontestimonial hearsay). Appellant asserts "that the Due Process standards of the Texas Constitution for criminal trials entertains a heightened protection against nontestimonial evidence offered against a defendant, when the State does not attempt to produce the declarant." Thus, he urges us "to reconsider this distinction [between testimonial and nontestimonial statements] and find that the right of confrontation does apply to nontestimonial hearsay, but in a lesser degree."
Under the federal Due Process Clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV, § 1. Under the Texas Due Course of Law Clause, "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Tex. Const. art. I, § 19. The Texas Constitution uses the words "due course of the law of the land" instead of "due process of law," and the federal Due Process Clause does not specifically mention disfranchisement. Otherwise, the wording of the two provisions is substantially similar. The language of these two clauses is "nearly identical," and there is no meaningful distinction between "due course" and "due process." Strutz v. State, No. 03-16-00666-CR, 2018 WL 1937382, at *4 (Tex. App.—Austin Apr. 25, 2018, no pet.) (mem. op., not designated for publication) (citing University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)). We assume that appellant's reference to "the Due Process standards of the Texas Constitution" intends to refer to the "due course of law" provision of the Texas Constitution.
Appellant never asserted this argument—that the Texas Constitution affords a greater right of confrontation and extends to non-testimonial statements—to the trial court when objecting to the admission of the incoming text messages. In the trial court, appellant argued that "Crawford is applicable to [the incoming text messages]," which is a reference to Crawford v. Washington, 541 U.S. 36 (2004), and, implicitly, the Confrontation Clause of the United States Constitution. See U.S. Const. amend. VI. On appeal, however, appellant now cites the confrontation provision and the due course of law provision of the Texas Constitution. See Tex. Const art. I, §§ 10, 19. He never mentioned either of these provisions in the trial court; he in no way informed the trial court he was arguing that the admission of the complained-of incoming text-message evidence violated his rights to confrontation or due course of law under the Texas Constitution. See Tex. R. App. P. 33.1(a)(1)(A) (imposing preservation requirement); Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016) ("[A] general or imprecise objection will not preserve error for appeal unless 'the legal basis for the objection is obvious to the court and to opposing counsel.'" (quoting Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006))); cf. Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App. 2018) (explaining that "trial courts must be presented with and have the chance to rule on the specific constitutional basis for admission because it can have such heavy implications on appeal").
Furthermore, appellant never argued that the Texas Constitution's right to confrontation provides any greater right of confrontation than the Sixth Amendment or that, in this context, the Texas Constitution's right to due course of law provides greater rights than the Eighth Amendment Due Process Clause. Cf. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (holding that, "by failing to distinguish the rights and protections afforded under the Texas due course of law provision from those provided under the Fourteenth Amendment before the trial judge in this context, [the defendant] failed to preserve his complaint that the due course of law provides greater protection for appellate review").
It was not obvious from appellant's trial objections that he was asserting Texas Constitutional grounds for the exclusion of the complained-of incoming text-message evidence; he never mentioned to the trial court the Texas Constitution, the words "due course of law," or any other authority relating to the Texas Constitution to support the position that he now asserts on appeal. Under these circumstances, this complaint was not preserved for appellate review. Accordingly, we overrule appellant's first point of error as it relates to this complaint—that the admission of the incoming text-message evidence violated his right of confrontation under the Texas Constitution—due to lack of preservation.
Rule 403
Also in his first point of error, appellant contends that the trial court abused its discretion by admitting the text-message exhibits over his Rule 403 objections.
At trial, appellant objected to the trial court's admission of State's Exhibits #4 through #20, the summary reports of the text-message exchanges, because some of the drugs mentioned in the text messages were not drugs involved in his case—this is, they were not drugs found in appellant's possession when he was arrested:
I would also make a 403 objection in that some of the items in here — obviously I'm not as up-to-date on the slang terms, but I think that there may be potential that this could confuse the issues as in some of these slang terms referenced might not be drugs that are related to this case in any way.The trial court took a brief recess to review the exhibits and then overruled appellant's Rule 403 objection.
When the State began to show the exhibits during the testimony of its expert, appellant again objected under Rule 403:
I would argue that under 403 the unfair prejudice is substantially — I'm sorry, the probative value is substantially outweighed by the unfair prejudice to the defendant in that their substances listed in — in this — in these texts that the client did not possess and there's no evidence of him possessing them, the physical evidence.Appellant then requested a running objection, which the court granted. Appellant sought clarification of the court's ruling "as far as the 403 and the unfair prejudice," and the trial court confirmed that the Rule 403 objection was overruled.
The prosecutor then confirmed that "the Court has done [the] balancing test on 403 for all of the text messages; is that fair[.]" The court responded:
Yes. And just so the record is clear, I have reviewed the content of each of those exhibits, 4 through 20, and I have — I do find that the probative value is not outweighed by the prejudicial effect. And that my understanding is the State's main argument is that they're offering that to show the element of intent to deliver; is that correct?The prosecutor agreed, and the court stated: "All right. Then I have performed that balancing test and I do overrule that objection."
Rule 403 of the Texas Rules of Evidence allows for the exclusion of otherwise relevant evidence if its probative value is substantially outweighed by the danger of, among other things, "unfair prejudice" or "confusing the issues." Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). "The probative force of evidence refers to how strongly it serves to make the existence of a fact of consequence more or less probable." Gonzalez, 544 S.W.3d at 372; accord Davis, 329 S.W.3d at 806.
"'Unfair prejudice' refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Davis, 329 S.W.3d at 806; accord Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). All testimony and physical evidence are likely to be prejudicial to one party or the other. Davis, 329 S.W.3d at 806; Jessop v. State, 368 S.W.3d 653, 694 (Tex. App.—Austin 2012, no pet.). "To violate Rule 403, it is not enough that the evidence is 'prejudicial'—it must be unfairly prejudicial." Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). It is only when there exists "a clear disparity between the degree of prejudice produced by the offered evidence and its probative value that Rule 403 is applicable." Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); accord Davis, 329 S.W.3d at 806; see Johnson, 490 S.W.3d at 911 ("Under Rule 403, the danger of unfair prejudice must substantially outweigh the probative value.").
"'Confusion of the issues' refers to a tendency to confuse or distract the jury from the main issues in the case." Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007); see Gigliobianco, 210 S.W.3d at 641. "Evidence that consumes an inordinate amount of time to present or answer, for example, might tend to confuse or distract the jury from the main issues." Casey, 215 S.W.3d at 880 (quoting Gigliobianco, 210 S.W.3d at 641); see Wiley v. State, 74 S.W.3d 399, 407 n.21 (Tex. Crim. App. 2002) (explaining that danger of "confusion of the issues" and "misleading the jury," as basis for excluding evidence, "arises when circumstantial evidence tends to sidetrack the jury into consideration of factual disputes only tangentially related to the facts at issue in the current case; "[i]n short, the evidence is a 'rabbit trail'").
When conducting a Rule 403 analysis, the trial court must balance:
(1) the inherent probative force of the proffered item of evidence along with, (2) the proponent's need for that evidence against, (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.Gonzalez, 544 S.W.3d at 372 (quoting Gigliobianco, 210 S.W.3d at 641-42). These factors may blend together in practice. Gigliobianco, 210 S.W.3d at 642.
The probative force of evidence refers to how strongly it serves to make the existence of a fact of consequence more or less probable. Gonzalez, 544 S.W.3d at 372; Gigliobianco, 210 S.W.3d at 641. Here, the evidence of the text-message exchanges, which included the use of "slang" terms and "code words" associated with narcotics trafficking, established that, during the two weeks prior to the day of his arrest when he was found in possession of 244 tablets of Clonazepam (and six other substances), appellant was engaged in frequent and repeated communications with others about various drugs and the possible sale of them. This evidence tended to prove that appellant was engaged in narcotics trafficking and, therefore, that on the day the Clonazepam was found in his possession, he possessed the controlled substance with an intent to deliver it.
As for the State's need for the evidence, "[w]e evaluate the State's need for the evidence by looking at whether the fact related to a disputed issue and whether the State had other evidence establishing that fact." Gonzalez, 544 S.W.3d at 372; State v. Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005). While the State had other evidence suggestive of narcotics trafficking—such as the quantity and variety of substances that appellant possessed and the way the substances were packaged—appellant asserted in his statements to Lieutenant Middleton during the jail interview that the Clonazepam that he possessed was "for personal use" and denied that he sold drugs, claiming that "[he didn't] sell anymore." Appellant concedes in his brief that the State's need for this evidence was "critical."
Thus, concerning these two factors, it would not have been outside the zone of reasonable disagreement for the trial court to have found that the evidence was highly probative of the element of intent and, consequently, that the State's need for the evidence was great.
Regarding whether the evidence had a strong potential to impress the jury in an irrational and indelible way such that it would find guilt on grounds other than proof of the charged offense, the text-message evidence concerned appellant's involvement in the distribution of narcotics, and appellant was charged with a drug-trafficking offense. Further, the evidence was used by the State for the relevant non-character conformity purpose of showing appellant's intent to deliver the Clonazepam that he was charged with possessing. The evidence did not have "the capacity to lure the [jury] into declaring guilt on a ground different from proof specific to the offense charged." See Gonzalez, 544 S.W.3d at 373. Appellant's intent when he possessed the Clonazepam, as demonstrated by his repeated text-message exchanges reflective of drug trafficking, was not independent of the charged offense but directly part of it. For these reasons, it would not be outside the zone of reasonable disagreement for the trial court to conclude that text-message evidence did not have a strong potential to impress the jury in such a way that it would irrationally find guilt on an improper basis. See, e.g., Vasquez, 67 S.W.3d at 239-40 (concluding that challenged evidence was directly relevant to case because it was used to show motive for committing offense and therefore did not have tendency to suggest decision on improper basis).
Further, the text-message evidence was not only directly relevant to appellant's intent concerning the substance in his possession, see Tex. R. Evid. 401 (evidence is relevant if it makes material fact more or less probable), but was also relatively simple and straightforward. Thus, it did not have a tendency to confuse or distract the jury from the main issues in the case, see Casey, 215 S.W.3d at 880, nor did it have the potential to lead the jury to consideration of factual disputes that were only tangentially related to the issues in the case, see Wiley, 74 S.W.3d at 407 n.21.
Finally, while the State presented the text-message evidence through several witnesses—Special Agent Sauer, who performed the digital forensic examination of appellant's phone and explained that process, and the State's expert witness, who testified about his qualifications as an expert and then explained, based on his knowledge and experience, what the "slang" terms and "code words" in the text messages meant and were indicative of—the time needed to develop this evidence was not overly extensive. Nor was the time such that it distracted the jury from consideration of the indicted offense given that appellant's intent at the time of his possession was relevant to the charged offense. Moreover, the evidence was not repetitive but was unlike any other evidence presented.
Considering all the Rule 403 factors, we cannot conclude that the probative value of the evidence of the complained-of text-message evidence was substantially outweighed by the danger of unfair prejudice or confusion of the issues. In light of the State's burden of proof and the matters placed in issue by the defense, we cannot say that the trial court abused its discretion in admitting the complained-of exhibits at trial. See Mechler, 153 S.W.3d at 439 ("When an objection on 403 grounds is raised at trial, [appellate courts] review the judge's ruling for an abuse of discretion.").
As part of his complaint about the trial court's ruling on his Rule 403 objections, appellant also maintains that the trial court failed to conduct the requisite balancing test under Rule 403 before admitting State's Exhibits #4 through #20. He asserts that the trial court's "boiler plate language [tracking the language of Rule 403] is completely devoid of analysis" and that the trial court was required to "show [its] work on the record."
Once a Rule 403 objection is asserted, the trial court must engage in the balancing test required by that rule. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998); Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). Citing to Montgomery v. State, appellant contends that the trial court must "show its work" when conducting the balancing test. See 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh'g). However, "Montgomery simply stands for the proposition that when a Rule 403 objection is made, the trial court must conduct a balancing test concerning the probative value and potential unfair prejudice of the evidence in question." Hung Phuoc Le v. State, 479 S.W.3d 462, 469 (Tex. App.—Houston [14th Dist.] 2015, no pet.). "Rule 403 does not require that the balancing test be performed on the record." Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001, pet. ref'd); see Williams, 958 S.W.2d at 195 (stating that "a trial judge is not required to sua sponte place any findings he makes or conclusions he draws when engaging in this test into the record"); see also Perez v. State, 562 S.W.3d 676, 688 (Tex. App.—Fort Worth 2018, pet. ref'd) (recognizing that "[c]ourts have uniformly held that a [R]ule 403 analysis does not have to be conducted on the record"); see, e.g., Distefano v. State, 532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd); Belcher v. State, 474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.); Bibbs v. State, 371 S.W.3d 564, 576 (Tex. App.—Amarillo 2012, pet. ref'd); Greene v. State, 287 S.W.3d 277, 284 (Tex. App.—Eastland 2009, pet. ref'd); Colvin v. State, 54 S.W.3d 82, 85 (Tex. App.—Texarkana 2001, no pet.). In overruling a Rule 403 objection, the trial court is presumed to have applied a Rule 403 balancing test unless the record indicates otherwise. Hitt, 53 S.W.3d at 706; see Williams, 958 S.W.2d at 195-96 (stating that "a judge is presumed to engage in the required balancing test once Rule 403 is invoked and we refuse to hold that the silence of the record implies otherwise").
Here, the trial court did not make a record of any findings and conclusions under Rule 403—and appellant made no request for the court to do so—but no such record was required. The record here reflects that the trial court entertained appellant's Rule 403 objection, taking a recess to review the exhibits before making its ruling and explicitly stating on the record that it had conducted the balancing test. So, we assume that the court properly performed the balancing test even in the absence of a recitation of its specific findings and conclusions on the record. See Williams, 958 S.W.2d at 195.
For the above reasons, we overrule appellant's first point of error as it relates to his complaint about the trial court's ruling on his Rule 403 objections.
Lesser-Included-Offense Instructions
In his second point of error, appellant argues that the trial court erred in denying his request for an instruction on the lesser-included offense of "mere possession."
Appellant was charged with possession with intent to deliver a controlled substance, Clonazepam, in an amount of twenty-eight grams or more but less than 200 grams. The record indicates that after an informal charge conference, which was not on the record, the trial court included an instruction on the lesser-included offense of possession of a controlled substance, Clonazepam, in an amount of twenty-eight grams or more but less than 200 grams— that is, possession of the charged amount of Clonazepam without the intent to deliver it. During the charge conference on the record, appellant requested instructions on the lesser-included offenses of possession with intent to deliver a controlled substance, Clonazepam, in an amount of less than twenty-eight grams, see Tex. Health & Safety Code § 481.114(a) (defining offense of possession with intent to deliver Penalty Group 3 controlled substance), (b) (establishing that such offense is state jail felony if amount of controlled substance, by aggregate weight, is "less than 28 grams"), and possession of a controlled substance, Clonazepam, in an amount of less than twenty-eight grams, see id. § 481.117(a) (defining offense of possession of Penalty Group 3 controlled substance), (b) (establishing that such offense is class A misdemeanor if amount of controlled substance, by aggregate weight, is "less than 28 grams"). The trial court denied those requested instructions.
We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017), superseded on other ground by statute, Melissa's Law, 2019, 86th Leg., R.S., ch. 738, § 2, sec. 22.011(f), 2019 Tex. Sess. Law Serv. 2049, 2050 (codified at Tex. Penal Code § 22.011(f)(2)); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth procedure for appellate review of claim of jury charge error). If the jury charge error has been properly preserved by an objection or request for instruction, see Tex. Code Crim. Proc. arts. 36.14, 36.15, as it was here, reversal is required if the appellant has suffered "some harm" from the error, which means the error "was calculated to injure the rights of the defendant." Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020); see Almanza, 686 S.W.2d at 171.
We use a two-part analysis to determine if a defendant is entitled to a jury-charge instruction on a lesser-included offense. Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim. App. 2018) (citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993)); Safian v. State, 543 S.W.3d 216, 219 (Tex. Crim. App. 2018). First, we determine whether the requested offense is a lesser-included offense of the charged offense. Roy v. State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017); Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). If so, we must decide whether the admitted evidence at trial supports giving the instruction to the jury. Bullock, 509 S.W.3d at 924-25 (citing Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011)); Wortham v. State, 412 S.W.3d 552, 554 (Tex. Crim. App. 2013).
Neither party disputes that possession with intent to deliver a controlled substance in an amount of less than twenty-eight grams and possession of a controlled substance in an amount of less than twenty-eight grams are lesser-included offenses of possession with intent to deliver a controlled substance in an amount of twenty-eight grams or more but less than 200 grams. See Tex. Code Crim. Proc. art. 37.09(1) ("An offense is a lesser included offense if . . . it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]")). Thus, we proceed to the second step.
The second step of the lesser-included-offense analysis is to determine whether there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Ritcherson, 568 S.W.3d at 671; Safian, 543 S.W.3d at 220. That requirement is met if there is (1) evidence that directly refutes or negates other evidence establishing the greater offense and raises the lesser-included offense or (2) evidence that is susceptible to different interpretations, one of which refutes or negates an element of the greater offense and raises the lesser offense. Ritcherson, 568 S.W.3d at 671 (citing Saunders v. State, 840 S.W.2d 390, 391-92 (Tex. Crim. App. 1992)); Sweed, 351 S.W.3d at 68. This second step is a question of fact and is based on the evidence presented at trial. Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012); see Ritcherson, 568 S.W.3d at 671.
We consider all admitted evidence without regard to the evidence's credibility or potential contradictions or conflicts. Ritcherson, 568 S.W.3d at 671; Roy, 509 S.W.3d at 317. Although anything more than a scintilla of evidence may suffice to raise a lesser offense, the evidence must establish that the lesser-included offense is "a valid, rational alternative to the charged offense." Roy, 509 S.W.3d at 317; Bullock, 509 S.W.3d at 925. Further, "it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Sweed, 351 S.W.3d at 68 (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)); see Roy, 509 S.W.3d at 317; Bullock, 509 S.W.3d at 925. "Meeting this threshold requires more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense." Cavazos, 382 S.W.3d at 385; see also Ritcherson, 568 S.W.3d at 671 (explaining that "a defendant is not entitled to a lesser-included offense instruction based on the absence of evidence").
Appellant argues that he was entitled to the requested lesser-included-offense instruction of "mere possession" because "whether he was guilty only of possession of a controlled substance was a fact issue for the jury to decide." As support for his assertion that the instruction should have been given, appellant highlights his statement to Lieutenant Middleton during the jail interview in which he acknowledged that the Clonazepam that he possessed was his but said that it was "for personal use." He argues that this evidence "supplied the jury with some evidence to find Appellant only guilty of possession of a controlled substance and acquit on the intent to deliver a controlled substance." However, the trial court included an instruction on the lesser-included offense of "mere possession of Clonazepam"—that is, possession of the charged amount of Clonazepam without the intent to deliver—in the jury charge.
To warrant a lesser-included-offense instruction on the lesser-included "mere possession" offense based on a lesser amount of Clonazepam, which is the "mere possession" requested instruction that the trial court denied, there must be some affirmative evidence in the record demonstrating that the amount of Clonazepam that appellant possessed, without the intent to deliver it, was less than twenty-eight grams. Appellant directs us to none. The evidence that appellant cites has no bearing on the amount of Clonazepam that appellant possessed; it relates to the issue of whether appellant had the intent to deliver the Clonazepam that he possessed. Appellant does not cite to or make any argument about any "affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense," see Wortham, 412 S.W.3d at 558, with respect to possession of a lesser amount of Clonazepam. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); see also Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (emphasizing that appellate court has no obligation to construct and compose issues, facts, and arguments for appellant); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008) (affirming that appellate court has "no obligation to construct and compose appellant's issues, facts, and arguments 'with appropriate citations to authorities and to the record'" (quoting Tex. R. App. P. 38.1)); see, e.g., Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (concluding that point of error, which contained "no argument or citation to any authority that might support an argument" that defendant was guilty only of lesser-included offense, was inadequately briefed and presented nothing for review as court "is under no obligation to make appellant's arguments for her").
Because an instruction for the "mere possession" offense described by appellant in his argument was in fact given by the trial court in the jury charge and because appellant fails to demonstrate how the evidence supported the denied lesser-included offense of "mere possession" of less than twenty-eight grams as a "valid rational alternative" to the charged offense, we cannot conclude that error exists in the jury charge. We overrule appellant's second point of error.
Alleged Failure to Consider Full Punishment Range
Appellant elected to have the trial court decide his punishment. See Tex. Code Crim. Proc. art. 37.07(2)(b). At the beginning of the punishment phase, the State presented evidence of appellant's criminal history, through documentary evidence, and of his violation of bond conditions, through the testimony of the community-supervision officer who supervised appellant on bond (before it was revoked). The trial court then recessed the proceeding on appellant's request so appellant could prepare his punishment witnesses. When the punishment hearing resumed, appellant presented three witnesses: his mother, his sister, and his child's mother. Appellant then spoke to the court on his behalf, although he did not take the witness stand and was not questioned by the State. The parties then presented argument to the court, after which the court sentenced appellant, pursuant to the habitual offender provision of the Penal Code, see Tex. Penal Code § 12.42(d), to eighty years in prison.
In his third point of error, appellant asserts that he was deprived of his constitutional rights to due process under the United States Constitution and due course of law under the Texas Constitution because the judge failed to consider the full range of punishment. To support his assertion, he cites to comments that the judge made immediately before assessing appellant's sentence, including the remark that, while the hearing was recessed, the judge "thought about it for a week to try to figure out some reason to be lenient" but "just [couldn't] come up with a reason because of the choices and repeat choices that he's made over and over and over." Appellant further asserts that the trial judge "failed to consider [appellant's] apology or any other mitigation [evidence] offered by Appellant."
"A trial judge is given wide latitude to determine the appropriate sentence in a given case." Tapia v. State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015); see Barrow v. State, 207 S.W.3d 377, 381 (Tex. Crim. App. 2006) ("The discretionary assessment of punishment within legislatively prescribed boundaries has long been ingrained and accepted in American jurisprudence."); see also United States v. Booker, 543 U.S. 220, 233 (2005) (recognizing "the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range"); Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (noting historic authority "for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute"). However, despite a judge's wide discretion in determining the proper punishment, "[d]ue process requires a neutral and detached hearing body or officer." Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)); see Villareal v. State, 348 S.W.3d 365, 372 (Tex. App.—Austin 2011, pet. ref'd) (observing that right to due process guarantees right to fair trial in fair tribunal). A trial court denies a defendant due process during the punishment phase if the court arbitrarily refuses to consider the entire range of punishment or any mitigating evidence and imposes a predetermined sentence. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005); see Gagnon, 411 U.S. at 786-87; see also Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014) ("The unfettered right to be sentenced by a sentencing judge who properly considers the entire range of punishment is a substantive right necessary to effectuate the proper functioning of our criminal justice system.").
Here, our review of the record reveals nothing indicating that the trial judge, in sentencing appellant as he did, did not consider the full range of punishment. We disagree that the judge's comments demonstrate that he failed to consider the entire range of punishment. As the Supreme Court has recognized:
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task.Liteky v. United States, 510 U.S. 540, 550-51 (1994).
The record here, including the entirety of the judge's comments when sentencing appellant, reflects that, after hearing evidence from the State, the judge felt that a harsher sentence was warranted. However, in an effort to consider the full range of punishment, the judge kept an open mind and "tried to figure out some reason to be lenient," "hoping" evidence presented by appellant would mitigate against a harsher sentence in favor of leniency. However, the mitigating evidence presented by appellant did not persuade the judge that a more lenient sentence was appropriate. The judge's comments make clear that he assessed appellant's punishment based on the evidence of appellant's criminal history and repeated criminal conduct. Further, the judge's statement that he thought about appellant's punishment during the week the punishment hearing was recessed does not indicate that the judge predetermined appellant's sentence. Rather, taken in context with all of the judge's comments, the comment reflects the judge's thoughtful consideration, based on the evidence presented, about the appropriate sentence for appellant. The judge explicitly reviewed the evidence presented by both appellant—listing several of the mitigating factors his witness testified to—and the State—listing the previous crimes reflected in appellant's criminal history. See, e.g., Jaenicke v. State, 109 S.W.3d 793, 795-97 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (noting that trial court stated that it listened "carefully to the testimony of the witnesses," had "heard many jurors reach verdicts on cases probably not as bad as this where they assessed the maximum punishment," and was "forced to assess the maximum punishment in this case" and concluding that statements did not constitute fundamental error because they did not show "that the trial court failed to consider the full range of punishment," "that the court based its assessment of punishment on verdicts from other cases," or that court "predetermined punishment").
The judge's comments—which lamented the fact that he did not find that the mitigating testimony of appellant's punishment witnesses sufficiently outweighed appellant's criminal history and repeated disregard for the law—expressed his view of the evidence and do not reflect bias, a failure to consider the full range of punishment, or the imposition of a predetermined sentence (i.e., a sentence he decided before hearing any evidence or argument). See Liteky, 510 U.S. at 555-56 (explaining that "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women . . . sometimes display" do not establish bias on behalf of trial court); Hernandez v. State, No. 03-07-00040-CR, 2010 WL 391850, at *22 (Tex. App.—Austin Feb. 5, 2010, no pet.) (mem. op., not designated for publication) ("When reviewing allegations of bias, we must bear in mind that trial courts are given broad discretion to express themselves and their opinions, including opinions that may be 'critical, disapproving, and even hostile toward' a party or his attorney." (quoting Abdygapparova v. State, 243 S.W.3d 191, 199 (Tex. App.—San Antonio 2007, pet. ref'd))).
Absent a clear showing of bias, we presume a trial court was neutral and detached. Tapia, 462 S.W.3d at 44; Brumit, 206 S.W.3d at 645. No such clear showing is present here. Considering the record of the punishment hearing as a whole, we find no clear indication that the trial court arbitrarily refused to consider the full range of punishment or refused to consider mitigating evidence and imposed a predetermined sentence. The record does not contain a clear showing of bias sufficient to overcome the presumption that the trial court acted properly in a neutral and detached manner. Accordingly, we overrule appellant's third point of error.
Alleged Denial of Fair Trial
Relatedly, in his fourth point of error, appellant contends that "the totality of the judge's decisions violated his right to fair trial and impartial judge." In making this assertion, appellant relies on his previously alleged errors that are the subject of his complaints in this appeal—the trial court's evidentiary rulings relating to the admission of the text-message evidence, the trial court's purported denial of his requested jury-charge instruction on "mere possession," and the trial judge's comments before sentencing appellant, which, he maintains, showed the court's failure to consider the full range of punishment—as indications of the trial judge's bias.
Initially, we note that the term "bias" does not include "all unfavorable rulings toward an individual." Hernandez, 2010 WL 391850, at *21 (quoting Abdygapparova, 243 S.W.3d at 198). Rather, the term only refers to a "favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . ., or because it is excessive in degree." Id. (quoting Liteky, 510 U.S. at 550). In order for alleged bias to deny a party due process, the party must demonstrate a "deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555; see also Kemp v. State, 846 S.W.2d 289, 305 -06 (Tex. Crim. App. 1992) (explaining that bias must be of such degree as to deny party "due process of law").
Appellant cites to no authority supporting his contention that a trial court's discretionary rulings alone—even if erroneous—demonstrate judicial bias. Furthermore, given that we concluded that the individual errors alleged on appeal were not in fact errors, we cannot conclude that the cumulation of the trial court's non-erroneous decisions denied appellant a fair trial and an impartial judge. Nothing in the record supports a conclusion that the trial court's rulings or actions were "wrongful or inappropriate" or that they reflect a "deep-seated . . . antagonism" toward appellant.
Moreover, when reviewing whether impermissible bias was present, appellate courts must bear in mind that courts enjoy a presumption of judicial impartiality. See Fuelberg v. State, 447 S.W.3d 304, 311 (Tex. App.—Austin 2014, pet. ref'd); Abdygapparova, 243 S.W.3d at 198. Nothing in the record in this case overcomes that presumption. Accordingly, we overrule appellant's fourth point of error.
Imposition of Attorney's Fees
At the conclusion of the punishment hearing, the trial judge sentenced appellant in open court as follows:
I find you guilty of Count 1 of the indictment and I assess your punishment at 80 years in the Institutional Division of the Texas Department of Criminal Justice. I assess a $5,000 fine, order that you reimburse the county for the court costs and court-appointed attorney fees.The trial court's written judgment of conviction reflects that appellant's punishment is "EIGHTY (80) YEARS CONFINEMENT IN THE INSTITUTIONAL DIVISION, TDCJ; $5000.00 FINE; COURT COSTS AND COURT-APPOINTED ATTORNEY'S FEES."
In his fifth point of error, appellant asserts that the trial court improperly assessed attorney's fees as part of his punishment. The State agrees that appellant should not be ordered to reimburse court-appointed attorney's fees because of his indigent status.
A trial court's authority to order a defendant to repay the cost of court-appointed legal counsel is expressly conditioned on the court determining that the defendant has the financial resources and ability to pay. Tex. Code Crim. Proc. art. 26.05(g). The defendant's financial resources and ability to pay are explicit critical elements under article 26.05(g) that must be supported by the record evidence. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). The record reflects that the trial court found appellant to be indigent prior to trial and appointed counsel to represent him. Once an accused is found to be indigent, he is presumed to remain so through the proceedings absent proof of a material change in his circumstances. Tex. Code Crim. Proc. art. 26.04(p); Mayer, 309 S.W.3d at 557. Nothing in the record indicates a change in appellant's financial circumstances or demonstrates that appellant has the ability to pay court-appointed attorney's fees. In fact, the record reflects that after trial, the trial court again found appellant to be indigent and appointed counsel to represent him on appeal.
However, while the trial court orally ordered appellant to reimburse the county for court-appointed attorney's fees, and the written judgment of conviction recites "court-appointed attorney's fees" as part of appellant's punishment, neither the trial court's pronouncement in open court nor the written judgment imposes a monetary amount for attorney's fees. Nor does the record contain a bill of costs that attributes any portion of the costs assessed against appellant to attorney's fees. Thus, it does not appear that any actual amount for court-appointed attorney's fees has been ordered or imposed.
Nevertheless, because we agree with appellant and the State that the record does not support the assessment of any amount of court-appointed attorney's fees, we sustain appellant's fifth point of error. We modify the judgment to delete the phrase "court-appointed attorney's fees" from the punishment description to remove appellant's obligation to pay attorney's fees in any amount. See Mayer, 309 S.W.3d at 557 (holding that when evidence does not support order to pay attorney's fees, proper remedy is to delete order).
Clerical Error in Judgment
In reviewing the trial court's written judgment of conviction for appellant's fifth point of error, we observe that the judgment contains additional non-reversible error. The judgment states that the "Statute for Offense" is "481.114(c) Health & Safety Code." This statutory provision establishes that the offense of possession with intent to deliver a controlled substance is a second-degree felony when the offense amount possessed is twenty-eight grams of more but less than 200 grams, which is the case here. However, the applicable statutory provisions for the drug offense for which appellant was convicted also include subsection (a) of section 481.114 of the Health & Safety Code, the statutory provision that defines the offense of possession with intent to deliver a controlled substance listed in Penalty Group 3 or 4.
This Court has authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment of conviction to reflect that the "Statute for Offense" is "481.114(a), (c) Health & Safety Code."
CONCLUSION
Having concluded that the trial court did not abuse its discretion by admitting the text-message evidence, that no error exists in the jury charge relating to an instruction on "mere possession," that the record does not reflect that the trial judge failed to consider the full range of punishment in sentencing appellant, and that the record does not reflect that appellant was denied his right to a fair trial or impartial judge, but having found that the trial court improperly ordered appellant to pay court-appointed attorney's fees and that the judgment contains non-reversible error as set out above, we modify the written judgment to delete the phrase "court-appointed attorney's fees" from the punishment assessed and to reflect that the "Statute for Offense" is "481.114(a), (c) Health & Safety Code." As so modified, the trial court's judgment of conviction is affirmed.
/s/_________
Edward Smith, Justice Before Justices Goodwin, Kelly, and Smith Modified and, as Modified, Affirmed Filed: March 12, 2021 Do Not Publish