Duke v. State

Full title: BYRON JEROME DUKE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 12, 2011

Nos. 05-10-00577-CR, 05-10-00578-CR, 05-10-00788-CR (Tex. App. Jul. 12, 2011)

Opinion

Nos. 05-10-00577-CR, 05-10-00578-CR, 05-10-00788-CR

Opinion Filed July 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause Nos. F09-50936-PH, F08-63342-SH, F10-20785-H.

Before Justices RICHTER, LANG, and FILLMORE.

OPINION

Opinion By Justice FILLMORE.

Byron Jerome Duke appeals his sentences on three different offenses, asserting the trial court erred by basing its sentencing determinations on extraneous bad acts which the State did not prove beyond a reasonable doubt that Duke committed. We affirm the trial court's judgment.

Background

Duke pleaded guilty to family-violence assault and burglary of a habitation. Pursuant to Duke's plea agreements, the trial court deferred adjudicating Duke guilty on either of the offenses and placed Duke on community supervision for three years in the assault case and for seven years in the burglary of a habitation case. The trial court also assessed a fine of $2500 in the burglary of a habitation case. While he was on community supervision, Duke was charged with theft of property with a value of at least $1500 but less than $20,000. The State also moved to adjudicate Duke guilty on the assault and burglary of a habitation offenses, alleging Duke committed another offense while on community supervision and failed to pay the required fees. Without the benefit of a plea agreement as to punishment, Duke pleaded guilty to the theft charge and pleaded true to the allegations he violated the terms of his community supervision in the assault and burglary of a habitation cases. In the theft case, the trial court admitted into evidence Duke's signed judicial confession in which Duke admitted he committed the crime exactly as alleged in the indictment. The State then offered Duke's pleas of true in the assault and burglary of a habitation cases in which Duke admitted he committed a new offense while on community supervision and failed to pay the fees required by the terms of his community supervision. The State also requested the trial court take judicial notice "of the entire contents of the Court's file in each case." Duke's attorney affirmatively stated, "I have no objections." The trial court admitted Duke's pleas of true into evidence and stated, "I take notice." Included in the trial court's file on both the burglary of a habitation and assault offenses was a probable cause affidavit. As relevant here, the affidavit described the chase and apprehension of Duke by three police officers following the burglary. According to the affidavit, at one point in the chase, Duke threw a can containing loose change at the face of one of the officers. After being apprehended, Duke stated he was having marital problems and needed money to return to Louisiana. Duke testified during the plea hearing and admitted he stole tires and rims from a police "bait" trailer that was parked by the side of the road. He was delinquent on the payment of his community supervision fees and "was trying to get caught up with the money issues." He saw an opportunity to "get some money real quick" and made a "poor decision" to take the tires and rims. Duke admitted he had three previous convictions for "assault and family violence," two previous convictions for evading arrest, and one misdemeanor theft conviction. Duke requested the trial court continue his community supervision so that he could get a job and support his family. After closing arguments, the trial court stated,

And I also noted, Mr. Duke, that you told the police officers when you got arrested for the burglary that you were burglarizing because you needed money because you were having your own problems and you needed to move to Louisiana, or some such thing, and that was before you threw some stuff at the police officers that were trying to arrest you.

The trial court found Duke guilty of theft, sentenced him to two years' confinement, and assessed a $500 fine. It also adjudicated Duke guilty on the assault and burglary of a habitation offenses and sentenced him to confinement for five years and twelve years, respectively.

Discussion

In his sole issue, Duke contends the trial court erred during the sentencing hearing by considering extraneous bad acts which the State did not prove beyond a reasonable doubt that Duke committed. Duke specifically argues the evidence is legally insufficient to support the trial court's statement that Duke "threw some stuff at the police officers" during the chase following the burglary or made any statements following the burglary. In reviewing a challenge to the sufficiency of the evidence, we determine whether, considering all of the evidence in the light most favorable to the verdict, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the fact finder's determinations of the witnesses' credibility and the weight to be given their testimony because the fact finder is the sole judge of those matters. Brooks, 323 S.W.3d at 899. It is the role of the fact finder to resolve any conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Gear v. State, No. PD-1069-10, 2011 WL 2409267, at *3 (Tex. Crim. App. June 15, 2011) During the punishment phase of trial, the State may offer evidence as to any matter the trial court deems relevant to sentencing, including evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007); see also Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2010). In this case, the State requested that the trial court take judicial notice of the entire file in both the burglary of a habitation and assault cases. Duke's counsel affirmatively stated he had no objection to the trial court doing so and, therefore, waived any objection to the trial court taking judicial notice of the probable cause affidavit in the files. See Tex. R. App. P. 33.1(a); Kubosh v. State, 241 S.W.3d 60, 66-67 (Tex. Crim. App. 2007) (by failing to make timely request to challenge propriety of taking judicial notice of bonds, appellant "procedurally defaulted" any complaint about whether bonds were proper subject of judicial notice); Broussard v. State, 598 S.W.2d 873, 874 (Tex. Crim. App. 1980) (by failing to timely object, defendant waived any complaint about trial court taking judicial notice during probation revocation hearing of evidence from prior trial).¹ The trial court stated it was taking judicial notice of the entirety of the files. The files contained the probable cause affidavit sworn to by Dallas police officer M. Irizarry. The affidavit stated that during the chase following the burglary, Duke threw a can of loose change at Officer Lucio Cano's face. The affidavit also stated that, following Duke's apprehension, he verbally admitted he committed the burglary and stated he was having marital problems and needed money to return to Louisiana. This evidence, together with any reasonable deductions or logical inferences drawn from it, was sufficient to allow the trial court to find beyond a reasonable doubt that Duke "threw some stuff at the police officer" when the police officers were trying to arrest him for the burglary and made inculpatory statements following his arrest. Accordingly, the trial court did not err by considering the complained-about extraneous acts in making the sentencing determinations. We overrule Duke's sole issue and affirm the trial court's judgments.