Opinion
06-21-00096-CR
05-20-2022
KARL H. HILL, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: March 7, 2022
On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 50015-B
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
SCOTT E. STEVENS, JUSTICE
After a jury found Karl H. Hill guilty of aggravated robbery, he was sentenced to thirty-two years' confinement in prison and ordered to pay court costs. Hill appeals, maintaining that (1) the evidence was insufficient to support the jury's guilty verdict, (2) the trial court erroneously admitted evidence identifying Hill as a gang member, (3) the trial court erred when it assessed duplicative court costs, and (4) the trial court erred when it assessed time payment fees. For the reasons below, we modify the trial court's judgment by deleting the assessment of duplicative court costs, including the time payment fee, and affirm the trial court's judgment, as modified.
Hill was tried in one proceeding for two separate counts of aggravated robbery because they both arose out of the same criminal episode. He appeals his other conviction of aggravated robbery in our cause number 06-21-00097-CR.
The factual background addresses both counts of aggravated robbery.
Around 2:30 p.m. on September 15, 2016, Cathy Chipman was performing her teller duties at LeTourneau Federal Credit Union (FCU) in Longview, Texas, when she saw a person run through the front doors of the building. Chipman stated, "They were coming up -- you know, they ran straight up to the -- to my teller station, waving a gun, very anxious. It was pretty scary, pretty threatening." The individual, later alleged to have been Hill, told Chipman to give him "[her] money." He then turned to Kathy Schluter, who was working next to Chipman as a teller, and demanded money from her as well.
According to Chipman, the robber was armed with a silver revolver, and he pointed the weapon at her in a threatening manner. Chipman said that the person was wearing a red, long- sleeve, "sweatshirty jacket"; sweatpants; black tennis shoes; and a mask covering his face. Fearing for her safety, Chipman complied with the robber's demands. After he received the money from both tellers, he "turned around and ran back out." Schluter activated FCU's alarm, and Chipman ran to lock the door. Chipman said that it was hot that day, around 92 degrees outside and that she found it unusual for a person to be wearing long sleeves and sweats in such hot weather.
Chipman described the sweatpants as being "[g]ray or light gray or khaki."
On cross-examination, Chipman stated that the security cameras had been working that day and that she had reviewed the footage prior to trial. The recording showed that, because there was a wall directly behind her teller station, there was nowhere for Chipman to go when she was approached by the robber. Chipman knew something was about to happen because she saw the robber running into the building, which was unusual. She continued, "And as soon as he hit the lobby, he -- almost, he was -- he had the gun in his hand."
The security camera recording was admitted with no objection from Hill. Still photographs taken from the recording were also admitted into evidence over no objection.
In the courtroom, Chipman could not identify Hill as being the individual who committed the robbery. However, she stated that the individual sounded like a young man. Chipman was asked, "[I]f you had to describe who you think was under that mask, as far as a person, a race, what -- what did it sound like to you?" Chipman replied, "It sounded like a black person, an African-American." Chipman explained that the robber's whole body was covered from "head to toe." She agreed that, because she could not see the individual, it was possible that it could have been a Caucasian, African American, or Hispanic person, as well as a male or a female.
Schluter's testimony was similar to Chipman's version of events. According to Schluter, she "saw someone running across the parking lot." She continued, "And he came through the doors waving his gun." At the time of the incident, Schluter did not believe that the robber pointed his gun at her, but when she reviewed the security camera footage, she realized that he had. Schluter described the incident as being "scary," and she said that she was in fear for her life.
Schluter explained that the individual was wearing a mask, and she felt like she had to comply with his demands. Her description of the robber's clothing was consistent with Chipman's description. Based on her thirty-one years of experience working with the public, Schluter believed that the individual was a male, and she would "guess African-American." Like Chipman, Schluter could not identify Hill in the courtroom.
On the day of the robbery, Jennifer Townes had been working as a teller in the FCU drive-through window. Around 2:30 p.m., she heard what sounded like a person saying, "Give me all your money." She immediately knew that the FCU was being robbed. Townes only had enough time to quickly glance at the individual, but she said that the person was wearing a red shirt and was carrying what she believed to be a revolver. Townes heard the individual say, "Have a good day[, ]" and then he left the building. Townes could not identify the robber as being male or female, and she testified that the person could have been African American, Caucasian, or Hispanic. Although she saw that the robber had a gun, Townes could not testify as to whether it was real or not. Regardless, in her mind, the gun was real, and she believed that her life was in danger.
Bennie Cooks, an officer with the Longview Police Department (LPD), was dispatched to the FCU in response to a call about a robbery. On his way to the scene, Cooks saw an individual in a nearby field wearing a red shirt. Around 150 to 200 yards away from the FCU, Cooks found a red shirt that he believed matched the description of some of the suspect's clothing. K-9 Officer Anthony Minyard arrived at the scene, and his dog began tracking the suspect. Not far from where the shirt had been located, the dog "hit" on some cash. The officers also located two masks.
Minyard explained that his dog, Dalo, used the red shirt's scent to track the suspect. After losing a "good track," Minyard and Dalo began "track[ing] backwards, back towards the [FCU], and that's when [they] located some more money and the masks that had been discarded." Minyard stated, "It was two cloth masks. I believe one was a bluish color and one was maybe a light purple, along with . . . several bills of United States currency laying next to the mask on the ground."
LPD Detective Glenn Derr, an evidence specialist, processed the scene by taking photographs, dusting for fingerprints, and gathering other evidence. At trial, Derr identified a photograph of the red sweater that had been found across the street from the FCU. Ultimately, Derr was informed that the suspect had been wearing gloves so there would be no usable fingerprints at the scene. Later, Derr received a phone call from James Reeves, who was also a detective with the LPD, informing him that he knew of a possible witness who might have the shoes that the suspect had been wearing. Derr collected the shoes, put them in an evidence bag, and sent the bag to the Texas Department of Public Safety crime laboratory.
According to Kirby Deloach, a detective with the LPD assigned to the crime scene unit, the red sweatshirt and the two masks that had been located near the FCU were sent to the crime lab. A sample of an individual's DNA was also sent for analysis. At trial, Deloach identified the sweatshirt and the masks as the evidence found near the FCU. He also identified the black and white tennis shoes that had been recovered.
On the day of the robbery, Hill rode his bicycle to Alfredia Jackson's home. Jackson had been in a long-term relationship with Hill's uncle. While there, Hill asked Jackson if his uncle had any shoes that he could borrow. Even though Hill already had on a good pair of Nike tennis shoes, Jackson gave him a black and white pair of his uncle's shoes. Jackson said that Hill had been wearing blue shorts and a white t-shirt when he arrived, which according to Jackson, seemed appropriate because it was so hot outside. Despite the heat, Hill put on a pair of gray sweatpants and a red "thermal" shirt over his shorts and t-shirt. Jackson mentioned to Hill that it was hot outside, to which he replied, "It's cold." After his brief visit, Hill left Jackson's house on the bicycle.
The trial court took judicial notice that the temperature was between 91 and 92 degrees the day of the robbery.
According to Jackson, Hill had been carrying the clothes in what she believed to be a blue bag. When he left, he took the blue bag with him.
According to Jackson, the building where the robbery occurred was located "probably a minute, two minutes" away from her home if a person were traveling by car, and around ten minutes by bicycle. Hill did not tell Jackson how long he would be gone, but she said that he returned to her house within twenty or thirty minutes and that he was wearing only his blue shorts and his white T-shirt. She did not know where the red shirt or the sweatpants were, but Hill returned the black and white shoes. Jackson was shown the red shirt and the black and white shoes that Deloach had identified earlier. When asked if those were the items Hill had been wearing the day of the robbery, Jackson said that she was "positive" they were one and the same.
Jackson also testified that, after Hill rode the bicycle back to her house, he took a shower, which was odd because she had no gas for hot water, and Hill was aware of that. Also, Hill had never taken a shower at her house. After he showered, Hill redressed in his tee-shirt and shorts, and then left in a green truck. Hill returned to Jackson's house the next morning and gave her around $190.00 to pay for her light bill. Hill said that she had not asked him for the money and that he had not offered to pay her bill the previous day or any day before that. According to Jackson, Hill did not visit her house very often.
About a week later, Jackson learned of the robbery when she saw the security recording on the television news. When asked how she was positive that it was Hill, Jackson said, "Because he had the -- I seen him put the red thermal and gray sweatpants on, and them shoes." She continued, "And when I seen it, I said, 'Oh, my God, that's Toot, ' or whatever. And I kind of like went out of my mind." Jackson's sister said that, if Jackson knew anything about the robbery, she needed to "let them know," because her sister worked at a bank. A couple of days later, Jackson met with LPD Detective James Reeves and told him that she "knew something --[she] . . . watched the news and [she] might know something about who . . . did the crime with the robbery." Jackson turned over the black and white shoes to the police department.
"Toot" is Hill's nickname.
Jackson identified Hill in the courtroom. And, from the photographs that had been taken from the security recording, Jackson identified him, along with the clothes he had been wearing that day. Jackson said she was absolutely positive that Hill was the person who robbed the FCU.
Reeves testified that, on September 15, 2016, he received a dispatch relating to a robbery that had occurred at the FCU. While at the FCU, Reeves spoke to Chipman and Schluter, who informed him that the robber had displayed a weapon during the robbery. At trial, Reeves was shown the photographs taken from the security camera, as well as the clothes and the masks that had been admitted into evidence. His testimony regarding the process of obtaining that evidence was consistent with the other witnesses' testimony. Reeves also stated that he believed that the items had been worn by the robber. According to Reeves, it was about 91 or 92 degrees the afternoon of the robbery and, in his opinion, the clothing that had been found was not ideal for such hot weather. Reeves identified Hill in the courtroom and stated that the results of the DNA test matched Hill's DNA. Reeves interviewed Hill prior to his arrest, and in his opinion, the information Hill gave him was not credible.
At the time of trial, Reeves had retired from his law enforcement position.
Reeves also confirmed the version of events Jackson had given him the day after the robbery. He opined that her prior statements to him were very similar to the testimony she had given at trial. Yet, on cross-examination, Reeves revealed several discrepancies in Jackson's testimony:
• Reeves recalled that Jackson's mother sat in on the interview with Jackson because Jackson had emotional or mental issues. But, at trial, Jackson testified, "It started -- she was there, but . . . the detective didn't want to talk to her, he wanted to talk to me, so she had to go wait out in the waiting room."
• Reeves agreed that Jackson told him that the shirt Hill put on at her house was burgundy, not red.
• Reeves recalled that Jackson told him that Hill arrived at her house the day of the robbery "somewhere after 1:00 o'clock," not eleven or twelve o'clock as she had claimed at trial.
• Reeves agreed that Jackson had told him that Hill had pulled the clothes out of a blue bag and that he had left the blue bag at her house when he left, even though Jackson had testified at trial that he had taken the blue bag with him.
• Despite Jackson testifying that she did not ask about a reward, Reeves said that, during Jackson's interview, her mother repeatedly asked about one, and that Jackson said, "Man, that could help me pay the rest of my bills."
• Reeves also agreed that Jackson had told him that Hill's bike was either blue or gray, with some red writing on it, but at trial Jackson testified that "[i]t [was] probably green, gray."
• Reeves also believed that Jackson had told him that her mother called to tell her about the security camera recording on the news. Yet, Jackson had testified that she had seen the recording at her sister's house.
In addition, Reeves stated that, when he contacted Hill's uncle to ask him if he had any black and white shoes, the uncle said that he did not have any matching that description. That said, Reeves explained that he was not privy to any discussions that might have been had with Hill's uncle prior to Reeves speaking to him about the shoes.
After being advised by Reeves that Hill was a suspect in the robbery, and that he had obtained a search warrant to collect Hill's DNA, LPD Detective Jerry Sullivan drove to west Texas to collect the sample from Hill by use of a buccal swab, which Sullivan explained was "basically . . . a saliva sample," by using a "6-inch wooden, cotton-tipped applicator." After swabbing both sides of Hill's cheeks, and in Hill's presence, Sullivan placed the swabs back in the original packaging and put them in an envelope, which he then sealed. The samples were sent to the Texas DPS's crime lab, where they were later analyzed. Sullivan was shown the envelope and identified the swabs inside it as containing the DNA he had taken from Hill. Drew Wallace Dean, a forensic scientist with the Texas DPS, testified that, on September 15, 2016, he received a package containing the black and white shoes, the sweater, and the two masks. Pursuant to preliminary testing, Dean found presumptive DNA/blood on the purple mask and trace DNA on the sweater and the shoes. Dean prepared a certificate of analysis and a sworn affidavit, as well as a report. Dean sent the items on for further analysis. Those documents were entered into evidence over Hill's objections.
Cassandra Canela, a forensic scientist with the Texas DPS, testified that she received a buccal swab from Hill. She testified that the purple and blue masks contained a DNA profile. According to Canela, four different people contributed DNA to both the purple mask and the blue mask. As to the purple mask, Canela explained, "Obtaining this mixture profile is 2.8 septillion times more likely that the DNA came from Karl Hill and three unknown individuals than if the DNA came from four unrelated, unknown individuals." She said, "So based on the likelihood ratio results, Karl Hill cannot be excluded as a possible contributor" to the DNA on the mask.
Canela explained that 2.8 septillion is equal to "2-8 with 23 zeros after it."
The results were similar in regard to the red mask. "Obtaining the mixture profile is 148 sextillion times more likely if the DNA came from Karl Hill and three unknown individuals than if the DNA came from four unrelated, unknown individuals. Based on the likelihood ratio result, Karl Hill cannot be excluded as a possible contributor to the profile."
Based on the evidence presented, the jury found Hill guilty of both counts of aggravated robbery. He was sentenced to thirty years' confinement in prison for each offense. Hill appeals.
II. Discussion
A. Legally Sufficient Evidence Supports Hill's Conviction
In his first point of error, Hill maintains that there was insufficient evidence to show (1) that Hill was the person who committed the robbery and (2) that he used a deadly weapon during the course of the robbery.
1. Standard of Review
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.-Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
In drawing reasonable inferences, the trier of fact "may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life." Duren v. State, 87 S.W.3d 719, 724 (Tex App-Texarkana 2002, pet struck) (citing Manrique v State, 994 S.W.2d 640, 649 (Tex Crim App 1999) (Meyers, J, concurring)). As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may believe all, some, or none of any witness's testimony. Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). We give "almost complete deference to a jury's decision when that decision is based on an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
Legal "sufficiency of the evidence [is] measured by the elements of the offense as defined by a hypothetically correct jury charge." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
2. Legally Sufficient Evidence Supported the Jury's Finding that Hill Was the Perpetrator
In February 2020, the State indicted Hill for two counts of aggravated robbery, alleging that, on or about the 15th day of September 2016, Hill
did then and there while in the course of committing theft of property and with intent to obtain or maintain control of said property intentionally and knowingly threaten or place Kathy Chipman in fear of imminent bodily injury or death, and [Hill] did then and there use or exhibit a deadly weapon, to-wit: a firearm.
As to the second count of aggravated robbery, the State's indictment alleged that Hill did then and there while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally and knowingly threaten or place Cathy Schluter in fear of imminent bodily injury or death, and [Hill] did then and there use or exhibit a deadly weapon, to-wit: a firearm[.]
Hill does not dispute that a robbery occurred at the FCU on September 15, 2016. Rather, he contends that there was insufficient evidence to support the jury's finding that he was the individual who robbed the FCU. We disagree.
Jackson testified that Hill came to her house the day of the robbery, wearing appropriate hot-weather clothing-shorts and a t-shirt. Shortly after his arrival, Hill asked Jackson if he could borrow some of his uncle's shoes. Jackson complied with his request, temporarily loaning him a pair of black and white shoes. Around that same time, Jackson watched Hill put on sweats and what she referred to as a red thermal shirt over his t-shirt and shorts. Hill left her house on his bicycle but returned about twenty or thirty minutes later. According to Jackson, the FCU was located very near Jackson's home and was about ten minutes away by bicycle. When Hill returned to Jackson's home, he was no longer wearing the sweats and red thermal shirt but was instead dressed in his shorts and t-shirt.
Hill also unexpectedly returned to Jackson's home the next day, giving her money to pay her bills. Jackson said that Hill had never paid, or offered to pay, her bills. About a week later, Jackson saw the security camera recording on the television news and recognized Hill immediately because he was wearing the sweats, the red thermal shirt, and his uncle's black and white shoes. She was so certain that Hill was the robber that she contacted the LPD. Also, Jackson repeatedly testified that she was positive that the person in the security camera recording was Hill.
Hill makes much ado about the inconsistencies in Jackson's testimony. Yet, the jury was within its discretion to believe some, all, or none of her testimony. See Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). "[T]he jury is the sole judge of the credibility and weight to be attached" to her testimony, "and when the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination." See id. at 8.
Along with Jackson's testimony, several officers testified that a red shirt, gray sweatpants, and some cash were found very near the FCU. Further, in the security camera recording, the robber appeared to be wearing a red shirt, sweatpants, and a mask. Two masks were also found near the FCU, and a forensic scientist testified that, as to the purple mask, that "mixture profile [was] 2.8 septillion times more likely that the DNA came from Karl Hill and three unknown individuals than if the DNA came from four unrelated, unknown individuals." Similar results were returned regarding the blue mask. From that evidence, the jury could have believed that it was extremely likely that Hill had worn those masks.
After reviewing all the evidence in the light most favorable to the jury's verdict, we find that legally sufficient evidence supported the jury's conclusion that Hill was the individual who robbed the FCU.
3. Legally Sufficient Evidence Supported the Jury's Deadly-Weapon Finding
Next, Hill contends that there was legally insufficient evidence to support the jury's finding that he used or exhibited a firearm during the robbery. Specifically, Hill maintains that the State failed to prove that the item in the robber's hand was actually a firearm, and not some other object.
When an accused threatens a victim with a gun, the act itself suggests that the gun is a firearm rather than simply a gun of the non-lethal variety, such that the fact-finder may draw a reasonable inference or make a reasonable deduction that the gun used in the commission of the crime was a firearm. Cruz v. State, 238 S.W.3d 381, 388 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.-Corpus Christi 1988, pet. ref'd).
Here, Chipman testified that the robber was armed with a silver revolver and that he pointed the weapon in her direction while demanding that she give him money. Schluter testified that she saw a person come through the FCU doors while waiving a gun, that she was frightened by his behavior, and that she felt like she had to comply with his demands. Although Schluter could not specifically recall whether the robber pointed his gun directly at her, the FCU security camera recording and the still shots taken from the recording clearly showed a person pointing a gun within feet of Chipman's and Schluter's faces.
Applying Cruz, Benavides, and similar cases, we conclude that such an inference or deduction-that Hill used a firearm-was permissible from the evidence presented. See Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. [Panel Op.] 1979) (based on testimony by one victim that the defendant put a gun in her face and by a second victim that the defendant pointed a gun at him, the jury could have found beyond a reasonable doubt that the gun used and exhibited by the defendant during the robbery, which was never recovered, was a firearm); Brown v. State, 212 S.W.3d 851, 860-61 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (evidence was sufficient to support a finding that the gun used was a firearm based on witness testimony that a gun was pointed at her and the children); Davis v. State, 180 S.W.3d 277, 286 (Tex. App.-Texarkana 2005, no pet.) (evidence was legally sufficient to allow the jury to conclude that the defendant used a firearm where the victim testified that the defendant pointed a gun at her and she was afraid she was going to die that night, even though she was not asked to identify the type of weapon and the record contained no other relevant evidence on that point).
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that there was legally sufficient evidence for the jury to have found that the weapon, sometimes described as a gun, was, in fact, a firearm.
We, therefore, overrule Hill's first point of error.
B. Evidence of Hill's Gang Affiliation
During the punishment phase of trial, William Eric Harkins identified himself as a LPD detective in the special investigation and apprehension unit and as a gang investigator assigned to the Texas Anti-Gang Task Force for East Texas. Harkins had been previously designated as an expert in regard to the Texas Anti-Gang Task Force. As a part of his position, Harkins identified and maintained documents in the Texas Department of Public Safety's gang investigative database relating to criminal street gangs in the Longview area for the Texas gang investigative database. According to Harkins, the "Crips" criminal street gang "is probably one of the oldest known gangs throughout the country, not just [in] the state of Texas." The gang originated in Los Angeles during the riots between the Crips and the Bloods. Yet, Crips have members actively operating in East Texas. Harkins explained that, in order to be documented as a gang member, a person usually, but not always, has to meet two "criteria, which range from being arrested with other gang members on gang-related crimes, to self-admissions on the street, . . . whether it be another police officer or [a reliable] informant maybe that police officers use."
Harkins correctly identified Hill in the courtroom and explained that Hill was documented as an active member of the 5-Deuce Hoover Crips in the Texas gang investigative database. Hill met two of the criteria necessary to be labeled a gang member, that is, (1) a reliable informant claimed that Hill was a gang member, and (2) during a traffic stop in 2014, Hill admitted that he was a gang member. According to Harkins, if a gang member has not been associated with a gang for five years, he may be removed from the database. That was not the case with Hill. At the time of trial, he was documented in the database as an active gang member. On cross-examination, Harkins conceded that he had never interviewed Hill nor had he ever spoken to him. Instead, Hawkins explained that his testimony was based on information that had been collected from the database.
5-Deuce Hoover is a subset of Crips.
1. Hill Did Not Preserve His Complaint Regarding Expert Qualifications
First, Hill complains that the trial court abused its discretion when it permitted Harkins to testify as an expert during the punishment phase of the trial that, in his opinion, Hill was a gang member. The State contends that Hill waived his complaint because he failed to argue this particular point at trial. We agree with the State.
After hearing the State's proffered testimony from Harkins, Hill objected, stating,
Again, Your Honor, what he's testifying to, . . . I did not have these reports until this morning. I have no way to cross-examine him completely. Officer Rockett is not here. All [Harkins is] testifying to is an out-of-court statement that is written into a report by an officer that I have -- to a report I just got this morning. There's no way for me to now go and call -- there's no way to defend against this. . . .
. . . .
And so -- like I said, if we -- it may have been a different conversation if he was testifying to some personal knowledge that he had, okay? That may be a different conversation. He's not. He's basically reading from a report that I didn't have access to nor was given by the State of Texas.
"As a prerequisite to presenting a complaint for appellate review, the record must show that" it "was made to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling . . . with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context" and that either the trial court "ruled on the request, objection, or motion, either expressly or implicitly," or "refused to rule on the request, objection, or motion, and the complaining party objected to the refusal." Tex.R.App.P. 33.1(a). "The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him the opportunity to rule on it; [and] (2) to give opposing counsel the opportunity to respond to the complaint." Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).
Here, although Hill objected to lack of notice and his inability to prepare for trial, he did not argue that Harkins was not qualified to testify as an expert in the area of the Texas gang investigative database or Hill's inclusion in it. Consequently, he has waived that issue on appeal.
Hill erroneously maintains that Harkins testified to his opinion that Hill was a gang member. Yet, the record shows that Harkins testified only to his knowledge that Hill appeared in the gang investigative database as a member of the 5-Deuce Hoover Crips, and nothing more. Outside the presence of the jury, the State offered the following evidence in relation to Harkins's competency to testify as an expert in regard to Hill's inclusion in the gang member database: (1) Harkins had been assigned to the Texas Anti-Gang Task Force for East Texas for roughly two and a half years; (2) he kept a record of documented gang members in the Longview area; (3) he was aware of, and understood, the Texas gang investigative database; (4) he received well over 200 hours of training relating, identifying, and maintaining gang records; (5) he had experience in investigation and documentation of street gangs; (6) he was familiar with the Crips criminal street gang; (7) he had testified previously as an expert in street gangs; and (8) he had been designated as an expert in regard to the Texas Anti-Gang Task Force. Clearly, Harkins had a sufficient background in the gang investigative database and Hill's inclusion in it. Likewise, Harkins's law enforcement experience went to the exact matter on which he gave his opinion. See Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). Consequently, even had Hill preserved this particular issue, his complaint remains meritless.
2. Hill Did Not Preserve His Complaint of Inadmissible Hearsay or a Confrontation Clause Violation
Next, Hill maintains that the trial court erred in admitting Harkins's testimony because it constituted inadmissible hearsay and violated his right to confront the witnesses against him. The State contends, among other things, that Hill waived these complaints on appeal.
A portion of Hill's objection made after the State's proffer of Harkins's testimony is as follows:
[By Counsel for Hill]: Judge, we would object to Detective Harkins' testimony in general. We obviously -- he's listed on the witness list along with a myriad on [sic] other people they always list on the witness list. But we had no
reports anywhere in any of the discovery that we had that listed or stated in any way that Mr. Hill may or may not be a gang number [sic]. There was no mention of gang activity, there was no mention in any discussions that we had of any potential or possible gang activity. The only thing listed on here is that in one of these reports, allegedly back in 2014, supposedly admission to an Officer Rockett, who's obviously not here today.
My understanding of Detective Harkins' testimony is that he has no personal knowledge of Karl Hill, other than to say, "This is Karl Hill," because of a picture on the front. He never interviewed Karl Hill, never talked to Karl Hill, never had any discussions with Karl Hill regarding any potential gang activity. Highly prejudicial to my client, Judge. We have no way to prepare or know specifically what they're alleging to be able to muster any defense as to whether or not this occurred or didn't occur or anything else. All we have is Detective Harkins standing up and saying, you know, [Hill] told someone, supposedly seven years ago, that he was a gang member. That's -- like I said, we're just finding out about this this morning.
Obviously that's prejudicial to us. We can't form any defense, we can't defend or cross-examine him effectively when we just found out about it this morning.
. . . .
I'm trying not to -- . . . the State[] said that they just found out about this this morning. This isn't, like, a lost video, Judge. This isn't something that just popped up, you know, 15 minutes ago, "Oh, we found this video. We didn't know it existed." This has -- supposedly this -- this evidence has been there since -- I'm guessing 2007, so -- and this was just provided to us this morning Judge. Again, we have no way to combat this when we're just getting it right now. So obviously we would object to his testimony at all.
The record shows that Harkins was designated as an expert on March 22, 2021.
When Hill stated, "Again we have no way to combat this when we're just getting it right now," (emphasis added), we presume he was referring to the documents showing that Hill was included in the gang database or his criminal history. Just prior to the trial court's ruling, Hill also stated,
Again, Your Honor, what he's testifying to, I have no -- I did not have these reports until this morning. I have no way to cross-examine him completely. Officer Rockett is not here. All he's testifying to is an out-of-court statement that
is written into a report by an officer that I have -- to a report I just got this morning. There's no way for me to now go and call -- there's no way to defend against this.
The trial court then explained,
All right. Here's the Court's ruling. Article 39.14 is limited. It really only requires the State to disclose the name and address of the expert. That was done on March 22nd. Unless further ordered by the Court, there's no requirement to turn over the -- any reports or anything.
I will give the defense until 9:35, according to the clock on the wall, to review the reports that have been given. The reports themselves are almost entirely criminal history, with some additional few pages at the front. So it's not voluminous, the Court -- obviously the defense can cross-examine on what personal knowledge, but as far as his qualifications as an [sic] gang expert, if those are proven up, he can testify that Karl Hill, according to the database, is a registered gang member and that -- and it's proven that he is custodian or --custodian of the records, along with that, he can testify as to that. But I find that the -- while, obviously, I would have loved for this to have been turned over earlier -- that under the circumstances, that the reports themselves are not admissible --(Emphasis added).
In an effort to clarify the trial court's instructions, Hill asked, "The witness is being allowed to testify to the fact that Karl Hill is in the system as a gang member, correct? We're not introducing the evidence." The State responded, "I intend to ask the same questions I asked before, that, you know, 'You maintain the records.' And I asked specifically in relationship to Longview." The trial court then asked the State, "So as to the Longview incident, is it the State's intent to try and have Detective Harkins testify that the defendant made a statement [to Officer Rockett] verifying that he was a registered gang member from -- according to Harris County." The State responded, "According to the database, yes. But not any specifics out of Harris County." The trial court then overruled Hill's objection, granted him a running objection, and proceeded with Harkins's testimony.
Although Hill mentioned that Harkins was testifying to "an out-of-court statement," Hill never made a specific hearsay objection. When the trial court responded to Hill's objection and stated its reasoning for overruling Hill's objection to Harkins's testimony and the contents of the complained-of report, the trial court stated, "Here's the Court's ruling. Article 39.14 is limited. It really only requires the State to disclose the name and address of the expert." Article 39.14 of the Texas Rules of Criminal Procedure relates to discovery procedures and has no bearing on a hearsay objection. See Tex. Code Crim. Proc. Ann. art. 39.14 (Supp.). The trial court also made its reasoning clear when it gave Hill some time to review the complained-of evidence.
The record does not demonstrate that the trial court understood Hill's objection as a hearsay objection. Although the trial court also allowed Hill a running objection, the record does not specify, nor did Hill seek clarification, as to whether the running objection related to anything other than Hill's objection to the issue of lack of notice in receiving the report and learning of its contents. Thus, to the extent Hill complains that he objected to Harkins's testimony based on hearsay, Hill did not adequately inform the trial court of the basis of his objection, and he did not give the trial court the opportunity to rule on his specific hearsay complaint. See Tex. R. App. P. 33.1(a). As a result, Hill has waived the issue on appeal.
The same is true of Hill's claim of a Confrontation Clause violation.
C. Court Costs Error
Next, Hill contends that the trial court erred by assessing court costs in both judgments, that is, the judgment on appeal under this cause number (trial court cause number 50015-B) and the judgment on appeal under cause number 06-21-00097-CR (trial court cause number 50017-B).
A trial court, in a judgment of conviction, must order the criminal defendant to pay court costs. Tex. Code Crim. Proc. Ann. art. 42.16 (applicable when punishment is anything other than a fine); Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). Article 102.073 of the Texas Code of Criminal Procedure provides:
(a) In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.
(b) In a criminal action described by Subsection (a), each court cost or fee the amount of which is determined according to the category of offense must be assessed using the highest category of offense that is possible based on the defendant's convictions.
(c) This article does not apply to a single criminal action alleging only the commission of two or more offenses punishable by fine only.
Tex. Code Crim. Proc. Ann. art. 102.073.
When a defendant is convicted of two or more offenses in a single criminal action, the trial court must assess each court cost or fee only once against a defendant. See Tex. Code Crim. Proc. Ann. art. 102.073(a); see Cain v. State, 525 S.W.3d 728, 733-34 (Tex. App.- Houston [14th Dist. 2017, pet. ref'd) (trial court erred in assessing "identical overlapping" or duplicative costs against defendant). When a trial court erroneously assesses duplicative court costs for multiple convictions tried in a single criminal action, we retain court costs for the offense of the highest category. Tex. Code Crim. Proc. Ann. art. 102.073(b).
"In a single criminal action" has been construed to mean allegations and evidence of two or more offenses that are presented in a single trial or plea proceeding. See Hurlburt v. State, 506 S.W.3d 199, 201-03 (Tex. App.-Waco 2016, no pet.). Here, there is no dispute that the two separate cases against Hill were tried in a single criminal action.
Here, because Hill was convicted of two or more offenses in a single criminal action, the trial court could order payment of court costs only once. See Tex. Code Crim. Proc. Ann. art. 102.073(a); Cain, 525 S.W.3d at 733-34. In the judgment of conviction in this matter, the trial court assessed court costs in the amount of $290.00 and reimbursement fees in the amount of $40.00, for total costs of $330.00. In the judgment of conviction in cause number 06-21-00097-CR, the trial court assessed $355.00 in court costs and $40.00 in reimbursement fees. Hill maintains that the court costs and reimbursement fees in this cause (06-12-00096-CR) should be deleted, and the State agrees.
Accordingly, we sustain Hill's third point of error and modify the judgment and bill of costs in this matter by deleting the assessment of $290.00 in court costs and $40.00 in reimbursement fees.
D. Assessment of Time Payment Fees is Premature
In his fourth point of error, Hill maintains that the trial court erred when it assessed time payment fees in this cause number. The Texas Court of Criminal Appeals has recently concluded that a time payment fee like the one imposed in this case "must indeed be struck for being prematurely assessed because a defendant's appeal suspends the duty to pay court costs and therefore suspends the running of the clock for the purposes of the time payment fee." Dulin v. State, 620 S.W.3d 129, 129 (Tex. Crim. App. 2021). "As a consequence, even now, assessment of the time payment fee in this case would be premature because appellate proceedings are still pending." Id. The State concedes this point.
Hill also argues that the time payment fee statute is unconstitutional. Because we have found that the assessment of the time payment fee was premature, we decline to address that argument.
Here, Hill asks this Court to delete "the $15 time payment fee (included as part of the total costs) and the $25 contingent time payment fee in their entirety as prematurely assessed." Yet, it does not appear that the $25.00 contingent time payment fee was included in the clerk's bill of costs or the judgment. In addition, a time payment fee in the amount of $15.00 was included as a part of the court costs in the bill of costs, which we have already deleted from the bill of costs and the judgment of conviction in this case.
Accordingly, we sustain Hill's fourth point of error as to the $15.00 time payment fee, and deny as moot his request to delete the $25.00 contingent time payment fee.
III. Conclusion
We modify the trial court's judgment by deleting the $290.00 assessment in court costs and $40.00 in reimbursement fees and affirm the judgment, as modified.