Opinion
01-20-00127-CR
09-01-2022
KURT KAPPERMAN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish. Tex.R.App.P. 47.2(b).
On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1602677
Panel consists of Justices Landau, Hightower, and Rivas-Molloy.
MEMORANDUM OPINION
Rivas-Molloy Justice
A jury convicted Appellant Kurt Kapperman of the second-degree felony offense of online solicitation of a minor and, after finding the enhancement paragraph in the indictment to be true, assessed his punishment at sixty years' imprisonment. On appeal, Appellant argues (1) there is insufficient evidence to support his conviction because he was not identified in court, (2) the trial court erred by excluding him from the courtroom for the entirety of his trial, (3) the trial court abused its discretion by failing to conduct an informal inquiry into his competency, (4) the trial court erred by denying his challenges for cause and his request for additional peremptory challenges, (5) Texas Government Code Section 74.056(a) is unconstitutional as applied in his case, (6) the trial court erred by failing to sentence him in open court, and (7) the trial court assessed the wrong consolidated court cost and total amount.
We affirm the judgment of conviction, but reverse and remand the cause for a new trial on punishment. See Tex. Code Crim. Proc. art. 44.29(b).
Background
Appellant Kurt Kapperman ("Kapperman") was arrested and charged with online solicitation of a minor following a joint sting operation conducted by the Houston Police Department ("HPD") and other law enforcement agencies. The case was tried to a jury over six days in January 2020. As discussed in greater detail below, Kapperman was alleged to have contacted Detective W. Reiser ("Detective Reiser"), an undercover HPD officer, first using the social media platform MocoSpace and later through text messages, ultimately soliciting sex. Kapperman believed Detective Reiser was a 15-year-old girl and he requested to meet with her for oral sex and sexual intercourse. Detective Riser identified a location where the two could meet. When Kapperman arrived at the location, HPD arrested him.
For purposes of this opinion, we consider voir dire and the pretrial conference as part of Kapperman's trial.
A. Voir Dire and Pretrial Proceedings: January 21 - 23, 2020
On the first day of Kapperman's trial, Tuesday, January 21, 2020, the trial judge welcomed the venire panel and introduced them to Kapperman, his defense counsel, and the assistant district attorneys representing the State. The trial judge excused the panel less than a half hour later after Kapperman "fell out of his chair, seemed to lose consciousness, and then began shaking." Two emergency responders who were on the venire panel checked on Kapperman and determined he was breathing and did not need CPR. After memorializing the morning's events on the record, the trial court dismissed the venire panel and sent Kapperman to the hospital where he was examined and discharged later that day.
The next morning, on Wednesday, January 22, 2020, Kapperman returned to court for a pretrial conference. During the conference, the trial judge informed Kapperman that he was charged with online solicitation of a minor, a second-degree felony punishable by two to twenty years' incarceration and a fine of up to $10,000. The punishment range in Kapperman's case, however, was enhanced to five to ninety-nine years or life in imprisonment and a fine of up to $10,000 because he had a prior, juvenile adjudication for aggravated sexual assault of a child. The trial judge, the State, and the defense also discussed the evidence the State intended to present to the jury, other cases pending against Kapperman, and whether there was a plea offer on the table. At the end of the conference, the trial judge asked Kapperman if he wanted to consult with his attorney, and Kapperman replied that he did.
See Tex. Penal Code § 12.33 (stating second-degree felony is punishable by two to twenty years' incarceration and fine of up to $10,000).
See Tex. Penal Code § 12.32 (stating first-degree felony is punishable by five to ninety-nine years or life in imprisonment and fine of up to $10,000); id. § 12.42(b) ("Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the first degree."). Under certain circumstances, an adjudication in juvenile court may be used as a prior felony conviction to enhance the available punishment range in later criminal proceedings. See Tex. Fam. Code § 51.13(d). If a child is adjudged to have engaged in conduct constituting "a felony offense" and if the child is committed to a Texas Juvenile Justice Department facility, the juvenile adjudication "is a final felony conviction only for the purposes of Sections 12.42(a), (b), and (c)(1) or Section 12.425, Penal Code." Id. The Texas Juvenile Justice Department was formerly known as Texas Youth Commission. See Act of May 5, 2011, 82nd Leg., R.S., ch. 85, § 4.001(b), 2011 Tex. Gen. Laws 366, 441; see, e.g., In re N.G.-D., No. 03-14-00437-CV, 2016 WL 105948, at *1 n.1 (Tex. App.-Austin Jan. 8, 2016, no pet.) (mem. op.).
While awaiting an afternoon jury panel after the pretrial conference, Kapperman told the bailiff he was dizzy and might pass out. After talking with the jail physician, an ambulance was summoned to take Kapperman to the hospital for a second day in a row. A docket notation states that Kapperman "was lying on the jail floor and shivering [when the ambulance arrived], much like yesterday when he fell out of his chair during voir dire."
Kapperman appeared in court again the next morning, Thursday, January 23, 2020. When the trial judge asked about his well-being, Kapperman informed the judge that he had been examined at the hospital the night before and "they said everything looked good." He also stated that medical personnel had referred him to a cardiologist based on his self-reported history of respiratory infections and seizures. Kapperman told the judge he had gotten very little sleep the night before because he had not returned to his jail cell until 4 a.m.
The trial judge told Kapperman that she was beginning to suspect he was exaggerating his health problems to avoid trial and she warned him against such antics. She told Kapperman that his case would proceed to trial regardless and that she would bring a nurse to sit with him through trial if he wanted. Kapperman responded that he did not need a nurse to sit with him and he denied he was exaggerating his medical condition. He then told the trial court that he did not "feel like really we're all the way ready for trial" and he lacked confidence in his attorney. The trial judge assured Kapperman that it was "a pretty simple" case and she was confident that his appointed counsel would "do a good job." When asked if he had done everything he needed to do for trial, Kapperman's counsel responded:
My only concern, based on what I'm hearing this morning, is if he, in fact, is working with no sleep since 4:00 or 5:00 a.m. from the previous day. That concerns me from the standpoint I've got to rely on Mr. Kapperman to be attentive to help me. That's my concern with proceeding today.
The trial court acknowledged defense counsel's concerns and told the parties they would select a jury that morning and then return Kapperman to jail by noon to allow him to get a good night's rest before hearing testimony the next day.
Voir dire began after a brief recess. The court began by welcoming the new venire panel and asking Kapperman to stand as she introduced him to the panel, stating, "The man on trial is Mr. Kapperman, K-a-p-p-e-r-m-a-n. His name is Kurt." Voir dire proceedings remained largely unremarkable until the trial judge examined the individual venire members challenged for cause.
After questioning Juror No. 18, the trial court dismissed her for cause. Juror No. 18 stated she could not be fair to Kapperman because her husband had been a victim of sexual abuse as a child, and she had been working her church's coalition against sex trafficking for several years. As she was exiting the courtroom, Kapperman told Juror No. 18, "God bless you" purportedly loud enough for the other venire members to hear. After sending the venire panel out, the judge told Kapperman she was concerned he was attempting to influence potential jurors and she admonished him against communicating with the venire members in any way, including waving, nodding, or winking at them.
The jury panel was brought back in and individual juror questioning resumed. The trial court granted Kapperman's challenges to the next two jurors and dismissed them. Defense counsel then challenged Juror No. 32 based on the argument she would hold Kapperman's decision not to testify against him. The trial court asked Juror No. 32 if she could follow the court's instructions not to consider Kapperman's decision not to testify for any purpose. The juror responded "Yes, ma'am," and the trial court denied Kapperman's challenge. At that point, Kapperman exclaimed, "This is just unconstitutional, man. This is a setup, man. It's just unconstitutional. It's a f***ing setup." After escorting Kapperman from the courtroom, the trial judge stated on the record (and outside the presence of the jurors):
For the record, the defendant has just been screaming. He threw his chair down. And so he has made a big scene in front of the jurors and the bailiffs had to kind of push him toward the back. Let's get some extra bailiffs down here. And we'll send the jury out to the hall when they get here and I will talk to him. I don't know what's going to happen. Just call some people and get them down here.
Kapperman returned to the courtroom in handcuffs with the venire panel present. The trial judge then sent the venire panel to another courtroom to wait until the court was ready to proceed with voir dire. When the judge tried to talk to Kapperman about his outburst, Kapperman complained that his handcuffs were too tight and he made derogatory remarks towards the bailiff. The trial judge told Kapperman several times she needed to talk to him, but Kapperman kept insisting the handcuffs were too tight as he directed expletives towards the bailiffs including calling one a "f***ing uncle tom" and "f***ing bit***-*ss cop." At the court's instruction, the bailiffs checked Kapperman's handcuffs and a sergeant from the Sheriff's office confirmed that the bailiffs were following proper procedure. The bailiffs stated there was a finger's width between the defendant's wrists and the handcuffs. When the judge announced that the "handcuffs [were] properly placed," Kapperman then exclaimed, "This is why the police get away with things like this, man." Kapperman then complained about the treatment he received when he was first arrested, including the fact he was tased, which prompted the trial judge to announce, "All right. If he won't quit talking, we're going to gag him. Let me explain this to you, sir. The law requires that you hear the proceedings against you. It's in the constitution." At that point, Kapperman responded, "Yes ma'am. I want to talk to MHU," referring to the jail's mental health unit. Rather than responding to Kapperman's request, the trial judge admonished Kapperman about the possible consequences of his behavior:
The law gives me the right, if I have to, to tie you to the chair. It gives me the right to gag you. And if I do that, it's going to look to the jury like you are out of control and like I think you're dangerous. And it can cause you to get more punishment. It's very unfortunate that you did-that you threw the chair, you started screaming, and the way you behaved, not going to the holdover cell. It's very unfortunate you did that in front of the jury. I suggest that if you don't want to get extra
punishment because of your wild and violent behavior that you sit there quietly. So do I need to gag you?
Despite the trial court's warnings, Kapperman continued to complain about the handcuffs and claimed the bailiffs were treating him like "an animal" at which point he again started to call the bailiff an "uncle tom." This prompted the trial judge to state:
Sir, I don't allow anyone in this courtroom to make derogatory racial comments.
. . .
So you are going to need to sit down in that chair and you're going to need to be quiet. If there is one more outburst or if you talk to any participant in the case, other than your lawyer-and you need to talk to him quietly-if you do that, then I'm going to have to gag you. You know what? I have never done that, ever. I've never had a defendant who was so stupid that he wanted to be gagged in front of the jury. I've never had to do it.
The judge announced they needed one extra bailiff for trial "because [she] did not want to prejudice the jury." She asked for three bailiffs to remain in the courtroom, and two others close by "because [she] did not want to prejudice the jury by having too many officers standing around." She then told Kapperman to "have a seat, sir" and instructed the bailiffs who were present to "be looking for some materials to tie [Kapperman] with and materials for a gag." The bailiffs then uncuffed Kapperman and the jury members returned to the courtroom. At that point, defense counsel approached the bench and moved for a mistrial:
Defense: Your Honor, at this point I think the record is clear-I will try to be quiet. I think the record is clear as far as what happened. During the course of individual questioning of the jurors, Mr. Kapperman stood up, screaming, threw his chair, clearly upset, had to be forcibly removed to the holdover cell.
Court: But there was no fight with the bailiff. They had to push him, is what I saw. Do you agree?
Defense: I agree. My back was turned, but I think that's accurate. We know he didn't have any sleep last night. He is not in the greatest mental state, according to him. He wants to speak to [a mental health professional] based on what he says is going on. I don't have any reason to believe he is incompetent.
Court: No. He is clearly not incompetent.
Defense: With that being said, it's a concern right now and I would ask to strike this panel, or I move for a mistrial, whatever remedy is appropriate for the situation, because I don't think under the circumstances, the situation as it is now, that Mr. Kapperman would get a fair trial based on what this panel has seen and observed.
Court: Unfortunately, he brought it on himself. So there's nothing I can do about that. So the motion for mistrial is denied.
And let me just mention for the record, if I had information from any source that a defendant might be incompetent, then the law requires me to have a psychiatric exam. But unfortunately, I have quite a bit of experience with Mr. Kapperman and he is clearly competent. Okay? Thank you.
The parties and the trial judge continued to question other individual jurors. During the questioning of Juror No. 35, Kapperman told the court "I need to see a therapist." The trial judge removed the jury from the courtroom once again and Kapperman again repeated, "I need to see a therapist, I need to see a therapist." The trial court asked whether Kapperman had a "misconduct disciplinary record in the jail," to which the prosecutor responded "[v]ery minor." The trial judge then stated, "Okay. So I'm going to need you to gag the defendant. Let's find something that doesn't look bad, un-intrusive as possible." Defense counsel objected, arguing that there were alternatives short of gagging that had not been considered. The following exchange then took place:
Court: I have an open mind. Give me another idea. I told him not to talk to the jury and he just made a statement to the jury.
Kapperman: I made a statement to you. I need to see the therapist.
Court: You're not allowed to make statements to me in front of the jury, period.
Kapperman: So if I go crazy and I hurt myself, then what?
Court: Okay. We'll need to order a suicide watch. Do y'all have any forms for that?
Bailiff: We can call up to the jail and they'll put him in-what's the name-
Court: I used to-I always have a form that I faxed over to the doctor. Maybe y'all can write up something on the computer.
So I will order a suicide watch, sir.
The trial judge then addressed Kapperman's counsel, "So what other suggestion do you have? How do I get him to quit saying things he's not allowed to say in front of the jury?" Defense counsel, however, did not have a specific alternative in mind. The trial judge then stated:
Court: He is not going to follow my rules. I can't keep sending the jury out-
Kapperman: I'm going to stop.
Court: How do I know that?
Kapperman: I just need to see a therapist. That's all I'm asking. That's all I'm asking. I'm not going to hurt myself.
Court: We're in the middle of trial. I can't send you to a therapist now, sir.
Kapperman: I'm not going to try to keep hurt[ing] myself.
Court: Are you going to keep quiet while the jury comes back? Otherwise, if you make one more outburst, you will be gagged the whole trial. Am I going to have to do that? Give me an answer, "yes" or "no."
Kapperman: No. No, ma'am.
Court: You're going to sit there quietly and only whisper to your lawyer? Is that right? This is it, do you understand? Do you promise me, you give me your word?
Kapperman: They are not going to put me on suicide watch, are they?
Court: Yes, I am.
Kapperman: Please don't do that.
Court: You just told me you might kill yourself.
Kapperman: Please don't do that.
Court: I have to do that. I don't have a choice. So sir, are you going to sit there quietly, "yes" or "no"?
Kapperman: Please don't put me on suicide watch, ma'am.
Court: No. I asked you, are you going to sit there quietly, "yes" or "no"?
Kapperman: If I don't get put on suicide, I will be quiet.
Court: No, you are going to be put on suicide watch. We have to.
At that point, Kapperman began complaining that he was having "bad pains" in his side. The trial court told Kapperman that the trial would continue and assured him that his trial counsel was doing a good job and Kapperman agreed stating, "I know he is." The trial court then asked Kapperman if he would give her his word that "you will sit here quietly." After Kapperman promised the judge that he would sit quietly, the court told Kapperman to "just listen quietly" and she recalled the panel to the courtroom.
When the venire panel returned to the courtroom, the trial judge began calling individual venire members to the bench for questioning, including Juror No. 44 and Juror No. 53. During voir dire, Juror No. 44 had stated she would give a police officer's testimony more credibility. After questioning at the bench, however, Juror No. 44 ultimately agreed she would be neutral "to all witnesses until [she] hear[d] them testify," and the trial court denied Kapperman's challenge for cause.
Kapperman also challenged Juror No. 53 for cause. He did so based on statements the juror made suggesting she would hold Kapperman's failure to testify against him and would be unwilling to "consider [the] entire range of punishment." After questioning from the court, the State, and Kapperman's counsel, Juror No. 53 agreed that there was, hypothetically, a situation in which she would consider the minimum punishment. The trial judge asked, "[s]o you promise me you will consider the entire range of punishment," to which Juror No. 53 responded, "Yes." Kapperman then accused the trial judge of trying to persuade the juror, stating "She just said no. You're trying to persuade her, ma'am." The trial court sent the jury panel out of the courtroom except for Juror No. 53. As the last venire member was leaving the courtroom, Kapperman exclaimed, "I'm not getting a fair trial." The trial judge then asked Juror No. 53 whether she would hold it against Kapperman if he did not testify. Juror No. 53 ultimately agreed she would follow the law and the court's instructions not to consider Kapperman's failure to testify or hold it against him. The trial court told Juror No. 53 she was still on the panel and asked her to step into the next courtroom with the other venire members.
Defense counsel objected, arguing that Juror No. 53 had told the court only what she thought the court wanted to hear and had not expressed her true opinions on the matter. This prompted Kapperman to exclaim, "This is rigged, man." The court overruled the objection and announced to the bailiff, "So you are going to need to gag him. So figure out a way as best you can to do it." Kapperman then repeatedly insisted on seeing a therapist and stated, as he shook his finger at the judge:
This is illegal what you are doing. This is illegal what you are doing. I want to see a therapist. I have a right to talk to a therapist. That's my right. . . . You are refusing me counsel to a therapist. . . I'm going to report you for what you're doing. I'm going to report you for what you're doing to me. I want to speak to a mental health person. You are not allowing me to. I'm going to report you. I'm going to find out how to do it and report you.
Kapperman continued:
I need to see a therapist. And I'm going to report what you are doing because what you're doing is illegal. You already have reports on the Internet about how you are messing people over. I got a document. So we know what's going on. I'm going to report you are doing because refusing me allowing me to speak to mental health when clearly I'm in bad shape. It's clear. It's crystal-clear. What you are doing is illegal. I promise you, regardless of what happens, I'm going to report you. I'm going to tell my whole family what you are doing.
The trial judge warned Kapperman not to threaten a judge, to which Kapperman replied, "I'm not threatening nobody. I never threatened you. All I said was I'm going to tell my people exactly what you are doing. That's not a threat." While the trial judge and the bailiff continued to discuss the procedural requirements for gagging a defendant, Kapperman continued to demand to see a therapist. The trial judge once again instructed Kapperman to be quiet and he responded, "You're instructing me not to talk, but you're not hearing what I'm saying. I have mental issues." The trial judge replied, "Sir, that's why you have a lawyer, sir. You're clearly competent to go to trial."
Although the trial judge insisted that Kapperman be gagged, the bailiff refused to do so because the request to gag a criminal defendant had to be made in writing and sent "up the chain to the Sheriff."
There were only a handful of venire members left to speak with by this point, and the State and defense counsel agreed that all four of them would be excused. The remaining venire members were brought into the courtroom, the parties made their strikes, and a jury was assembled. After the trial judge released the jury for the day, she informed Kapperman, who had not been gagged, that she heard him talking to his counsel when both sides were making their strikes and she believed the jury had heard him as well. She reminded Kapperman to whisper when he spoke to his counsel. Kapperman replied, "Yes, ma'am. I'm sorry."
The trial court then stated for the record:
Mr. Kapperman appeared to me today to be very alert. He was looking at the PowerPoints the State did very intently. He was looking at the jurors. He was taking notes. He has a legal tablet and he was taking notes. So I want to make it clear I did not see him sleeping at any time. So I kept an eye on that during the jury selection process. And he appeared to be not only awake and alert, but also very involved in the jury selection process.
The court then recessed for the day.
B. The Guilt-Innocence Phase: January 24 and 27, 2020
1. Proceedings on Friday, January 24, 2020
The guilt-innocence phase of trial began the next morning on Friday, January 24, 2020. Without motion or discussion by either party, the trial court began by announcing she would be excluding Kapperman from the courtroom during his trial. The trial judge addressed several preliminary matters on the record before the jury arrived in the courtroom, beginning with Kapperman's behavior the day before:
Just an update on where we are with the defendant's poor behavior, very poor behavior. Fortunately, our IT division has been able to set up video so your client can watch the proceedings from the holdover. So thank goodness he won't have to be gagged. And my plan would be to stop after every portion of the examination of the witness so you can go back and talk to him. Like, when the State passes a witness after direct, I will give a break so you can go back and talk to him about what questions, perhaps, need to be asked on cross. And then before you pass the witness on cross, you can go back and talk to him again. Would that work for you?
Defense counsel objected to Kapperman's physical exclusion from the courtroom and stated:
I understand the outbursts yesterday, I understand what the Court went through and the measures that it took. Knowing, though, [the defendant] was working on 30 minutes sleep. He's had a chance to catch up on his sleep last night at the jail after our return. I'd like him to be given the opportunity to be admonished and spoken to by the Court and let him know if there's anything the Court construes as communicating out loud or inappropriate, that the remedy is you're not here for your trial. I think he needs to be given the chance. Because I understand he has a right to confront and cross-examine his witnesses. And the video conference, while better than being bound and gagged, still diminishes that right. So I would object to that procedure at this
point just based on his constitutional right to confront and cross-examine the witness.
The trial judge replied:
The problem is yesterday, he clearly interfered with the orderly administration of justice. And honestly, I've never seen anything like it in all my years as a judge. I've never had a-I've never had a defendant throw his chair, you know. And I don't want anybody to get hurt. And I just feel I have no other choice except to go by video. So we'll do that. And periodically, the bailiff will go back to make sure the sound is still working and the visual is still working. And can someone turn on a screen so the defense lawyer can see the view? I felt like we needed to have the full courtroom shown. Originally, I just wanted it focused on the witness, but then I realized, you know, there may be exhibits shown, there may be something on PowerPoint. So he's going to need to see everything. And I would propose that you enter his plea of not guilty. The lawyer often does that anyway.
The trial court then addressed the suicide watch:
Also on the record, yesterday I entered an order for the jail to determine whether or not the defendant needed a suicide watch. I didn't order one. Basically, they had to examine him and decide if he needed it. And I understand there was no suicide watch. Is that correct?
Defense counsel confirmed that Kapperman had been examined at the jail and he was not placed on a suicide watch. The court then informed the State and defense counsel what she planned to tell the jury about Kapperman's absence from the courtroom:
My plan is to tell the jury that the defendant, under the law, should hear all proceedings against him. So today the defendant will be watching
the trial by video from another location. And then periodically, I will give the defense lawyer a break to confer with his client.
Defense counsel objected to the procedure but agreed that the "instruction seems appropriate under the circumstances."
After the jury was sworn in, the trial judge explained Kapperman's absence. She stated on the record that Kapperman's counsel had been in the holdover cell with him and he confirmed that Kapperman could hear and see the trial proceedings, and that everything was set up satisfactorily. Defense counsel agreed with the court's statement and mentioned that Kapperman had "some complainants [sic] about the elevator when it makes noise, but I'm not sure that's any different than other noise we have to deal with just in the courtroom generally speaking." The trial judge stated that the elevator noises "even bother jury panels." The trial then commenced.
During the State's direct examination of its first witness, Detective Reiser, the trial judge interjected and announced the court needed to "take up a technical issue." Outside the jury's presence, the trial judge asked the head of the court's IT division to confirm Kapperman was able to see the evidence being projected on the screen in the courtroom. Kapperman's counsel, who had just conferred with his client, reported to the court that Kapperman stated the sound was going in and out and he could not hear everything being said in the courtroom from the holdover cell. The bailiff, however, stated he had been back to the holdover cell and the broadcast from the courtroom was very loud and he denied that the sound was "going in and out." Defense counsel stated, "I think [Kapperman] can hear the majority of the testimony, but there's times that he loses words as far as what's being said." The trial judge replied, "I am a little concerned about the defendant's credibility because earlier this morning, he was saying he couldn't hear and the screen was on him and he was responding to what we were saying in here by shaking his head." The State and the head of IT told the judge that the volume was turned up so high in the holdover cell that they could hear the broadcast from the backdoor of the courtroom. Defense counsel, who had been sent back to the holdover cell to test the clarity of the broadcast reported:
It's significantly different on the other side unless you are-if your head is lower. I could hear and when it was turned up, I could hear clear everything that was going on and it was loud. When I first got there trying to listen to the courtroom, when there was some background noise, it made it more difficult. Whatever it's turned up to now, I could hear everything.
The trial judge eventually concluded that the court had done what it could to ensure the clarity of the broadcast in the holdover cell and stated that Kapperman was "just going to have to listen carefully." The court gave Kapperman a copy of the exbibit projected on the screen, brought the jury back in, and continued with Detective Reiser's testimony. In total, the jury heard from three of the State's witnesses on the first day of trial. The record reflects that the court recessed for lunch and took short breaks to allow defense counsel to consult with Kapperman during the trial. At the end of the day, the court released the jury and instructed them to return the following Monday.
2. Proceedings on Monday, January 27, 2020
Kapperman's trial resumed two days later, on Monday, January 27, 2020. Before the jury arrived, the trial judge asked Kapperman's counsel if he had been back to the holdover cell to meet with Kapperman and confirm everything was working fine. Defense counsel stated he had done so, objected to Kapperman's continued absence from the courtroom, and re-urged his request to allow Kapperman to return because "he's gotten sleep, would like to participate, would like to be present, would like to be in the courtroom." The trial judge overruled the objections and stated, "His conduct during jury selection was just too extreme. I don't want him saying things to prejudice the jury, nor do I want him to hurt anybody."
After hearing testimony from the State's fourth witness, Deputy M. Salinas, the State informed the trial judge that it would be calling their expert next. Outside the jury's presence, defense counsel stated that he anticipated the State would attempt to admit the data downloaded from Kapperman's cell phone into evidence through its expert witness. He moved to suppress the evidence of the cell phone's contents, in part, because the affidavit supporting the search warrant did not include facts linking Kapperman to the cell phone, and thus, the affidavit could not establish probable cause to search the phone. The trial court granted the motion and suppressed the data downloaded from Kapperman's cell phone. No additional witnesses were called to testify.
3. Testimony and Evidence Presented at Trial
The State called a total of four witnesses during the guilt-innocence phase of the trial, including Detective Reiser, Officer M. Rivera, Constable A. Reyes, and Investigator M. Salinas. Kapperman did not testify.
(a) Detective Reiser
The State's first witness was Detective Reiser, a member of the Houston Police Department's Crimes Against Children Unit. Detective Reiser testified that the Crimes Against Children Unit investigates the sexual exploitation of children online and through social media, including "online solicitation, the chat operations, in which-most people know it as the catch-a-predator type TV show type things." Detective Reiser explained that during a chat operation, a group of officers often called "chatters" log onto social media applications, such as Kik and MocoSpace, and using fictional accounts, they represent themselves as children, typically between the ages of thirteen and fifteen. Chatters, who are not allowed to initiate conversations, wait until they are contacted by another user, and then engage with that person to determine whether they "want to engage in sexual activity with a child." Detective Reiser explained that a chatter will tell the other user he or she is a minor and, if the other person continues the conversation in a sexual manner, the chatter will continue to engage until the person suggests they meet in person. When that happens, the chatter will arrange to "meet" the person at a pre-determined location where a "takedown team" of officers will be waiting to arrest the person.
On August 23, 2018, Detective Reiser signed onto the internet social media platform MocoSpace using the name "Princess000starfire" as part of an online chat operation. The account he used has a profile picture featuring an "age-regressed" photograph of a female HPD Officer and lists the user's age as 79. Someone named "dizzo_713" ("Dizzo") contacted Detective Reiser through MocoSpace that same day and they began chatting. When Dizzo suggested they go to a casino, Detective Reiser told Dizzo that was not an option because she was only fifteen years old. Dizzo then asked her where she lived in Houston and suggested they "could drink it up sometime." Detective Reiser told Dizzo that she lived near downtown, at which point Dizzo asked for Detective Reiser's cell phone number and the two continued to communicate through text messages. Detective Reiser testified that he preferred using text messages over MocoSpace to communicate with possible suspects because it was easier to preserve a record of their communications and once he had the other person's cell phone number, other officers involved in the operation could use that information to try to discover the person's true identity. A copy of Dizzo's and Detective Reiser's MocoSpace chats and text messages were admitted into evidence.
Because Kapperman challenges the sufficiency of the evidence identifying him as person who contacted Detective Reiser online, we refer to "dizzo_713" as Dizzo, unless the witness is referring to "the defendant" or "Kapperman." Because the indictment identifies "W. Reiser" as the person Kapperman allegedly contacted online and solicited, we will refer to Detective Reiser by name rather than using his online persona "Princess000starfire."
Detective Reiser, a male, told Kapperman they could communicate only through text messages because his phone could not make or receive calls.
Dizzo almost immediately began sending Detective Reiser sexually explicit text messages and asked her to send a photograph of herself. Detective Reiser sent Dizzo another photograph of the same HPD officer he had used in his MocoSpace profile picture. Dizzo replied, "Find a way to call me. Your pics look weird." Detective Reiser told Dizzo they were the only photographs she had because her father had taken away her good cell phone. Dizzo replied, "I am starting to wonder if you are really who you say you are. Let's video chat . . . . For all I know, you could be a cop trying to set me up." Detective Reiser responded, "Oh, man, you caught me. I am a cop sitting here playing on the Internet. SMDH. That's so crazy."
Dizzo, apparently satisfied that Detective Reiser was the underage girl she claimed to be, sent Detective Reiser a photograph of himself and asked Detective Reiser for her address. Detective Reiser, however, recognized it was too soon to provide a possible suspect with an address. Dizzo continued to send Detective Reiser sexually explicit messages discussing the type of sexual acts he wanted to engage in when they were able to meet in person and asked, "Are you a virgin?" Detective Reiser responded, "Yes. Is that okay?" to which Dizzo replied, "That's really good. I want to be your first." When Detective Reiser expressed concerns about getting pregnant, Dizzo responded, "I will use a condom." After exchanging additional text messages with Dizzo, Detective Reiser gave him the address of the apartment where the takedown team of officers was waiting to arrest Dizzo. When asked if Dizzo had arrived at that address, Detective Reiser testified that he did:
State: Did the person [who] showed up match the person's photo that was sent to you?
Reiser: Yes, ma'am.
State: Okay. And who did you learn that person to be?
Reiser: Kurt Kapperman.
State: Okay. And how did you learn that that was his name?
. . .
Reiser: After [he arrived], he was identified with his Texas I.D.
Detective Reiser positively identified Kapperman as the man who had texted him a photograph of himself and arrived at the takedown location. When shown a photograph of Kapperman, Officer Reiser testified:
Reiser: That is a picture of Kurt Kapperman.
State: Okay. And is that the same person who sent the text messages-or the photos-excuse me-in the conversations to you as Princess?
Reiser: Yes, ma'am.
State: And is that the same person who showed up?
Reiser: Yes, ma'am.
Detective Reiser, who had been watching remotely via surveillance cameras, further testified that he observed "the defendant" walk up to the apartment located at the address he had provided to Dizzo:
State: So you actually saw him via surveillance walk up to the apartment number that you gave?
Resier: Yes, ma'am. You can actually see him walk up to the door and open his phone because you will see his phone light up when he's sending the message that he was outside.
State: Okay. And what happened after that?
Reiser: He stood just outside the door. He never actually walked up to the door and knocked. The D.A. said hey, that's good, go get him. So at that point, at that time we notified the takedown team the case is made, go pick him, they open the door and they arrest him.
(b) Officer Rivera
The State's second witness was Officer M. Rivera ("Officer Rivera") who works at the Harris County Precinct 1 Constable's office. He was part of the takedown team waiting for Dizzo at the address provided by Detective Reiser. Officer Rivera was responsible for documenting the suspect's arrival at the apartment using an iPad. On cross-examination, Officer Rivera testified:
Defense: How far at that point, when everybody rushed out, was Mr. Kapperman from the front door?
. . .
Rivera: In that particular instance, yes, he would have been no more than arm's length away from the door.
Defense: When you opened the door, do you see Mr. Kapperman?
Rivera: I see him.
Defense: In that video, can you see him?
Rivera: You see his torso. I can't see his face, but you see his torso.
Defense: In the video, you can see that?
Rivera: I can see it because I know what I'm looking at.
(c) Deputy Reyes
Harris County Deputy Constable A. Reyes ("Deputy Reyes") testified next. He testified he was part of the takedown team waiting for Dizzo in the apartment. Deputy Reyes testified that his role in the operation was to grab the suspect when another officer opened the door. When asked if he specifically remembered "grabbing the defendant, Kurt Kapperman, in this case," Deputy Reyes answered, "Well, in this case, he ran prior to us being able to grab him." Deputy Reyes testified that he and the other officers chased after Kapperman and Reyes tackled Kapperman when he reached the sidewalk. Deputy Reyes testified that Kapperman began to flail his hands when he fell and struck Reyes, at which time Deputy Reyes deployed his taser. Other officers took Kapperman back into the apartment for further processing.
Kapperman was also charged with two counts of assaulting a police officer in connection with his arrest on the online solicitation of a minor charge, but the assault charges were later dropped.
Deputy Reyes further testified:
State: So that was the end of your involvement?
Reyes: Yes, ma'am.
State: Were you able to get a good look at the defendant during this whole process?
Reyes: Yes.
State: And would you recognize the defendant if you saw a picture of him?
Reyes: Yes.
State: I'm showing what's already been entered into evidence as State's Exhibit 12 (indicating). Do you recognize this individual?
Reyes: Yes.
State: Is it-so is this the State's Exhibit 12 that I just showed you up at the witness stand?
Reyes: Yes.
State: Who is this a photo of?
Reyes: The defendant.
Deputy Reyes then described the physical features of the man in the photograph admitted as State's Exhibit 12:
State: Okay. But is that the person that you arrested on the night of the operation?
Reyes: That's correct.
State: Okay. Your Honor, may the record reflect the witness has properly identified the defendant?
Court: Yes, ma'am.
Defense counsel did not object.
(d) Investigator M. Salinas
Investigator M. Salinas ("Investigator Salinas"), the State's fourth and final witness, works in the Harris County Constable's Precinct 1's juvenile division. He was on the operation's evidence collection team. Investigator Salinas testified that when a suspect is taken into custody, the suspect's items are placed in a bag, and he categorizes all the items and makes sure they are in the bag belonging to the suspect. He followed the same procedure in this case. He testified:
The bag, which was on the floor next to Kapperman, was mislabeled "Kappernick."
State: Okay. I'm showing you what's been marked State's Exhibits 1 and 2 (indicating). Do you recognize these?
Salinas: Yes, I do.
State: Okay. And where do you recognize these from?
Salinas: These are the items that were in the paper bag with the subject that was in custody at the time. His wallet, his hat,
his loose change, cell phone, Magnum condom, his I.D. and social were inside his wallet.
Investigator Salinas testified that State's Exhibit 2 was another photograph of Kapperman's cell phone:
State: Let's go to the actual-the identification card. I'm sorry. Did you match this I.D. with the person that they had in custody?
Salinas: Yes, ma'am.
State: And did that match?
Salinas: Yes, exact same person.
State: Okay. Have you previously had an opportunity in the courthouse to see this same person again?
Salinas: Yes.
State: And that was the same person that night that you-that was in custody?
Salinas: Yes, ma'am.
State: And he matched his I.D.?
Salinas: Yes.
State: Thank you. Your Honor, may the record reflect the witness has identified the defendant?
Court: Not the defendant. I guess-I don't think I can do that since he is not present.
State: And so for the record, the person that we see here in this I.D. as Kurt Kapperman was the same person that you arrested that day?
Salinas: I didn't arrest him.
State: I mean, that was in custody that day?
Salinas: Yes, ma'am.
State: Okay. And then you said that there was also a cell phone?
Salinas: Yes, ma'am.
Court: I'm sorry. The Court changes the ruling. So I accept the identification for the record.
Defense counsel did not object.
The court then heard the defense's motion to suppress the data extracted from Kapperman's cell phone. The court granted the motion, and no additional witnesses were called to testify. The trial proceeded to the charge conference, after which the State and defense rested their cases, and the charge was read to the jury.
The jury retired for deliberations on Monday, January 27, 2020, after both sides made their closing arguments. After deliberating for a little over an hour, the jury found Kapperman guilty of the charged felony offense of online solicitation of a minor.
C. The Punishment Phase: January 27, 2020
The punishment phase of trial commenced on Monday, January 27, 2020, after the guilty verdict was announced. The State read the enhancement paragraph to the jury:
Before the commission of the offense alleged above, on February 8, 2006 in Cause No. 200310111J, in the 314th District Court of Harris County, Texas, the defendant was convicted of felony offense of
aggravated sexual assault of a child. Against the peace and dignity of the State.
Defense counsel entered a plea of "not true" on behalf of Kapperman, who was still being excluded from the trial proceedings and observing the proceedings from the holdover cell.
The State presented evidence that Kapperman had solicited sex from another undercover officer he believed was a fourteen-year-old girl living in Denton County. Special Agent S. Hard ("Special Agent Hard") with the Department of Homeland Security testified that she had participated in an online chat operation on July 17, 2018 hosted by Denton County and the Texas Department of Public Safety. Special Agent Hard signed into MocoSpace using a fictitious account purportedly belonging to a fourteen-year-old girl. "Dizzo_713" contacted Special Agent Hard and, after exchanging a few messages, they switched over to Kik, another social media application. Kapperman, now using the name "Don John," sent Special Agent Hard sexually explicit messages after she told him she was only fourteen years old.
Kapperman also sent her a photograph of himself and made plans with her to meet in Denton to have sex. They talked once over the phone and a recording of that conversation was admitted into evidence, along with screen shots of the messages they exchanged. By the time Kapperman was able to arrange a trip to Denton, however, the operation had concluded. Special Agent Hard testified that she spoke to the investigator in Denton County in charge of the operation and he told her she would get a warrant for Kapperman's arrest because all the elements of the offense had been satisfied.
The State also introduced evidence of Kapperman's lengthy criminal history, which began when he was only thirteen years old. In 2004, fourteen-year-old Kapperman pleaded no contest in juvenile court to the offense of aggravated sexual assault of a child and he was sentenced to three years of probation. In his plea, Kapperman stipulated that he penetrated his younger sister's anus with his sexual organ in 2003. Kapperman's probation was revoked in 2005 after he ran from a school resource officer and he was sent to the Texas Youth Commission ("TYC").
The record indicates that Kapperman's sister would have been approximately eleven years old when the assault occurred.
The State also introduced evidence Kapperman had (1) pleaded guilty in 2009 to the Class B misdemeanor offense of indecent exposure for exposing his genitals, (2) pleaded guilty in 2012 to the Class B misdemeanor offense of indecent exposure for exposing his genitals and masturbating in a public place, (3) pleaded guilty in 2012 to the state jail felony offense of failure to register as a sex offender, and (4) pleaded guilty in 2017 to the state jail felony offense of failure to register as a sex offender.
The defense called two witnesses to testify for Kapperman. Kapperman's friends testified that, after he was released from TYC, Kapperman, who has a four year-old daughter and a nine-year-old daughter, struggled to find employment and housing due to his status as a registered sex offender, and at times "he was homeless" and living out of his car. In his closing, defense counsel argued that Kapperman's juvenile offense was not an actual "conviction," and therefore the jury should consider only the punishment range of two to twenty years' incarceration. Defense counsel also asked the jury to consider assessing Kapperman's punishment at the lower range because Kapperman could be rehabilitated, and, despite the disturbing nature of the assault against his sister, Kapperman's friends testified they knew his sister and they described her relationship with Kapperman as "a normal brother-sister relationship." "The family's obviously healed, the family's obviously been able to reconcile and is healthy as you can be as far as brothers and sisters. And I think that speaks volumes of what his actions when he was 13 years old really were."
Based on Kapperman's criminal history, including the juvenile offense against his sister and the Denton County case involving online solicitation of a minor, the State argued that Kapperman was a dangerous sexual predator who had preyed on victims continually from the time he was thirteen years old. The State argued he posed a threat to strangers and to his own family members. "And we know that because he already did this to his sister." When assessing Kapperman's punishment, the State asked the jury to be mindful of the need to protect "the defendant's daughters from him, his sister, members of the community, children and adults. Because you are the only one who can keep those people safe. And that's by keeping him away from them. He's already established that by being out he is going to hurt children and adults."
The complainants in both indecent-exposure cases were adults.
The State asked the jury to assess Kapperman's punishment at a minimum of thirty years' incarceration. The jury deliberated for almost two hours before assessing Kapperman's punishment at sixty years' incarceration.
After polling the jury, the trial judge announced, "At this time, I need to pronounce the sentence. May I do that by video also?" Defense counsel responded, "Same objections as we've had to the whole video process, Judge." After confirming Kapperman could still hear and see everything in the courtroom, the trial judge pronounced Kapperman's sentence over video, dismissed the jury, and admonished Kapperman that he would have to register as a sex offender.
This appeal followed.
Sufficiency of the Evidence on Identification
In his first issue, Kapperman argues there is insufficient evidence to support his conviction because there is no evidence identifying him as the person who texted and solicited Detective Reiser, a person he believed to be a minor. Kapperman argues there is no evidence linking him to the offense because no witness positively identified him in court and the only evidence linking him to the offense was suppressed. The State argues the evidence is sufficient to support Kapperman's conviction because the person who referred to himself as Dizzo solicited Detective Reiser online and texted him a photograph of himself. The State argues the photograph is consistent with Kapperman's driver's license photograph and consistent with the description of the person arrested and charged with the offense.
A. Standard of Review and Applicable Law
We review an appellant's challenge to the legal sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine the evidence in the light most favorable to the jury's verdict to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319; Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Our review includes all the evidence introduced, whether it be properly or improperly admitted. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
"The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses." Merritt, 368 S.W.3d at 525 (citing Jackson, 443 U.S. at 319). As the sole factfinder, the jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all the evidence or testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd). We afford almost complete deference to the jury's determinations of credibility. See id. (citing Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)). In the event of conflicting evidence, we presume the jury resolved conflicts in favor of the verdict and defer to that determination. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Canfield, 429 S.W.3d at 65. Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient. See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
Identity may be shown by circumstantial evidence and reasonable inferences derived from the evidence. Adams v. State, 418 S.W.3d 803, 810 (Tex. App.- Texarkana 2013, pet. ref'd); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.- Austin 2000, pet. ref'd). Although commonly utilized as a method for establishing identity, the lack of a formal, in-court identification does not necessarily render other evidence insufficient to establish a defendant's identity as the person who committed the charged offense. Adams, 418 S.W.3d at 810 (citing Purkey v. State, 656 S.W.2d 519, 520 (Tex. App.-Beaumont 1983, pet. ref'd)); accord Johnson v. State, No. 14-98-01079-CR, 2000 WL 257821, at *3 (Tex. App.-Houston [14th Dist.] Mar. 9, 2000, pet. ref'd) (not designated for publication) (stating "there is no requirement that witnesses formally identify the defendant in court"). In addition to evidence admitted at trial, statements made during voir dire may be considered in analyzing the sufficiency of identifying evidence. See Purkey, 656 S.W.2d at 520; Adams, 418 S.W.3d at 812 ("We believe that the jury ultimately selected, having been in the courtroom while [defendant] was protesting to the trial judge, could conclude that the man standing before the judge was indicted for this particular offense and was the defendant in this case"); Ocanas v. State, No. 07-17-00313-CR, 2018 WL 4265757, at *3 (Tex. App.-Amarillo Sept. 6, 2018, no pet.) (mem. op., not designated for publication) ("While pretrial introductions and voir dire examinations are not evidence, the jury is not required to leave its common sense at the courthouse door when it reports for jury duty."). Evidence of identification is sufficient to support a conviction if "from a totality of the circumstances the jury was adequately apprised that the witnesses were referring" to the defendant. Purkey, 656 S.W.2d at 520 (quoting Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. 1981)); see also Johnson, 2000 WL 257821, at *3 (holding evidence sufficient to support identity finding when officer referred to "defendant" as person he arrested, took into custody, and found in possession of stolen jewelry and noting "appellant was only 'defendant' on trial and there was no indication the witness was referring to someone other than appellant").
B. Analysis
Kapperman does not dispute he was the man who was standing in front of the apartment door at the address Detective Reiser gave to Dizzo, and subsequently arrested by members of the takedown team who were waiting for Dizzo inside the apartment. Kapperman also does not dispute that he was the defendant and that he was tried and convicted for the offense of online solicitation of a minor. Instead, Kapperman argues the evidence is insufficient to identify him as the person who texted and solicited Detective Reiser because no witness identified him in court as the perpetrator, and the trial court suppressed the data extracted from Kapperman's cell phone, which he contends is the only substantive evidence linking him to the offense.
The State's witnesses were not able to make a formal, in-court identification of Kapperman, because Kapperman was physically excluded from the courtroom during the guilt-innocence phase of trial. But lack of a formal, in-court identification does not mean the evidence is insufficient to establish Kapperman's identity as the person who texted and solicited Detective Reiser. See Adams, 418 S.W.3d at 810; accord Johnson, 2000 WL 257821, at *3 (stating "there is no requirement that witnesses formally identify the defendant in court"). Although the data extracted from Kapperman's cell phone could have provided stronger and more substantial evidence identifying Kapperman as the person who texted and solicited Detective Reiser, there was other evidence establishing that Kapperman committed the charged offense.
The record reflects that the person who identified himself as Dizzo began chatting online with Detective Reiser, a person Dizzo believed was a 15-year-old girl. Dizzo sent Detective Reiser sexually explicit text messages soliciting fellatio and sexual intercourse. Dizzo texted Detective Reiser a photograph of his face and repeatedly expressed an interest in meeting the officer in person. Detective Reiser gave Dizzo directions to an apartment where Kapperman believed he would meet Detective Reiser, someone he thought was a 15-year-old girl, for sex. When Detective Reiser expressed concerns about getting pregnant, Dizzo stated that he would bring a condom.
Unbeknownst to Dizzo, the only people in the apartment were members of the chat operation's takedown team who were waiting for Dizzo to arrive to arrest him. Detective Reiser testified that he watched via surveillance camera as "the defendant" walked up to the door of the apartment located at the address he had provided to Dizzo. "You can actually see him walk up to the door and open his phone because you will see his phone light up when he's sending the message that he was outside." Detective Reiser also testified that the person on the video "stood just outside the door. He never actually walked up to the door and knocked." At that point, the chat operation notified the takedown team that "the case is made, go pick him up" and the takedown team opened the apartment door and arrested the man standing outside, despite his attempt to flee. Detective Reiser testified Kapperman matched the photograph Dizzo had sent of himself to Reiser:
State: Did the person who showed up match the person's photo that was sent to you?
Reiser: Yes, ma'am.
State: Okay. And who did you learn that person to be?
Reiser: Kurt Kapperman.
Deputy Reyes, the officer who tackled Kapperman outside the apartment, also testified he was able to get a good look at "the defendant." He identified Kapperman from a photograph as "the defendant" and the person arrested the night of the operation.
Investigator Salinas also testified that he collected a paper bag with the items the arresting officers found on Kapperman. He testified that his "wallet, his hat, his loose change, cell phone, Magnum condom, his I.D. and social were inside his wallet." Investigator Salinas testified that the person in custody was the same person in the photograph on Kapperman's driver's license, and "Kurt Kapperman" was the person taken into custody.
In summary, the evidence reflects Kapperman went to the apartment where Dizzo planned to meet Detective Reiser for sex, someone Dizzo thought was a fifteen-year-old girl. Kapperman was standing outside the apartment door at or very near the time when Dizzo purported to arrive at the apartment and texted, "I'm outside." Dizzo planned to bring a condom with him to the apartment and Kapperman had a condom with him when he was arrested. Detective Reiser also testified that Kapperman matched the photograph Dizzo had sent of himself to Reiser. Thus, there is ample direct and circumstantial evidence identifying Kapperman as Dizzo.
We note that this evidence also demonstrates that the person who referred to himself as Dizzo texted and solicited sex from Detective Reiser, someone Dizzo believed was a 15-year-old girl-a point which Kapperman does not dispute. A person commits the offense of online solicitation of a minor
[I]f the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.Tex. Penal Code § 33.021(c). The term "minor" includes "an individual whom the actor believes to be younger than 17 years of age." Id. § 33.021(a)(1)(B). The act of "soliciting" is the prohibited conduct. Ex parte Zavala, 421 S.W.3d 227, 232 (Tex. App.-San Antonio 2013, pet. ref'd). The offense is completed at the time of the solicitation, and the requisite intent arises within the conduct of soliciting. Id. (citing Ex parte Lo, 424 S.W.3d 10, 22-23 (Tex. Crim. App. 2013)). Thus, it was not necessary for "Dizzo" to arrive at the apartment because the offense was complete when he solicited sex from Detective Reiser online.
Detective Reiser, Deputy Reyes, and Investigator Salinas also referred to Kapperman as the "defendant" throughout the trial. Kapperman was the only defendant and the trial court introduced Kapperman to the jury as the defendant. See Purkey, 656 S.W.2d at 520 (holding evidence of identification is sufficient to support conviction if "from a totality of the circumstances the jury was adequately apprised that the witnesses were referring" to defendant) (quoting Rohlfing, 612 S.W.2d at 601); see also Johnson, 2000 WL 257821, at *3 (holding evidence sufficient to support identity finding when officer referred to "defendant" as person he arrested, took into custody, and found in possession of stolen jewelry and noting "as appellant was only 'defendant' on trial and there was no indication witness was referring to someone other than appellant"). The jury reasonably could have inferred from the witnesses' testimony that they were referring to Kapperman.
Viewing the evidence in the light most favorable to the verdict, we conclude a reasonable jury could conclude that Kapperman was the person who texted and solicited Detective Reiser. See Jackson, 443 U.S. at 319; Adams, 418 S.W.3d at 810.
We overrule Kapperman's first issue.
Exclusion from Trial
In his second issue, Kapperman argues the trial court erred by excluding him from the courtroom his entire trial. The State responds that "[a]ssuming the trial court erred in excluding [Kapperman] from the courtroom during [his trial], such error was harmless beyond a reasonable doubt."
A. Standard of Review and Applicable Law
We review a trial court's decision to exclude a criminal defendant from trial for an abuse of discretion. Morrison v. State, 480 S.W.3d 647, 655 (Tex. App.-El Paso 2015, no pet.); Kessel v. State, 161 S.W.3d 40, 47 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd); Burks v. State, 227 S.W.3d 138, 144 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); see also Illinois v. Allen, 397 U.S. 337, 338 (1970) (stating that courts must be given sufficient discretion to determine appropriate manner of handling disruptive defendant in courtroom). We will uphold the trial court's ruling so long as it is "within the zone of reasonable disagreement." Kessel, 161 S.W.3d at 44 (quoting Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002)).
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in "all criminal proceedings, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const. amend. VI. "One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial." Allen, 397 U.S. at 338 (citing Lewis v. United States, 146 U.S. 370, 374-75 (1892)); Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001) (stating "the scope of the right of confrontation is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him[.]") (quoting Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985)). This fundamental right to confront one's accusers at trial is one of the very pillars of our criminal judicial system and has "a lineage that traces back to the beginnings of Western legal culture." Coy v. Iowa, 487 U.S. 1012, 1015 (1988); California v. Green, 399 U.S. 149 (1970) ("Our own decisions seem to have recognized at an early date that it is this literal right to 'confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause."). The importance of this right stems from the fact that "there is something deep in human nature that regards face-to-face confrontation between accused and accuser as 'essential to a fair trial in a criminal prosecution.'" Coy, 487 U.S. at 1017 (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)); see also Greene v. McElroy, 360 U.S. 474, 496 (1959) (stating United States Supreme Court "has been zealous to protect" defendants' Sixth Amendment confrontation right "from erosion"). As the United States Supreme Court explained in Pointer v. Texas, 380 U.S. 400 (1965):
There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.Id. at 405. As Justice Kennedy aptly noted in his concurring opinion in Riggins v. Nevada, 504 U.S. 127 (1992):
It is a fundamental assumption of the adversary system that the trier of fact observes the accused throughout the trial, while the accused is either on the stand or sitting at the defense table. This assumption derives from the right to be present at trial, which in turn derives from the right to testify and rights under the Confrontation Clause. At all stages of the proceedings, the defendant's behavior, manner, facial expressions, and emotional responses, or their absence, combine to
make an overall impression on the trier of fact, an impression that can have a powerful influence on the outcome of the trial.Id. at 142 (Kennedy, J., concurring) (internal citations omitted).
The basic right of confrontation is also protected by the Texas Constitution which gives criminal defendants in Texas the right to be present in the courtroom during their trial. Tex. Const. art. I, § 10; Morrison, 480 S.W.3d at 656. Although not implicated here, Article 33.03 of the Texas Code of Criminal Procedure affords an additional statutory right giving defendants the absolute right to remain in the courtroom until the jury has been selected. See Tex. Code. Crim. Proc. art. 33.03; Morrison, 480 S.W.3d at 657 (citing Code of Criminal Procedure Article 33.03 and stating defendant has "absolute right to remain in the courtroom until the jury has been selected"). A defendant's statutory right under Article 33.03 cannot be waived, and a trial court errs by excluding a defendant from the courtroom before a jury has been selected. See Morrison, 480 S.W.3d at 657-58; see also Sumrell v. State, 326 S.W.3d 621, 623 n.2 (Tex. App.-Dallas 2009, pet. dism'd) ("This right is codified under state law in article 33.03 of the Texas Code of Criminal Procedure, which is even more protective of a defendant's rights than the constitutional provisions because the right to be present cannot be waived before the jury is selected.") (citing Miller, 692 S.W.2d at 91).
Article 1, Section 10 of the Texas Constitution states in part: "In all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor. . . .". Tex. Const. art. I, § 10.
Unlike a defendant's statutory right under Article 33.03 to remain in the courtroom until a jury has been selected, a defendant's constitutional right to be physically present in the courtroom during all phases of trial is not unlimited. A trial a court may, at its discretion, remove a defendant from the courtroom for acting in a disruptive, obstreperous, or contemptuous manner. Allen, 397 U.S. at 343-44. As the Supreme Court noted in Illinois v. Allen, 397 U.S. 337 (1970), it is "essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country," and the "flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated." Id. at 343. Explaining that courts "must indulge every reasonable presumption against the loss of constitutional rights," the Allen Court identified "three constitutionally permissible ways" in which a trial court may deal with a disruptive defendant. A trial court may (1) allow the defendant to remain in the courtroom by having him bound and gagged, (2) cite the defendant for contempt, which could require the court to discontinue the trial and imprison the defendant until such time as the defendant promises to behave himself, and (3) remove the defendant from the courtroom "until he promises to conduct himself properly." Id. at 343-45; see also Morris v. State, 554 S.W.3d 98, 116-17 (Tex. App.-El Paso 2018, pet. ref'd) (discussing Allen).
Although the Allen Court held that binding and gagging a defendant was a constitutionally permissible way for a trial court to deal with a disruptive defendant, the Court also expressed serious concerns about the use of such a drastic approach and cautioned that binding and gagging a criminal defendant should be used only "as a last resort" because (1) seeing the shackles and gags "might have a significant effect on the jury's feelings about the defendant," (2) gagging would reduce the defendant's ability to communicate with counsel, and (3) "the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold." Illinois v. Allen, 397 U.S. 337, 344 (1970); see also Deck v. Missouri, 544 U.S. 622, 624, 627-28 (2005) (noting Allen Court's concerns about shackling and gagging defendants; holding use of visible shackles during capital trial's penalty phase is unconstitutional unless use is "justified by an essential state interest") (citation omitted); Morris v. State, 554 S.W.3d 98, 116-17 (Tex. App.-El Paso 2018, pet. ref'd) (noting Allen Court's "grave reservations" regarding binding and gagging defendants). Although the trial court requested that Kapperman be gagged, the bailiff refused indicating the request had to be made in writing and sent "up the chain to the Sheriff." Because Kapperman was not gagged, we need not decide whether the trial court would have been justified in requesting such a procedure. We nonetheless share the Allen Court's grave concerns about the use of shackling and gagging and question the appropriateness of employing such an extreme remedy given the availability of other less drastic measures.
The Allen Court held that a defendant's removal from the courtroom is warranted if, after being warned by the trial court of the possibility of removal, the defendant continues to conduct himself "in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom." Allen, 397 U.S. 343. When a defendant's behavior is of "an extreme and aggravated nature," that discretion encompasses expulsion from the courtroom. Id. at 346.
Under Allen, a defendant may reclaim the right to be present in the courtroom upon demonstrating he is ready to conduct himself appropriately. See id. at 343 ("Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings."). In concluding the defendant's constitutional rights were not violated, the Supreme Court in Allen found it significant that the defendant "was constantly informed that he could return to the trial when he would agree to conduct himself in an orderly manner." Id. at 346.
The Texas Court of Criminal Appeals has not addressed whether Allen requires trial courts to give a defendant the opportunity to return to the courtroom once excluded, and the United States Supreme Court has not provided further guidance on this issue. See Morrison, 480 S.W.3d at 659 (discussing Allen and stating that no Texas court has "directly addressed whether Allen affirmatively requires a trial court to give a defendant the opportunity to return to the courtroom upon an assurance that he will conduct himself appropriately"). And, neither court has articulated the proper procedure or general parameters trial courts must follow to assess whether a defendant should be allowed to return to the courtroom following exclusion. See Morrison, 480 S.W.3d at 660 (stating "what steps a trial court must take to ensure that a defendant is allowed the opportunity to reclaim his right to be present in the courtroom is not entirely clear"); see generally Dotson v. State, 785 S.W.2d 848, 854 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd) (stating Allen "did not prescribe a rigid and precise formula by which trial judges are to respond to disruptive defendants"). Lower courts addressing this issue generally have concluded "that Allen requires a trial judge who has removed a disruptive criminal defendant from the courtroom to, in some form or fashion, offer the defendant the opportunity to reclaim his constitutional right to be present at his trial." Morrison, 480 S.W.3d at 659.
The United States Supreme Court has discussed and cited to Allen in other contexts but not with respect to whether a defendant must be afforded the opportunity to return to the courtroom. See, e.g., Hemphill v. New York, 142 S.Ct. 681, 694 (2022) (addressing admission of unconfronted testimonial hearsay); Deck, 544 U.S. at 624 (addressing use of visible shackles during capital trial's penalty phase); Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986) (addressing deployment of security personnel in courtroom during criminal trial).
After discussing the case law on the issue, the El Paso Court of Appeals stated in Morrison v. State, 480 S.W.3d 647 (Tex. App.-El Paso 2015, no pet.) that:
Although there does not appear to be a bright-line rule in Texas requiring a trial court to follow a particular method to ensure that a defendant is given a reasonable opportunity to return to the courtroom, it appears that, at a minimum, the trial court should inform the defendant of his right to return to the courtroom, and should, either directly or indirectly by using defense counsel as an intermediary, take reasonable steps to assess whether the defendant is ready to reclaim his right to return to the courtroom. In reaching this conclusion, we do not mean to imply that a trial court must accede to a defendant's every request to be returned to the courtroom upon a mere promise that he will conform his conduct to the court's requirement upon his return. To the contrary, we recognize that in some instances, it may be clear that a defendant's promise may have no value depending on the
circumstances, and a trial court must be given the discretion to evaluate the genuineness of any such promise.Id. at 662. The Morrison court also noted that, under some circumstances, "the defendant's initial conduct may be so extreme, outrageous, or violent that it would be futile, or perhaps even dangerous, to offer the defendant the opportunity to return to the courtroom." Id. (citing Jones v. Murphy, 694 F.3d 225, 249 (2d Cir. 2012) and Dotson, 785 S.W.2d at 853-54). We agree with these general principles.
B. Harmless Error
If a court finds that a defendant was excluded improperly from his trial, it must next conduct a harm analysis. Morrison, 480 S.W.3d at 663. Courts use a three-tiered approach to assess harm and the level of harm necessary to warrant appellate reversal depends on which conceptual category the error fits: (1) structural errors, (2) non-structural, constitutional trial errors, or (3) non-structural, non-constitutional trial errors. See Morris v. State, 554 S.W.3d 98, 123-24 (Tex. App.-El Paso 2018, pet. ref'd).
1. Structural Errors
Structural errors comprise a narrow class of cases involving the deprivation of federal constitutional rights. See Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005) (citing Johnson v. United States, 520 U.S. 461, 468-469 (1997)); see also Morris, 554 S.W.3d at 123. If an error is structural, no harm analysis is required because the mere existence of the error so undermines the criminal justice process that automatic reversal of a conviction is warranted. Schmutz v. State, 440 S.W.3d 29, 35 (Tex. Crim. App. 2014); Morris, 554 S.W.3d at 123. This Court may not review and analyze a claim of error as structural error unless the United States Supreme Court has defined the error as structural. See Williams v. State, 273 S.W.3d 200, 225 (Tex. Crim. App. 2008); see also Lake v. State, 532 S.W.3d 408, 411 (Tex. Crim. App. 2017) (Keller, P.J., plurality op.) (only those errors identified by the United States Supreme Court can be structural); Burks, 227 S.W.3d at 143 (same). The United States Supreme Court has identified the total deprivation of counsel as structural error. Johnson, 520 U.S. at 468-69 (emphasis added); see also Johnson, 169 S.W.3d at 235 (noting same); Burks, 227 S.W.3d at 144 (noting same).
The United States Supreme Court has also defined the following errors as structural: (1) lack of an impartial trial judge; (2) the unlawful exclusion of members of the defendant's race from a grand jury; (3) the denial of the right to self-representation at trial; (4) the denial of the right to a public trial; and (5) an instruction that erroneously lowers the burden of proof for conviction below the "beyond a reasonable doubt" standard. See Johnson v. State, 169 S.W.3d at 235; Morris, 554 S.W.3d at 123.
2. Non-Structural Errors
All non-structural errors are considered "trial errors" and are subject to the harm standards set forth under Texas Rule of Appellate Procedure 44.2. See Tex. R. App. P. 44.2; Morris, 554 S.W.3d at 123-24. If a trial error is constitutional, the reviewing court must apply the harm analysis in Rule 44.2(a) and reverse the conviction unless it believes beyond a reasonable doubt that the error did not contribute to the defendant's conviction. Tex.R.App.P. 44.2(a); Morris, 554 S.W.3d at 124.
All non-constitutional trial errors are reviewed under Rule 44.2(b). Tex.R.App.P. 44.2(a); Morris, 554 S.W.3d at 124. Rule 44.2(b) requires the reviewing court to disregard any non-structural, non-constitutional "error[s], defect[s], irregularit[ies], or variance[s]" unless they affect "substantial rights." Tex.R.App.P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Morris, 554 S.W.3d at 124.
C. Error Analysis
The record reflects Kapperman disrupted the orderly administration of justice repeatedly during voir dire on Thursday, January 23, 2020, as the trial court questioned individual jurors challenged for cause. The first disruption occurred when Kapperman made a comment to a dismissed venire member as she left the courtroom purportedly loud enough for the other venire members to hear. The trial court removed the venire panel and admonished Kapperman against communicating with the venire members.
The second disruption occurred after the trial court denied one of Kapperman's challenges for cause. Kapperman stood up while screaming "[t]his is just unconstitutional, man. This is a setup, man. It's just unconstitutional. It's a f***ing setup." He threw his chair down, made a scene in front of the jurors, and he was forcibly removed from the courtroom. Outside the presence of the venire panel, Kapperman returned to the courtroom in handcuffs and complained the handcuffs were too tight. He screamed and made derogatory remarks towards the bailiffs and complained about his treatment while in custody. The trial court judge told Kapperman several times she needed to talk to him, but Kapperman kept insisting his handcuffs were too tight and directed expletives towards the bailiffs including calling one a "f***ing uncle tom" and "f***ing bit***-*ss cop." This prompted the trial judge to announce, "All right. If he won't quit talking, we're going to gag him." Despite the trial court's warnings, Kapperman continued to complain about the handcuffs and the way the bailiffs were treating him, and he called the bailiff an "uncle tom." The trial court judge then admonished Kapperman about the potential consequences of his behavior and asked him to sit in his chair and be quiet. After the handcuffs were removed, the venire panel returned, and the trial court resumed its questioning of individual jurors.
Despite his prior promise to remain quiet, Kapperman made additional statements to the trial judge in front of the venire panel, this time telling the trial court judge he needed to see a therapist. The venire panel was removed and the trial court once again admonished Kapperman telling him that if he had another outburst, he would "be gagged the entire trial." After Kapperman promised to sit quietly, the court recalled the venire panel to the courtroom, but Kapperman had another outburst while the trial court was questioning a challenged juror. Kapperman claimed the trial judge was trying to persuade the juror and he was not "getting a fair trial." After this last outburst, the trial court removed the venire panel and overruled Kapperman's challenge for cause, at which point he stated in front of the challenged venire member, "This is rigged, man." Kapperman then requested a therapist and told the trial court judge that what she was doing was "illegal" and he would report her. The trial court again admonished Kapperman and told the bailiffs, "So you are going to have to gag him."
The parties determined it would not be necessary to question other venire members and voir dire proceedings concluded. Kapperman was not gagged and he remained present during the entire voir dire process. At the end of the day on Thursday, January 23, 2020, proceedings concluded. The trial judge instructed the parties and jury to return the next morning.
The guilt phase of trial began the next morning on Friday, January 24, 2020. Before commencing and without motion or argument of counsel, the trial court announced that Kapperman would be excluded from the courtroom. The trial judge indicated that Kapperman would have to observe the trial from the holdover cell because of his poor behavior the prior day during voir dire. The trial judge explained that the IT division had set up a video for Kapperman to watch the proceedings from the holdover cell.
Kapperman's counsel objected to Kapperman's physical exclusion from the courtroom, but the trial court overruled the objection stating she felt she "had no other choice except to go by video." The trial court allowed Kapperman to meet with his counsel in the holdover cell during breaks in the proceedings, including short breaks during the testimony. When Kapperman complained that the sound was going in and out and he could not hear everything being said in the courtroom, Kapperman's counsel went to the holdover cell to assess the situation for himself. With assistance from the head of IT, the State, and defense counsel, the trial court judge evaluated the problem and adjusted the volume of the broadcast. After concluding the trial court had done what it could to ensure the clarity of the broadcast in the holdover cell, the judge stated that Kapperman was "just going to have to listen carefully."
The trial court did not warn Kapperman either on Thursday (during voir dire) or Friday (before the guilt phase commenced) that he could be excluded from the courtroom due to his outbursts. The record reflects the trial court repeatedly warned Kapperman the day before, during voir dire, that he would be gagged if he continued to make outbursts in front of the venire panel, but there is no indication in the record the trial court warned Kapperman on Friday that he would be physically removed from the courtroom, much less for the rest of his trial. See Allen, 397 U.S. at 343 (stating trial court may remove criminal defendant for "disorderly, disruptive, and disrespectful" conduct if "after he has been warned by the judge that he will be removed if he continues" to engage in such behavior); see generally Ramirez v. State, 76 S.W.3d 121, 129 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (quoting Allen). Nor is there any indication that Kapperman acted inappropriately Friday morning before proceedings began prompting the trial court to exclude him from the courtroom and transferring him to the holdover cell for the duration of his trial on Friday and the following Monday, when the guilt phase resumed. Although defense counsel told the court Friday morning that Kapperman "would like to participate, would like to be present, would like to be in the courtroom," the trial judge denied Kapperman's request to remain in the courtroom. The trial court sent Kapperman to the holdover cell where he remained for the entirety of his trial.
The trial judge could not have removed Kapperman from the courtroom during voir dire because criminal defendants in Texas have an unwaivable statutory right to be present in the courtroom until a jury has been selected. See Tex. Code. Crim. Proc. art. 33.03.
At no point in time following his exclusion from the courtroom on Friday morning did the trial court offer Kapperman the opportunity to return to the courtroom. The first day of the guilt phase concluded on Friday with no indication Kapperman had any outbursts while in the holdover cell. Notwithstanding, when proceedings resumed the following Monday, the trial court denied defense counsel's request to allow Kapperman to return to the courtroom and Kapperman remained in the holdover cell. There is no indication that Kapperman acted out while in the holdover cell on Monday either. The trial court, however, did not give him the opportunity to return to the courtroom for the guilt phase on Monday or even for the punishment phase which began that Monday afternoon. Indeed, Kapperman remained in the holdover cell on Monday and also on Tuesday for the second day of the punishment phase and sentencing.
In his sixth issue, Kapperman argues the trial court erred by failing to sentence him in open court. See Ette v. State, 559 S.W.3d 511, 515-16 (Tex. Crim. App. 2018) (stating "defendants have a right to be present when sentence is pronounced"); see also Tex. Code Crim. Proc. art. 37.06 ("In felony cases the defendant must be present when the verdict is read unless his absence is wilful or voluntary."); id. art. 42.03, § 1(a) (stating that in felony cases, "sentence shall be pronounced in the defendant's presence"). Given our disposition, we need not reach this issue.
Under Allen, a defendant must be warned he may be subject to removal from the courtroom and following exclusion, he must be given the opportunity to return to the courtroom upon a showing he is ready to conduct himself appropriately. Allen, 397 U.S. at 343 ("Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings."). Although the trial judge doubted Kapperman's sincerity when he complained about his ability to hear the proceedings clearly from the holdover cell, there is no indication Kapperman was unruly or disruptive while in the holdover cell, or that he otherwise failed to exhibit courtroom-appropriate conduct once the guilt phase of trial began.
At the conclusion of voir dire and after the jury was released for the day on Thursday afternoon, the trial court judge told Kapperman she had heard him talking to his counsel when both sides were making their strikes. The trial court reminded him to whisper when speaking and Kapperman replied, "Yes, ma'am. I'm sorry." Still, the next morning, before trial commenced and without warning or any further outburst, the trial court excluded Kapperman from the courtroom and never offered him the opportunity to return during his 3-day trial despite repeated requests from his counsel. See Morrison, 480 S.W.3d at 662 (stating "at a minimum, the trial court should inform the defendant of his right to return to the courtroom").
We are mindful of the heavy burden trial judges bear to protect jurors and all other courtroom occupants from harm, as well as the broad discretion trial judges must be afforded when evaluating whether to allow a defendant to return to the courtroom-especially a defendant who behaves violently in the jury's presence. But we also recognize that a defendant's Sixth Amendment right to be present in the courtroom during the guilt and punishment phases of his criminal trial to confront the witnesses giving testimony against him is one of the most fundamental pillars of our criminal judicial system. See Allen, 397 U.S. at 338; see also Rushen v. Spain, 464 U.S. 114, 117 (1983) (stating "the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant"). As the Court in Allen cautioned, courts "must indulge every reasonable presumption against the loss of constitutional rights." Id. at 343.
A trial court cannot reasonably exercise its discretion unless it has the information necessary to evaluate the issue before the court. The record in this case reflects that the trial judge's decision to exclude Kapperman from the courtroom was based solely on his actions during voir dire on Thursday. When defense counsel objected to Kapperman's removal from the courtroom Friday morning before the guilt phase began, the trial court did not consider that Kapperman, who the trial court knew had been severely sleep-deprived during voir dire, was well-rested and his counsel, who had just met with him, believed he should be given the option to be physically present during his trial.
More significantly, when trial resumed the following Monday (after a weekend break), defense counsel objected to Kapperman's continued absence from the courtroom, and he re-urged his request to allow Kapperman to return because "he's gotten sleep, would like to participate, would like to be present, would like to be in the courtroom." The trial court overruled the objection because Kapperman's "conduct during jury selection [the previous week] was just too extreme." The trial court did not consider that it had been four days since voir dire had concluded and that Kapperman had behaved appropriately during the first day of the guilt phase the previous Friday. The trial court similarly did not consider giving Kapperman the opportunity to return to the courtroom for the last day of the punishment phase and the sentencing phase of his trial on Tuesday, even though there is no indication in the record that Kapperman had any outbursts while in the holdover cell on Friday or Monday.
In light of the record before us, we conclude the trial court abused its discretion by excluding Kapperman from his trial during the guilt and punishment phases because the court did not warn Kapperman beforehand that he was subject to removal due to his behavior, and once excluded from the courtroom, the trial court did not inform Kapperman of his right to return to the courtroom and summarily rejected his requests to return without taking any steps to evaluate whether, given the passage of time and the change in circumstances, Kapperman should be allowed to reclaim his constitutional right to be present in the courtroom during his trial. See Allen, 397 U.S. at 343.
While the trial court judge had wide latitude and discretion to address what she believed was a disruptive and stubbornly defiant defendant, we hold the potential deprivation of Kapperman's constitutional right to confront the witnesses against him required the trial court judge to make a meaningful inquiry into the facts and circumstances in existence at the time it made her decision to exclude Kapperman from the courtroom on Friday and the following Monday and Tuesday. The record before us reflects the trial court made no attempt to do so. Compare George v. State, 446 S.W.3d 490, 502 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd) (holding trial court did not abuse its discretion by excluding defendant from courtroom when trial court directed bailiff and defense counsel to consult with defendant about returning to courtroom and, on repeated occasions, trial court encouraged defendant "to return to the courtroom, admonished him concerning the dangers of missing his trial, and attempted to assess whether [the defendant] would agree to conduct himself in an orderly manner").
We express no opinion as to whether Kapperman's counsel or the court bore the burden of assessing whether Kapperman was willing and ready to return to the courtroom. See Morrison v. State, 480 S.W.3d 647, 661 (Tex. App.-El Paso 2015, no pet.) (noting disagreement among lower courts as to whether Allen requires defendants to inform court when they are ready to return and behave appropriately or whether "trial court itself must shoulder the burden of speaking with a defendant periodically throughout a trial to determine if the defendant is willing and ready to return to court in a calmed condition"). Kapperman's counsel requested that Kapperman be allowed to return to the courtroom. As such, we need not reach this issue.
Like our sister court in Morrison, we acknowledge that there may be situations when a trial court may deny a defendant an opportunity to return to the courtroom without abusing its discretion. See generally Morrison, 480 S.W.3d at 662 (stating that under some circumstances "the defendant's initial conduct may be so extreme, outrageous, or violent that it would be futile, or perhaps even dangerous, to offer the defendant the opportunity to return to the courtroom" and "in some instances, it may be clear that a defendant's promise [to behave appropriately if allowed to return to the courtroom] may have no value depending on the circumstances, and a trial court must be given the discretion to evaluate the genuineness of any such promise"). For example, in Jones v. Murphy, 694 F.3d 225 (2d Cir. 2012), the defendant, "who was charged with murder, was violent both within the courtroom and without, had injured a marshal in resisting compliance with a court order, and had expressly threatened further violence." Id. at 243. Jones, the defendant in that case, punched his fist through a Plexiglass window on his way back to jail after the trial court denied his motion to suppress his confession. Several days later during another pre-trial hearing, Jones argued with the trial court after the court denied his motion to dismiss his counsel and proceed pro se, prompting the trial court to instruct the bailiffs to remove Jones from the courtroom. At that point, Jones was "physically restrained by a number of marshals," removed from the courtroom, and placed in a holdover cell where he could be heard "kicking or pounding [the] walls." Id. at 236, 242. Afterwards, the chief marshal informed the trial court that after he was removed, Jones had made threatening comments that he would "continue to fight" and would "bring you people down" and Jones had refused to place his hands behind his back. The marshal was so concerned about the possibility of violence and the safety of courtroom occupants that he recommended to the trial court that Jones be kept in full restraints if Jones returned to the courtroom. After discussing with counsel the best way to proceed, the court expressed its concern about the safety of everyone in the courtroom, should Jones be allowed to return, and stated that "based on everything the Court has observed and stated today and heard today," it would "not [ ] bring [Jones] into the courtroom unless he is highly restrained." Id. at 232. Still, the court announced that it "would leave the decision to defense counsel and Jones and that it would 'listen to any other requests.'" Id. The following morning, defense counsel informed the trial court that Jones, who had not agreed to wear full restraints, wished to be present in the courtroom. After speaking with Jones, the deputy chief marshal reported to the trial court that Jones was being "somewhat confrontational" toward the marshals, and the deputy chief marshal did not "believe that Mr. Jones should be in these proceedings while they're going on for the safety of everybody involved." Id. at 233. He also confirmed that Jones was agitated and was "still talking about yesterday." Id. Relying in part on the deputy chief marshal's assessment of Jones' demeanor and the risk he posed to other occupants if he returned to the courtroom, the trial court found that Jones had, 'by his disruptive behavior, waived any right to be present during the proceedings.'" Id.
When discussing Jones' initial removal from the courtroom, the court noted with respect to this exchange:
The transcript shows a defendant who insisted on speaking personally with the court despite being represented by counsel and who persisted in arguing with the court about its rulings-behavior that, while contentious and improper, would not in itself warrant the extreme response of involuntary exclusion. Nevertheless, caution is appropriate in assessing the trial judge's response to the interaction. Absent specific record findings by the judge about what occurred in the courtroom, a cold transcript provides no insight into tone of voice, body language, or possible overtly threatening behavior that might cast mere spoken words in a different light.Jones v. Murphy, 694 F.3d 225, 238 (2d Cir. 2012).
Similarly, in Dotson v. State, 785 S.W.2d 848 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd), Dotson, who had been charged with aggravated robbery, asked the trial court for permission to make an argument to the court and the jury. The trial court denied Dotson's request to speak to the jury and told him he would have to rely on his trial counsel to do so. When Dotson argued with the trial court and stated that he was "going to voice my objection," the trial court warned Dotson, "If you do it, I'm going to tape you to the chair. I'm going to tape your mouth shut and you are not going to look real good for that jury. Fair warning." Id. at 853. Dotson later caused a disturbance while his counsel was cross-examining a witness. Id. Outside the jury's presence, the trial court warned Dotson that he would be taped to his seat if there were any further disruptions. When Dotson continued to argue with the trial court, the court instructed the bailiff to handcuff Dotson and "tape his mouth." Id. Dotson resisted and had to be forcibly removed from the courtroom sixteen minutes before the closing of evidence during the guilt-innocence phase. Id. at 354. Dotson was also excluded from the entire punishment phase of his trial that afternoon, which lasted only fifteen minutes.
The circumstances in this case are unlike those in Jones and Dotson. Unlike the defendant in Jones, Kapperman was charged with a non-violent crime, online solicitation of a minor. Although he had a violent outburst in the courtroom during voir dire on Thursday, Kapperman did not have any further outbursts while in the holdover cell or threaten future violence either on Friday, Monday or Tuesday. More importantly for purposes of this appeal, the trial court in Jones made a meaningful attempt to evaluate Jones' present frame of mind and overall demeanor before deciding to continue to exclude Jones from the courtroom. See Jones, 694 F.3d at 242 (noting "the court was entitled to rely on the marshal's assessment that, whatever Jones might say, he remained volatile and confrontational, and continued to present a danger to persons in the courtroom"). The trial court did not undertake such inquiry in this case.
Similarly, unlike Kapperman, Dotson was removed from the courtroom the same day he disrupted the courtroom proceedings and engaged in a "violent scuffle" with a bailiff. Kapperman's exclusion from the guilt and punishment phases of his trial was based on his prior conduct during voir dire on a separate day. Given the short duration of the remaining proceedings in Dotson's trial, it was not unreasonable for the trial court to make no further inquiry or offer Dotson the opportunity to return to the courtroom. In Kapperman's case, his exclusion spanned several days, including following a weekend break, during which no further incidents or outbursts were reported.
Having determined the trial court abused its discretion in excluding Kapperman from trial, we must now determine what harmless error standard applies and whether Kapperman was harmed by the exclusion.
D. Harm Analysis
Kapperman argues his exclusion constitutes structural error, because it interfered with his ability to consult his attorney during the testimony of witnesses. He argues the exclusion "borders" on the total deprivation of his right to counsel.
1. Structural Error
This Court may not review and analyze a claim of error as structural error unless the United States Supreme Court has defined the error as structural. See Williams, 273 S.W.3d at 225; see also Lake, 532 S.W.3d at 411 (stating only those errors identified by United States Supreme Court can be structural); Burks, 227 S.W.3d at 143 (same). The Supreme Court has classified only total deprivation of counsel as structural error. Johnson, 520 U.S. at 468-69; see also Johnson, 169 S.W.3d at 235 (noting same); Burks, 227 S.W.3d at 144.
Kapperman does not dispute he was able to consult with his counsel when the court was in recess and during short breaks in between witnesses' testimony. Kapperman's counsel was never denied an opportunity to consult with his client when requested and counsel never complained that the court prevented him from consulting with his client. At most, the record reflects that Kapperman's exclusion from trial impaired his ability to confer with his defense counsel. Thus, because Kapperman's exclusion did not result in the total deprivation of counsel, the trial court's error was not structural, and we must review any error for constitutional harm under Rule 44.2(a) of the Texas Rules of Appellate Procedure. See Haggard v. State, 612 S.W.3d 318, 328 (Tex. Crim. App. 2020) (reviewing violation of defendant's Sixth Amendment right for constitutional error under Rule 44.2(a)); Morrison, 480 S.W.3d at 663-64 (conducting harm review for defendant's complete exclusion from trial); Morris, 554 S.W.3d at 126 (reviewing defendant's erroneous exclusion from guilt-innocence phase of trial for constitutional harm under Rule 44.2(a)).
2. Constitutional Harm
Under Texas Rule of Appellate Procedure 44.2(a), the reviewing court presumes reversal is required unless "the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Tex.R.App.P. 44.2(a); Morris, 554 S.W.3d at 124; see also Clark v. State, No. 14-16-00396-CR, 2017 WL 4320005, at *8 (Tex. App.-Houston [14th Dist.] Sept. 28, 2017, pet. ref'd) (mem. op., not designated for publication) (stating Rule 44.2(a) "creates a rebuttable presumption of harm"). "If, after such analysis, the harm of the error simply cannot be assessed, then 'the error will not be proven harmless beyond a reasonable doubt,'" and reversal is required." Morris, 554 S.W.3d at 124 (quoting Lake, 532 S.W.3d at 411).
When applying the harmless error test under Rule 44.2(a), we must "ask whether there is a 'reasonable possibility' that the error might have contributed to the conviction." Love v. State, 543 S.W.3d 835, 846 (Tex. Crim. App. 2016). The analysis should not focus on the propriety of the outcome. Id.; see also Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007) ("[T]he question for the reviewing court is not whether the jury verdict was supported by the evidence."). Rather, "the question is the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at that verdict-whether, in other words, the error adversely affected 'the integrity of the process leading to the conviction.'" Scott, 227 S.W.3d at 690 (quoting Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989)). In doing so, we must ask ourselves "whether there is a reasonable possibility that the . . . error moved the jury from a state of non-persuasion to one of persuasion on a particular issue." Id. at 690 (citation omitted); see also Love, 543 S.W.3d at 846 (stating reviewing court "should calculate as much as possible the probable impact [of the error] on the jury in light of the existence of other evidence"). "A ruling that an error is harmless is, in essence, an assertion that the error could not have affected the jury." Wells v. State, 611 S.W.3d 396, 410 (Tex. Crim. App. 2020); see also Wall v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006).
When deciding whether an error of constitutional dimension contributed to the conviction or punishment, courts consider non-exclusive factors, such as the nature of the error, whether the error was emphasized by the State, the probable implications of the error, and the weight the jury would likely have assigned to the error during its deliberations. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011). Further, "the presence of overwhelming evidence supporting the jury's verdict can also be a factor in the harmless error calculation." Wells, 611 S.W.3d at 410.
Reviewing courts should consider any and every circumstance apparent in the record that logically informs the harmless error determination, and the entire record is to be evaluated in a neutral manner and not in the light most favorable to the prosecution. Love, 543 S.W.3d at 846. The burden under Rule 44.2(a) is on the State to show beyond a reasonable doubt that the error made no contribution to the verdict. Deck v. Missouri, 544 U.S. 622, 635 (2005); see also Haggard, 612 S.W.3d at 328 ("The State has the burden, as beneficiary of the error, to prove that the error is harmless beyond a reasonable doubt."); Wells, 611 S.W.3d at 411.
3. Guilt Phase
The State argues that Kapperman's exclusion from the guilt phase of trial was not harmful because (1) the evidence of guilt was overwhelming, (2) Kapperman was able to observe the proceedings, (3) Kapperman's absence from the courtroom did not prevent him from assisting his trial counsel, and (4) Kapperman's absence from the courtroom was beneficial because it "prevented him from being able to continue his pattern of overly-disruptive, and even violent outbursts."
The State also argues that:
Appellant does not claim any particular prejudice from his exclusion during the guilt-innocence phase; instead, Appellant claims an amorphous mixture of Appellant's absence and his danger to children. This is insufficient to demonstrate harm, particularly in the face of the overwhelming nature of the State's case."Kapperman, however, does not have the burden to show that the trial court's error was harmful. Rather, it is the State's burden to show the error was harmless beyond a reasonable doubt. Deck, 544 U.S. at 635; see also Haggard v. State, 612 S.W.3d 318, 328 (Tex. Crim. App. 2020) ("The State has the burden, as beneficiary of the error, to prove that the error is harmless beyond a reasonable doubt.").
Although the State bears the burden to prove that a constitutional error was harmless beyond a reasonable doubt, an appellant must still sufficiently brief the issue on appeal. See Tex. R. App. P. 38.1(i) (stating brief must contain "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); Crawford v. State, 595 S.W.3d 792, 801 (Tex. App.-San Antonio 2019, pet. ref'd) (holding defendant waived issue challenging violation of Sixth Amendment by not identifying specific testimony that allegedly violated his right to confrontation or explaining how he was harmed by error); see generally Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (holding defendant waived issue challenging trial court's failure to give jury instruction by failing to address whether alleged error was harmless and because authorities he cited did not support his issue).
Kapperman does not argue that his exclusion from the guilt phase of trial contributed to his conviction. Rather, Kapperman argues his exclusion from the guilt and punishment phases was harmful because his absence from the courtroom during both phases contributed to his punishment. Thus, it appears Kapperman has not raised or adequately briefed the question of whether his exclusion from the guilt phase was harmful and contributed to his conviction. And even if Kapperman had adequately addressed the issue, he would not have prevailed.
Kapperman argues:
The State's emphasis on Mr. Kapperman's potential danger to children and women combined with his total exclusion from the trial could have led the jury to draw a negative inference about the amount of danger Mr. Kapperman posed, leading to a lengthier punishment than they might otherwise have given.
The only question before the jury during the guilt phase was whether the State had proven beyond a reasonable doubt that Kapperman texted and solicited sex from Detective Reiser, a person Kapperman believed was a fifteen-year-old girl. The evidence of guilt presented to the jury was strong, if not overwhelming. The messages exchanged on MocoSpace and by text between Dizzo and Detective Reiser establish the guilt of the person who referred to himself as Dizzo, a point Kapperman does not dispute. And, as previously discussed, there is ample evidence, both direct and circumstantial, that Kapperman was the person communicating with Detective Reiser using Dizzo as his alias. See Wells, 611 S.W.3d at 410 (stating strength of evidence is one factor to be considered when conducting harm analysis under Rule 44.2(a)). The jury knew what Kapperman looked like because he was present in the courtroom during voir dire, and this would have allowed the jury to compare Kapperman to the photograph of himself that Dizzo sent to Detective Reiser.
Kapperman was able to observe the trial proceedings from the holdover cell. When Kapperman complained he was having difficulty hearing the testimony during the first day of the guilt phase, the trial court, with assistance from the head of IT, the State, and defense counsel, evaluated the problem and adjusted the volume of the broadcast. The court also asked Kapperman's defense counsel to meet with Kapperman in the holdover cell before both days of the guilt proceeding and confirm that the equipment was working well, and counsel did so.
Kapperman was also able to assist his trial counsel with his own defense, albeit not to the same extent he likely would have if he had been sitting at the defense table. As discussed, Kapperman was able to consult with his counsel during breaks between witnesses, lunch breaks, and when the court was in recess. And there is no indication in the record that Kapperman's counsel was ever denied an opportunity to consult with his client when requested and counsel never complained that he was unable to adequately consult with his client. It is not evident what more Kapperman's presence in the courtroom would have added in terms of the defense's ability to present its case to the jury. It is also notable that the State did not mention, much less emphasize, Kapperman's outbursts or his exclusion from trial.
The holdover cell is located so close to the courtroom that the sound of the broadcast into the holdover cell could at times be heard at the back of the courtroom.
Based on the record before us, we conclude the trial court's error in excluding Kapperman from the guilt phase of trial did not contribute to Kapperman's conviction, and that it was therefore harmless under Rule 44.2(a). See Tex. R. App. P. 44.2(a). We overrule Kapperman's second issue as it relates to the guilt phase of his trial.
4. Punishment Phase
The State argues that Kapperman's exclusion from trial was not harmful during the punishment phase because the aggravating facts presented during punishment warranted Kapperman's sentence. It also argues that Kapperman's absence from the courtroom was beneficial because it "prevented him from being able to continue his pattern of overly-disruptive, and even violent outbursts."
During punishment, the State presented evidence of other alleged extraneous bad acts and offenses. The State presented evidence that Kapperman had solicited sex from another undercover officer he believed to be a fourteen-year-old girl only weeks before he exchanged texts with Detective Reiser. The State also introduced evidence of Kapperman's lengthy criminal history involving sex-related offenses, including the fact he pleaded no contest in juvenile court in 2004 to the offense of aggravated sexual assault of a child. In his plea, Kapperman stipulated he penetrated his younger sister's anus with his sexual organ in 2003. Kapperman was only thirteen years old when the offense occurred, and the record indicates that his sister was approximately eleven years old.
Kapperman had also pleaded guilty twice as an adult to the Class B misdemeanor offense of indecent exposure for exposing his genitals, and in one case also masturbating in a public place, and twice to the state jail felony offense of failure to register as a sex offender. The State's closing argument focused on the danger Kapperman presented to the community, especially children, based in part on these extraneous bad acts and offenses. See generally Rocha v. State, 16 S.W.3d 1, 21 (Tex. Crim. App. 2000) (holding plea for law enforcement is proper jury argument during punishment phase).
The State also argues that Kapperman's exclusion from the courtroom was beneficial to him because it "prevented him from being able to continue his pattern of overly-disruptive, and even violent outbursts." Even if that were the case, that does not mean there is no reasonable possibility his removal did not also contribute to the assessment of punishment in this case. See Love, 543 S.W.3d at 846 (stating when applying harmless error test under Rule 44.2(a), courts must "ask whether there is a 'reasonable possibility' that the error might have contributed to the conviction").
The venire panel observed four outbursts from Kapperman during voir dire. The first was a simple yet inappropriate "God bless you" comment to a departing venire member. The second outburst, however, involved Kapperman screaming, throwing a chair, and having to be removed forcibly from the courtroom. Despite engaging in such conduct, Kapperman returned to the courtroom and had two other outbursts, during which he complained about the fairness of the proceeding. Although Kapperman had a statutory right to remain in the courtroom during voir dire, his continued presence in the courtroom during voir dire followed by his unexplained and continued exclusion from the courtroom might have led the jury to speculate that Kapperman had engaged in even more extreme behavior following voir dire requiring his removal from the courtroom not only during the guilt phase, but also the punishment phase. See Kessel, 161 S.W.3d at 48 ("When a trial court takes the extreme measure of ordering a defendant removed from the courtroom for the entire punishment phase of his trial, the jury is likely to make a negative inference simply from the fact that the trial court ordered him removed."); see generally Morrison, 480 S.W.3d at 664 (stating "jury could have drawn a negative inference from the fact that the trial court permanently excluded [the defendant] from his entire trial after only witnessing a single and relatively short outburst" and "[g]iven the extreme nature of the trial court's decision to immediately banish [the defendant] from the courtroom based on that incident, the jury may have speculated that [the defendant] had previously engaged in much more egregious, and perhaps even violent, conduct to warrant that decision").
The trial court told the jury that Kapperman would be watching the proceedings from another location and the court would be taking breaks periodically to allow Kapperman to confer with his counsel.
The trial court's decision to allow Kapperman to remain in the courtroom during voir dire after his outbursts was almost certainly because criminal defendants in Texas have an unwaivable statutory right to be present in the courtroom until a jury has been selected. See Tex. Code. Crim. Proc. art. 33.03; see also Morrison, 480 S.W.3d at 658 (holding trial court violated defendant's rights under Article 33.03 by removing defendant from courtroom before jury was selected and noting trial court had other options available under Allen to address defendant's disruptive behavior "such as temporarily stopping the proceedings, citing Appellant for contempt, or having him bound and gagged for the remainder of the jury selection process"). The jury, however, was unaware that Kapperman's continued presence was required by Article 33.03 and had no way of knowing why the trial court allowed him to remain in the courtroom during voir dire following his outbursts.
Kapperman's assault against his younger sister, as well as the extent of his criminal history, and the nature of the crimes to which he had pleaded guilty certainly would have factored into the jury's assessment of punishment. But this same information also informed the State's suggested sentence of at least thirty years' imprisonment. The jury assessed Kapperman's punishment at sixty years' imprisonment. While the evidence of Kapperman's extraneous bad acts and offenses supports Kapperman's sentence, it is difficult to imagine that Kapperman's continued absence from the courtroom did not have some impact on the jury's decision to assess his punishment at twice the length of the State's proposed sentence. See Love, 543 S.W.3d at 846 (indicating Rule 44.2(a) analysis should not focus on propriety of outcome); see generally Morris, 554 S.W.3d at 126 (noting difficulty of evaluating constitutional harm based on erroneous exclusion of defendant from trial because defendant's absence from courtroom "is palpable and its impact cannot readily be assessed" and acknowledging "intangible effect that [the defendant's] absence may have had on the jury").
Given the significant disparity between the State's recommended punishment and the punishment assessed by the jury, the State's focus on Kapperman's ongoing danger to the community and the need to protect the public, his sister, and his daughters from him, and the fact Kapperman remained in the courtroom during voir dire after his outbursts, we cannot say with confidence that Kapperman's exclusion from the courtroom did not affect the jury's assessment of punishment to his detriment. See Kessel, 161 S.W.3d at 48 (holding erroneous exclusion of defendant from punishment hearing was harmful "especially in light of the State's argument based on recidivism and the continuing danger to the community the State claimed appellant posed").
5. Conclusion
We sustain Kapperman's second issue in part. Because Kapperman's exclusion from the courtroom was harmful during the punishment phase of trial, we remand for a new trial on punishment only. See Tex. Code Crim. Proc. art. 44.29(b).
Informal Competency Inquiry
In his third issue, Kapperman argues the trial court abused its discretion by failing to conduct an informal inquiry into Kapperman's competency to stand trial given his behavior and outbursts during voir dire.
A. Standard of Review and Applicable Law
In Texas, an accused is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. art. 46B.003(b); see Laflash v. State, 614 S.W.3d 427, 431 (Tex. App.-Houston [1st Dist.] 2020, no pet.). A person is incompetent to stand trial if he lacks sufficient present ability to consult his lawyer with a reasonable degree of rational understanding, or a rational as well as factual understanding of the proceedings against the person. Tex. Code Crim. Proc. art. 46B.003(a); Laflash, 614 S.W.3d at 431-32.
Before concluding that a defendant is incompetent to stand trial, the trial court must first conduct an informal inquiry, and, if warranted, a formal competency trial. Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018); Laflash, 614 S.W.3d at 432. An informal inquiry is triggered upon a suggestion from any credible source that a defendant may be incompetent. Boyett, 545 S.W.3d at 563 (citing Tex. Code Crim. Proc. art. 46B.004(a), (c), (c-1)); see also Clark v. State, 592 S.W.3d 919, 925 (Tex. App.-Texarkana 2019, pet. denied) ("The amount of information necessary to trigger an 'informal inquiry' is low. It 'may consist solely of a representation from any credible source that the defendant may be incompetent.'").
Evidence suggesting the need for an informal inquiry may be based on observations made in relation to one or more of the factors set forth in Code of Criminal Procedure Article 46B.024, or on any other indication that the defendant is incompetent under Article 46B.003. Tex. Code Crim. Proc. arts. 46B.004(c-1), 46B.024; see Laflash, 614 S.W.3d at 432. The Article 46B.024 factors include the capacity of the defendant during criminal proceedings to (1) understand rationally the charges against him and the potential consequences of those pending charges, (2) disclose to his defense counsel pertinent facts, events, and states of mind, (3) engage in a reasoned choice of legal strategies and options, (4) understand the adversarial nature of the criminal proceedings, (5) exhibit appropriate courtroom behavior, and (6) testify. Tex. Code Crim. Proc. art. 46B.024(1)(A)-(F); see also see Laflash, 614 S.W.3d at 432. A defendant's mental illness or suicidal thoughts, without evidence from a credible source that he cannot rationally understand the proceedings against him or that he cannot engage rationally with counsel in the pursuit of his own best interest, does not amount to a suggestion of incompetency. See Turner v. State, 422 S.W.3d 676, 691 (Tex. Crim. App. 2013) (addressing mental illness); Vaughn v. State, No. 05-03-01723-CR, 2005 WL 15209, at *3 (Tex. App.- Dallas Jan. 4, 2005, pet. ref'd) (mem. op., not designated for publication) ("A defendant can be suicidal and still be able to consult with counsel and understand the proceedings against him."); accord Reeves v. State, 46 S.W.3d 397, 399-400 (Tex. App.-Texarkana 2001), superseded by statute on other grounds (concluding evidence of defendant's drug addiction and suicide attempt did not reflect on defendant's present ability to understand and participate in proceedings against her); Thompson v. Johnson, 7 F.Supp.2d 848, 860 (S.D. Tex. 1998) ("[A] history of mental illness and/or attempts at suicide do not per se establish a defendant's incompetency to stand trial.").
We review a trial court's decision regarding whether to conduct an informal inquiry for abuse of discretion. See Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009); Laflash, 614 S.W.3d at 432. Under this standard, we do not substitute our judgment for that of the trial court but determine whether the trial court's decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426; Laflash, 614 S.W.3d at 432-33.
B. Analysis
Kapperman argues the trial court abused its discretion by not conducting an informal competency inquiry. He argues there were several suggestions of incompetency that should have alerted the trial court to the need for such an inquiry including (1) his counsel's concerns about Kapperman's ability to assist with jury selection, (2) Kapperman's repeated requests to speak to a mental health professional, and (3) the trial court's own concerns over Kapperman's disruptive and inappropriate courtroom behavior, and suicidal thoughts. The State argues the evidence does not amount to a suggestion of incompetency because it merely reflects that Kapperman's "outbursts and erratic behavior were dilatory behavior to obstruct trial."
Kapperman directs us to his counsel's statements to the trial court during voir dire when he expressed concern about Kapperman's ability to contribute to the jury selection process. Defense counsel's concerns that Kapperman would be unable contribute to jury selection, however, were based on concerns Kapperman was sleep-deprived, not concerns about Kapperman's competency:
My only concern, based on what I'm hearing this morning, is if he, in fact, is working with no sleep since 4:00 or 5:00 a.m. from the previous day. That concerns me from the standpoint I've got to rely on Mr. Kapperman to be attentive to help me. That's my concern with proceeding today.
Kapperman further argues that his repeated requests to speak to a mental health professional should have alerted the trial court of the need to conduct an informal competency inquiry. According to Kapperman, these outbursts are evidence he did not understand the proceedings against him or could not communicate with his counsel because they were unrelated to the voir dire proceedings, indicating he was having mental health issues.
Inappropriate outbursts and comments during trial are not necessarily evidence of one's incompetency to stand trial. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999) (holding outbursts that were "timely, topical, and logically related to the questions and answers offered during the examination of other witnesses" did not "constitute evidence of his inability to communicate with counsel, or factually appreciate the proceedings against him"). "If such actions were probative of incompetence, one could effectively avoid criminal justice through immature behavior." Id.
The record reflects most of Kapperman's outbursts were prompted by statements made and questions posed during the prospective jurors' individual examinations, such as when Kapperman told Juror No. 18 "God bless you," after she was dismissed because she admitted she could not be fair to him. Kapperman claimed the trial judge was improperly attempting to persuade jurors and thus depriving him a of fair trial when Juror Nos. 32 and 53 were being questioned and he decried the proceedings as "unconstitutional," "a setup," and "rigged." Such complaints about the fairness of the trial proceedings are "timely, topical, and logically related" to the ongoing proceedings. See id.
Kapperman's repeated demands to speak to a mental health professional are also logically related to the trial proceedings, specifically, Kapperman's apparent attempts to delay or postpone trial. The first day of trial on Tuesday, January 21 ended abruptly and the first venire panel was dismissed after Kapperman experienced what the State describes as a medical episode requiring him to go to the hospital. Kapperman, who was examined and released by the hospital that day, returned to court the next morning. Kapperman experienced another medical episode after the pretrial conference the next day, Wednesday, January 22, and he was sent to the hospital again. Kapperman was examined and again released by the hospital which determined "everything looked good." When Kapperman returned to court on Thursday, January 23, the trial judge expressed her concern that Kapperman might be malingering to postpone or delay his trial and she assured him that his trial was going forward. Kapperman then told the trial court he lacked confidence in his attorney and stated he was not ready for trial. The trial judge was not persuaded by Kapperman's arguments and continued with trial.
Later that morning, Kapperman had a major outburst when the trial judge was examining a potential juror at the bench requiring his forcible removal from the courtroom. Kapperman, who was returned to the courtroom in handcuffs, complained to the trial judge that the handcuffs were too tight, he screamed at the bailiffs, and he complained about the treatment he had received while in custody. When the trial judge announced that Kapperman would need to be gagged if he did not stop talking, Kapperman abruptly requested to speak to a mental health professional. Kapperman's counsel acknowledged that Kapperman was sleep-deprived and "not in the greatest mental state, but he did not "have any reason to believe he is incompetent." The trial court agreed and proceeded with voir dire. Before the court could complete the first potential juror's examination, however, Kapperman announced to the venire panel that he needed to see a therapist and he continued to demand to speak to a mental health professional and claimed to have "mental issues" after the panel was removed. When Kapperman's efforts to delay trial by asking to talk to a mental health professional failed, he immediately complained that he was having "bad pains" in his side. Considering the context of the voir dire proceedings as a whole, it is apparent that Kapperman's demand for a therapist was logically related to the trial proceedings because it was one of several dilatory tactics he employed to attempt to derail and postpone trial. See id. (holding outbursts that were "timely, topical, and logically related to the questions and answers offered during the examination of other witnesses" did not "constitute evidence of his inability to communicate with counsel, or factually appreciate the proceedings against him"); see generally George, 446 S.W.3d at 501 (holding defendant's outbursts which "did not consist of any bizarre or unusual rants that might signal incompetence" were not probative of his competency to stand trial).
The fact that Kapperman was asking to speak to a mental health professional and claimed he had mental health issues also does not constitute a suggestion of incompetency. There is no evidence in the record Kapperman suffered from a mental illness at the time of trial, and even if there were, a defendant's mental illness does not amount to a suggestion of incompetency unless there is also evidence he cannot rationally understand the proceedings against him or engage rationally with counsel in the pursuit of his own best interest. See Turner, 422 S.W.3d at 691.
Kapperman's counsel never indicated that Kapperman was unable to communicate with him about his defense or that Kapperman lacked a rational or factual understanding of the proceedings against him. See Tex. Code Crim. Proc. art. 46B.003 (defining incompetency). In fact, after Kapperman insisted on speaking to a mental health professional, Kapperman's counsel told the court that he did not believe Kapperman was incompetent. The record, which supports counsel's assertion, also reflects that Kapperman behaved appropriately during the guilt-innocence and punishment phases of trial and did not make any outbursts or engage in any disruptive behavior during that time. See Tex. Code Crim. Proc. art. 46B.024(1)(A)-(F) (identifying relevant factor as defendant's capacity to exhibit appropriate courtroom behavior).
Kapperman also demonstrated that he had a rational and factual understanding of the proceedings against him during the pretrial conference on Wednesday, January 22, 2020. During the conference, the trial judge informed Kapperman that he was charged with online solicitation of a minor, which is a second-degree felony, punishable by two to twenty years' incarceration and a fine of up to $10,000. The punishment range in Kapperman's case, however, was enhanced to five to ninety-nine years or life in imprisonment and a fine of up to $10,000 because he had a prior, juvenile adjudication for aggravated sexual assault of a child. Kapperman responded, "How can they hold my juvenile record against me?" Kapperman argued that he had served his time for his juvenile offense, including serving time in the TYC, where other offenders had tried to rape him. Kapperman claimed he had been "touched on when [he] was young" and his defense counsel told the court that Kapperman "had psychiatric treatment for being a victim of sexual assault as a child." The trial judge explained to Kapperman that, whether he agrees with it or not, Texas law allows a defendant's prior juvenile adjudication to be used against him for enhancement purposes if the defendant served time in the TYC. The court instructed Kapperman that he could testify about his own sexual assault, the conditions he experienced at TYC, and the other issues he brought to the trial court's attention if he decided to take the stand during the punishment phase, but he could not do so during the guilt-innocence phase. Kapperman indicated he understood.
The trial court then asked the State to discuss the evidence she intended to present to the jury. After hearing from the State, the court asked Kapperman's counsel if he had a defense he wished to share with the court. Counsel did not. The judge also asked whether Kapperman had an assault case pending. Defense counsel stated that Kapperman had been charged with two offenses for assault of a public servant stemming from his arrest in the current solicitation case, and one of those assault charges had already been dismissed. The State asserted Kapperman had run from the officers and fought with them as they tried to arrest him. When asked if he had anything he wished to add to the discussion, Kapperman claimed he did not know the people were police officers because they never identified themselves as police officers and he denied hitting them.
The trial court noted that a similar charge for online solicitation of a minor was pending against Kapperman in Denton County. The State confirmed they were planning to introduce evidence of the Denton County case during the punishment phase and told the trial court they had witnesses prepared to come to court to testify on the matter. At that time, the trial judge informed Kapperman that if the jury convicted him in this case, the State would be allowed to admit evidence of any unadjudicated bad acts or offenses during the punishment phase of trial, including evidence of the Denton County case. The trial judge also informed Kapperman that he would be sent to Denton County after the current trial, and he would get credit on his Denton County case for any time spent in custody in Harris County. The judge also told Kapperman that if he were convicted in both cases, the judge presiding over the Denton County case would decide whether to stack his sentences. Kapperman thanked the court for the information, stating, "Thank you for explaining that because I wasn't sure how that worked as far as if that-if something was to happen here, if I'd go to TDC or if I was going to county. No one explained that to me. I appreciate that."
The State informed the trial court that they had extended a plea offer for twelve years to Kapperman at the previous trial setting, and they would honor that offer for the day only. The trial judge stated:
[D]o you have any questions of me? There are really many good choices here. You can go to trial and maybe you will be found not guilty. You can go to trial and maybe get 75 years. I don't know. I just don't know. These cases are different-these cases-you heard what the jurors said yesterday about protecting children.
Kapperman responded, "And I also heard that man that stood up and talk about entrapment." The judge explained to Kapperman that law enforcement officers have been using similar chat operations for years and barring unusual circumstances courts consistently have determined that the procedures used in these cases do not constitute entrapment. Kapperman then asked, "But isn't a police officer supposed to identify themselves if they are asked if they're a police officer?" The judge replied that, contrary to what many defendants believe, police officers need not identify themselves when asked. Kapperman's informed and coherent dialogue with the trial judge, including his rational and relevant questions, reflects that he had both a rational and factual understanding of the proceedings against him. See Tex. Code Crim. Proc. art. 46B.003 (defining incompetency); Moore, 999 S.W.2d at 395 (holding outbursts that were "timely, topical, and logically related to the questions and answers offered during the examination of other witnesses" did not "constitute evidence of his inability to communicate with counsel, or factually appreciate the proceedings against him").
Kapperman's argument that the trial court should have realized that an informal competency inquiry was warranted because "the court was concerned enough about Mr. Kapperman's behavior to order him placed on suicide watch," is also not persuasive. The record reflects that the trial court did not place Kapperman on a suicide watch because she was concerned about his mental well-being. Rather, the trial court told Kapperman that she was required to request a suicide watch because he indicated to her that he might kill himself. She stated, "I have to do that. I don't have a choice."
Although the trial court stated she was placing Kapperman on a suicide watch, the court clarified the next day that she had in fact submitted a standard form requesting that the mental health experts at the jail examine Kapperman and determine whether a suicide watch was warranted. Kapperman was examined at the jail and he was never placed on a suicide watch.
Furthermore, even if Kapperman's statement could be construed as a suicidal ideation ("So if I go crazy and I hurt myself, then what?"), suicidal thoughts alone do not constitute a suggestion of incompetency unless there is also evidence the defendant cannot rationally understand the proceedings against him or engage rationally with counsel in the pursuit of his own best interest. See Vaughn, 2005 WL 15209, at *3 ("A defendant can be suicidal and still be able to consult with counsel and understand the proceedings against him."); see generally Reeves, 46 S.W.3d at 399-400 (concluding evidence of defendant's suicide attempt did not reflect on her present ability to understand and participate in court proceedings). As previously discussed, the record reflects that Kapperman had both a rational and factual understanding of the proceedings against him and there is no indication he was unable to communicate with his counsel regarding his defense. See Tex. Code Crim. Proc. art. 46B.003 (defining incompetency).
We are also not persuaded by Kapperman's argument that the trial court should have realized that an informal competency inquiry was warranted because it had threatened to have Kapperman gagged and then excluded him from trial based on his disruptive and inappropriate courtroom behavior. As noted, inappropriate outbursts, disruptive behavior, and other violations of court decorum are not evidence of a defendant's incompetency to stand trial. See Moore, 999 S.W.2d at 395 (rejecting argument that "unruly and disruptive courtroom demeanor are probative of incompetence to stand trial" because "[i]f such actions were probative of incompetence, one could effectively avoid criminal justice through immature behavior.").
Kapperman's behavior and outbursts during voir dire, including the context in which they were made, do not suggest Kapperman lacked sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or that he did not have a rational and factual understanding of the proceedings against him. Thus, we cannot say the trial court abused its discretion by not conducting an informal competency inquiry. See Lindsey v. State, 544 S.W.3d 14, 26 (Tex. App.- Houston [14th Dist.] 2018, pet. ref'd) (holding trial court did not abuse its discretion in failing to conduct informal inquiry into defendant's competency "[c]onsidering the cumulative effect of [the defendant's] statements and actions and the context in which they were made").
We overrule Kapperman's third issue.
Challenges for Cause
In his fourth issue, Kapperman argues the trial court violated his right to a fair and impartial trial by a jury of his peers when the court denied his challenges for cause to Juror No. 44 and Juror No. 53 and failed to grant him two additional peremptory strikes.
A. Standard of Review and Applicable Law
A defendant may challenge an individual member of a venire panel "for cause" when the venire member demonstrates "a bias or prejudice in favor of or against the defendant" or "has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely. . . ." Tex. Code Crim. Proc. art. 35.16 (a)(9) & (c)(2). Among other things, a challenge for cause is appropriate when a venire member would consider a defendant's failure to testify at trial as evidence of guilt, could not consider the full range of punishment, or would give more weight to a police officer's testimony. See Montoya v. State, 810 S.W.2d 160, 168-69 (Tex. Crim. App. 1989) (addressing failure to testify); Harris v. State, 784 S.W.2d 5, 21 (Tex. Crim. App. 1989) (affording higher degree of credibility to police officers); Pierce v. State, 696 S.W.2d 899, 901-03 (Tex. Crim. App. 1985) (addressing inability to consider full range of punishment).
We review a trial court's denial of a challenge for cause for a clear abuse of discretion. See Hudson v. State, 620 S.W.3d 726, 731 (Tex. Crim. App. 2021); Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010). We look to the entire record to determine whether sufficient evidence exists to support the court's ruling. Hudson, 620 S.W.3d at 731; Davis, 329 S.W.3d at 807. "The test is whether a bias or prejudice would substantially impair the venire member's ability to carry out the juror's oath and judicial instructions in accordance with the law." Davis, 329 S.W.3d at 807 (quoting Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009)).
Before venire members may be excused for cause, the law must be explained to them, and they must be asked whether they can follow that law, regardless of their personal views. Davis, 329 S.W.3d at 807. The proponent of a challenge for cause has the burden of establishing that the challenge is proper. Id. The proponent does not meet this burden until he has shown that the venire member understood the requirements of the law and could not overcome his or her prejudice well enough to follow the law. Id.
Because the trial judge is in the best position to evaluate a venire member's demeanor and responses, we review a trial court's ruling on a challenge for cause with considerable deference. See Hudson, 620 S.W.3d at 731; Davis, 329 S.W.3d at 807. This is particularly true when the venire member's answers concerning her ability to follow the law are vacillating, equivocating, ambiguous, unclear, or contradictory. See Hudson, 620 S.W.3d at 731; Davis, 329 S.W.3d at 807.
B. Analysis
Kapperman argues the trial court abused its discretion by denying his challenges for cause to Juror No. 44 and Juror No. 53.
1. Juror No. 44
During voir dire, Juror No. 44 conveyed she would give more credibility to a police officer's testimony because her son was serving in the military. Juror No. 44 reasserted her belief when defense counsel questioned her about it. Although she understood that all witnesses should "start at the exact same spot when it comes to credibility," she agreed she would "tend to start [with a] police officer ahead of others in terms of credibility before [she had] heard a word" of the officer's testimony. Later, the State asked Juror No. 44 if she could "wait until [she] hear[d the police officer] testify before [she] decide[d] whether or not [she] ought to believe what [the police officer] is saying. Is that something that you can do, wait until he testifies?" Juror No. 44 responded, "Yes, that I can do." The trial court then tried to clarify the juror's views:
Court: Okay. So you understand if you are willing to do that, you are willing to hear his testimony before you decide how much credibility to give him, then basically you start him out the same as all the other witnesses. Right?
Juror: But I would probably still give what he says-I'd give what he says more credibility.
Court: Well, is that because of his experience and training?
Juror: I'm sorry?
Court: Is that because of his experience and training?
Juror: And he's a police officer and military. They are under-they take different oaths, different responsibilities than other people.
Court: What if he is a terrible police officer?
Juror: Well, they could be a terrible person coming up to testify and lying, so . . .
Court: Right. What if he lost evidence? What if he failed to write his report? What if you think he hid evidence?
Juror: Well, if that was brought up in trial, then I would take that into consideration.
Court: You can see there's a very good reason why you should not decide how much credibility to give someone until after they testify. You see that? You know what will happen.
Juror: Right.
Court: So there's nothing wrong with giving somebody more credibility because he's been trained to observe things, for example. But you don't know if he did it in this case. Right? And so that's why it's so important that you hear the testimony. So you cannot decide their credibility before you hear it. You have to hear them before you decide the credibility. Does that make sense to you?
Juror: Yes.
Court: And throughout this, she's been shaking her head yes. I think you basically agree. So can you promise me that you will wait and hear the police officer's testimony before you give him more credibility?
Juror: Yes.
Court: Or-I'm sorry. Before you decide how much credibility to give him. Now I'm doing it. Can you promise me that?
Juror: Yes. After he testifies, if I don't think it sounded correctly, then I could take that into consideration, if I didn't believe some believe [sic].
Court: So you're not going to automatically believe someone just because they're in law enforcement?
Juror: No.
Court: So can you promise me that you will start him off on a clean slate just like all the other witnesses and then decide after you hear him or her how much credibility to give him?
Juror: Yes.
Court: Then I believe she's qualified. Anything else?
Defense: That answer is different than when I asked you. Just to be clear, between a police officer, a civilian, or any other witness, you will start them off on equal footing?
Juror: I will start them off on equal footing, but-
Court: That's all-
Juror: -but I would probably give police officer, if I believe him, a little bit more than somebody else.
Defense: Just based on the fact that he or she-
Juror: Is a police officer.
Court: Is that because you are just predicting that the officers you will hear are probably going to be truth-tellers, not because you automatically believe they're truth-tellers?
Juror: No, I don't, but I just think that most police officers are obviously upstanding and I'd believe what they say.
Court: I'm sorry?
Juror: I would believe what they said at trial.
Court: Well, you just told me you might not if they're a bad officer.
Juror: Well, if it was obvious that they were-
Court: You may proceed.
State: Thank you, Judge. Sorry. So all we're asking is for you to wait until you see-
Court: I really can't rule if I can't hear you.
State: Sorry, Judge. We're just asking you to wait until you determine what kind of officer he is to decide whether or not you want to find him credible and believe what he is saying. So we just want you to wait to see him testify before you decide is credibility, wait until he testifies.
Juror: Okay. Yes.
Court: So I'm going to instruct you if you are on the jury that all witnesses start out the same and you may not decide the credibility until you are listening to the testimony. Police officers don't get a leg up because they're in uniform or just because they're law enforcement. You have to assume neutrality, right? You have to be neutral, just like the judge is neutral, to all witnesses until you hear them testify. Can you promise me you will do that?
Juror: Yes, I can.
Court: All right. You've got one more shot.
Defense: I don't need further questions, Judge.
Court: All right. I think you are committed to following the law.
And we appreciate your honesty. You're still on the panel. Thank you.
The record reflects that Juror No. 44 initially gave contradictory answers in response to questions from the defense and the State as to whether she would afford a higher degree of credibility to a police officer's testimony over the testimony of other witnesses before hearing the officer's testimony. After the trial court explained to Juror No. 44 that jurors must be neutral and cannot give some witnesses a "leg up" over other witnesses when assessing their credibility simply because they are police officers, and following further questioning by the State, defense counsel, and the trial court, however, Juror No. 44 eventually agreed that she would be neutral "to all witnesses until [she] hear[d] them testify." At most, Juror No. 44's answers were vacillating or contradictory. In such circumstances, we defer to the trial court's decision. See Hudson, 620 S.W.3d at 734 (holding appellate court should defer to trial court's findings when venire member's answers were vacillating or contradictory); Gardner, 306 S.W.3d at 296 (holding that when venire member vacillates or equivocates on his ability to follow law, reviewing court must defer to trial court); see also Rivera v. State, No. 01-15-00239-CR, 2016 WL 1644871, at *4 (Tex. App.-Houston [1st Dist.] Apr. 26, 2016, pet. ref'd) (mem. op., not designated for publication) (holding trial court did not abuse its discretion in denying defendant's challenge for cause to venire member who had expressed bias towards defendants who did not testify but vacillated between statements doubting whether she could follow law).
Based on the entire voir dire record, we hold the trial court did not clearly abuse its discretion by denying Kapperman's challenge for cause for Juror No. 44.
2. Juror No. 53
During voir dire, Juror No. 53 stated she would hold Kapperman's failure to testify against him and she would be unwilling to consider the full range of punishment. Kapperman challenged her qualifications on both grounds.
The State also challenged Juror No. 53 based on the 5th Amendment.
Defense: . . . we talked about the range of punishment in terms of a case if there's a conviction, it can be anywhere from probation, if there are certain factors it can be a 2-to-20-year case or a five to life. I think in my response to my questions that you didn't believe you could consider the full range of punishment.
Juror: Yes. Because--
Court: A little louder.
Juror: Yes. Because I said since we know the law and we know that you should-if you break the law and then for somebody to do that, allegedly do that, it's just hard to look past that, you know, the rules and you are breaking them. And it's just-you should be punished for that.
Defense: Well, in the punishment range-obviously, you can't make a decision on the punishment until you've heard more about the individual accused, the circumstances of the offense, but to sit on the jury, you have to be able to consider, as the Judge instructed, the full range, whether it's probation or a two-year sentence or a five-year sentence. Is there something about the nature of this charge that would prevent you from being able to consider that low range of probation or two years or five years?
Juror: Yeah. Because he was speaking to minors. It's hard to look past that if you are speaking to a minor.
Defense: Okay. I get that. So no matter, just based on this charge, no matter what the facts were, if you convicted him of that charge, you could not consider the low range of the punishment?
Juror: Essentially, I don't think I can.
Defense: I need a "yes" or "no."
Juror: No.
Defense: All right. Thank you.
Court: Anything further?
State: Briefly, Judge.
So considering might be, after you've heard the facts of the case, should I give probation. No. It's just a matter of having to consider it. We're not saying-committing you to giving it. It's just consider it, so that you have that option. Sometimes the situation like with mental health issues, you know, prior abuse of the defendant, or something that you might hear that makes you think, for whatever reason, I'm going to possibly consider probation, but I want to be open-
Juror: I'd be open to thinking about it, but, I mean . . .
After presenting Juror No. 53 with a hypothetical situation, the trial court asked her:
Court: So do you think there might be some hypothetical where you could consider the minimum punishment, there might be some case out there? You don't even have to think of the facts, but some case where you could consider it.
Juror: When you put it that way, yes.
Court: Yeah. Because you just haven't thought of all the possibilities because you're not old like me. All right. So
you promise me you will consider the entire range of punishment?
Juror: Yes.
Court: Okay.
At that point, Kapperman interjected, "She just said no. You're trying to persuade her, ma'am." The trial court retired the venire panel and continued questioning Juror No. 53 with respect to Kapperman's 5th Amendment challenge:
Court: Do you have a motion still?
Defense: I do. And I also had a Fifth Amendment issue, but she had indicated during-did not testify that some should consider deliberations despite the law-
Court: I'm going to instruct you if he doesn't testify, you can't consider that or hold it against him. Even if you want him to testify-everybody wants everybody to testify. We all want as much information as we can get. You know, sometimes I hear the trial and not a jury and I want all the information I can get. But if the defendant doesn't testify, I just take the information I do have and I make the decision from that and I don't speculate about why he didn't testify. That's between him and his lawyer.
Can you-I will instruct you in writing, if you are on the jury, that if the defendant doesn't testify you can't hold that against him. You can't consider it for any purpose. You just take the evidence you do have and make a decision from that. Can you promise me you will follow my instructions?
Juror: Yes.
Court: I can see you don't like my instructions.
Juror: Yeah.
Court: But I think you're committed to following the law. Aren't you?
Juror: Yes.
Court: Okay. You promise me, then, you will follow that instruction?
Juror: Uh-huh.
Court: Is that a "yes"?
Juror: Yes.
Court: All right. Anything else?
Defense: Do you feel like you have to agree with the Judge because she's telling you this?
Juror: No.
Defense: All right. I'm asking that because it's a lot different than the answer you gave me when I asked you the same question.
Juror: Well, when she presented like, I guess, situations.
Defense: Not the range of punishment question.
Juror: I understand. But like even earlier-I don't know. No.
Defense: All the Judge did was said here's the law and what I will be instructing you. And that's sort of the same question I asked you out there. What changed?
State: That doesn't matter-
Court: I'm sorry?
State: I said sometimes what matters is we agree to follow the law even if we don't like it, if we're instructed to do so.
Court: Yeah. I think she is committed to following any instructions I give her. And she just didn't quite understand how important that instruction was.
Defense: Did you not understand my question when I asked you?
Juror: I did. I just-I don't know.
Court: Is it just that you've had more time to think about it and hear what we had to say?
Juror: Yeah. Like we had lunch and then we have been walking back and forth and just . . .
Court: Okay. So you promise me you won't hold it against the defendant if he chooses not to testify?
Juror: Uh-huh, yes.
Court: Thank you. You're still on the panel. I appreciate your patience. Will you step into the other courtroom?
Juror: Sure.
Kapperman: Mr. Sampson, I need to speak to you, sir.
Defense: Let me finish this.
That was 53. I still have a challenge on the range of punishment, the Fifth Amendment. She was clear and unequivocal during general voir dire. I feel like even when she first brought up answering my questions, I feel like the Court's interrogation is leading her to, I'm under the impression, to give the answer that she thinks the Court wants to hear as opposed to her true feelings. So I move to strike her for Fifth Amendment and the range of punishment issue.
Court: I thought she was bright. I don't know what she does. What does she do?
Defense: I didn't say she wasn't bright.
Court: I think she understood. And it took her-these are new concepts to a lot of people and it takes them a while for them to mull over them and digest them and understand them.
Kapperman: This is rigged, man.
Court: I think she's qualified. Your objection is overruled.
Kapperman argues Juror No. 53 was not fully rehabilitated because she "was simply saying what the court wanted to hear." He also contends there is not "ample evidence of rehabilitation" because Juror No. 53's "rehabilitation was cut short."
The question presented is whether Kapperman, as the proponent of the challenge for cause, demonstrated Juror No. 53 understood the requirements of the law and could not overcome her prejudice well enough to follow the law. The record reflects that Juror No. 53 was instructed she could not consider Kapperman's failure to testify for any purpose, she understood the law, and she agreed she would follow the law even though she disagreed with it. The record further reflects that Juror No. 53 was instructed that if Kapperman was convicted, the law required her to consider the entire range of punishment, she understood the law, and she promised the trial court she would follow the law.
As with Juror No. 44, Juror No. 53's answers were vacillating or contradictory and under such circumstances, we must defer to the trial court's decision. See Hudson, 620 S.W.3d at 734 (holding appellate court should defer to trial court's findings when venire member's answers were vacillating or contradictory); Gardner, 306 S.W.3d at 295 (holding same). Based on the entire voir dire record, we hold the trial court did not clearly abuse its direction by denying Kapperman's challenge for cause for Juror No. 53.
Because the trial court did not clearly abuse its discretion by denying Kapperman's challenges for cause for Juror No. 44 or Juror No. 53, we overrule Kapperman's fourth issue.
Texas Government Code Section 74.056Kapperman's case was tried before the 182nd District Court of Harris County. At the time of trial, Judge Danilo Lacayo was the elected judge of the 184th District Court. He did not preside over the trial, however. Judge Jan Krocker, who had been assigned to serve as a visiting judge, presided over the trial instead. In his fifth issue, Kapperman argues that Texas Government Code Section 74.056(a), which authorizes a presiding judge to assign visiting judges to try cases and dispose of accumulated business, is unconstitutional because it violates Article V, Section 7 of the Texas Constitution as applied to him in this case.
A. Standard of Review
The constitutionality of a statute is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Smith v. State, No. 01-19-00442-CR, 2020 WL 6731656, at *4 (Tex. App.-Houston [1st Dist.] Nov. 17, 2020, pet. ref'd) (mem. op., not designated for publication). A litigant who raises an "as applied" challenge to the constitutionality of a statute concedes the statute's general constitutionality and instead "asserts that the statute is unconstitutional as applied to his particular facts and circumstances." State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011); Smith, 2020 WL 6731656, at *4. We presume that the statute is valid, and that the legislature has not acted unreasonably or arbitrarily. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Smith, 2020 WL 6731656, at *4. The individual challenging the statute has the burden to demonstrate its unconstitutionality. Rodriguez, 93 S.W.3d at 69; see Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. App. 2016).
B. Analysis
Texas Government Code Section 74.056(a) states:
A presiding judge from time to time shall assign the judges of the administrative region to hold special or regular terms of court in any county of the administrative region to try cases and dispose of accumulated business.
Tex. Gov't Code § 74.056. Judge Susan Brown, the presiding judge of the Eleventh Administrative Judicial Region, appointed Judge Jan Krocker to the 182nd Judicial District Court of Harris County, Texas, beginning on January 21, 2020 pursuant to Section 74.056. Judge Krocker's appointment was "for the primary purpose of hearing cases and disposing of any accumulated business requested by the court . . . ."
Kapperman contends Judge Brown's order violates Article V, Section 7 of the Texas Constitution which sets forth the requirements for judicial districts and district court judges. Article V, Section 7 states:
The State shall be divided into judicial districts, with each district having one or more Judges as may be provided by law or by this Constitution. Each district judge shall be elected by the qualified voters at a General Election and shall be a citizen of the United States and of this State, who is licensed to practice law in this State and has been a practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election, who has resided in the district in which he was elected for two (2) years next preceding his election, and who shall reside in his district during his term of office and hold his office for the period of four (4) years, and who shall receive for his services an annual salary to be fixed by the Legislature. The Court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law. He shall hold the regular terms of his Court at the County Seat of each County in his district in such manner as may be prescribed by law. The Legislature shall have power by General or Special Laws to make such provisions concerning the terms or sessions of each Court as it may deem necessary.
The Legislature shall also provide for the holding of District Court when the Judge thereof is absent, or is from any cause disabled or disqualified from presiding.
Tex. Const. art. V, § 7. Focusing on the last sentence, Kapperman argues that Article V, Section 7 "creates an absolute prohibition on the assignment of visiting judges outside of situations in which the elected district judge is absent, disabled, or disqualified." He thus contends that as applied to his case, Government Code Section 74.056(a) violates this constitutional provision because the statute permitted Judge Krocker to preside over his trial, even though there was nothing in the record indicating that Judge Danilo Lacayo, the elected judge of the 184th District Court, was absent, disabled, or disqualified at the time of Kapperman's trial.
Article V, Section 7 of the Texas Constitution was amended effective January 1, 2022. All references to Article V, Section 7 in this opinion are to the prior version which was in effect when Kapperman's trial occurred.
This Court rejected this same argument under very similar circumstances in Smith v. State, No. 01-19-00442-CR, 2020 WL 6731656 (Tex. App.-Houston [1st Dist.] Nov. 17, 2020, pet. ref'd) (mem. op., not designated for publication). See also Wiggins v. State, 622 S.W.3d 556, 560 (Tex. App.-Houston [14th Dist.] 2021, pet. ref'd) (following Smith's reasoning and holding Wiggins had not met his burden to show that Government Code section 74.056(a) was unconstitutional as applied).
We issued our opinion in Smith v. State, No. 01-19-00442-CR, 2020 WL 6731656 (Tex. App.-Houston [1st Dist.] Nov. 17, 2020, pet. ref'd) (mem. op., not designated for publication), after the briefs were filed in this appeal.
In Smith, a visiting judge who had been assigned to the court pursuant to Government Code Section 74.056(a) presided over Smith's case. Like Kapperman, Smith argued that Section 74.056(a) was unconstitutional because the statute, as applied, permitted the visiting judge to preside over his case, even though there was no evidence the elected judge was unable to preside over Smith's case due to her absence, disability, or disqualification. Smith, 2020 WL 6731656, at *5. After analyzing Article V, Section 7 and its interpretive commentary explaining the purpose of this constitutional provision, this Court held that:
Both the plain language of [Article V, Section 7's] text and its apparent purpose indicate that the provision was intended to ensure that when a district judge is absent, disabled, or disqualified, court can be held without significant delay or interruption. Nothing in the provision's text, or otherwise, indicates that the legislature lacks authority to enact legislation permitting eligible and qualified judges to be assigned to district courts even when the elected judge of the district court is not absent, disabled, or disqualified.Smith, 2020 WL 6731656, at *6 (citing Dean v. Dean, 214 S.W. 505, 507 (Tex. Civ. App.-1919, no writ)). Based on our interpretation of Article V, Section 7, we held that Smith had not met his burden to show that Government Code Section 74.056(a) was unconstitutional as applied.
The same is true here. Pursuant to Smith, we hold that Kapperman has not met his burden to show that Government Code Section 74.056(a) was unconstitutional as applied to him in his case.
We overrule Kapperman's fifth issue.
In his sixth and seventh issues, Kapperman argues the trial court erred by not sentencing him in open court and the court assessed the wrong consolidated court cost and total amount. Because we are reversing and remanding for a new trial on punishment, we need not address these issues on appeal.
Conclusion
We affirm the judgment of conviction, but reverse and remand the cause for a new trial on punishment only. See Tex. Code Crim. Proc. art. 44.29(b). Any pending motions are dismissed as moot.