Opinion
NO. 09-11-00247-CR
01-04-2012
CHARLES EARL SAMPSON, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 11-03-03464 CR
MEMORANDUM OPINION
A jury convicted Charles Earl Sampson of the offense of burglary of a habitation, enhanced by prior felony convictions, and assessed punishment at life in prison. Sampson raises three issues on appeal. We conclude there was no error in the admission of an unadjudicated extraneous offense during the guilt/innocence phase of the trial, and error, if any, in admitting one of the prior convictions was harmless. We further hold there was no error in the sequencing of the prior convictions. The trial court's judgment is affirmed.
BACKGROUND
John Heimann, a Houston police officer and the son of Socorro Hermes, noticed a green truck in Socorro's driveway. He knew the truck did not belong to his mother, and he telephoned her. She was shopping, and indicated there was no one at her house. Heimann noticed the house had been broken into. When he went in, he saw Sampson walk out of the bedroom. Sampson was holding a pillowcase with "stuff in it. Heimann told Sampson to get down on the ground. Sampson said he entered the house because he saw someone breaking in. While Heimann was calling for backup, Sampson fled. Heimann found him in the woods nearby.
Deputy Suarez, who was called to the scene, testified the door of the residence was forced open. Suarez found a pillowcase containing jewelry and other items in the house. He found a flathead screwdriver in Sampson's pockets. Suarez explained that this type screwdriver is used for prying open objects like a sliding glass door mechanism.
Sampson testified that after he was paroled from prison, he lived with Jess Babbitt and his wife in the same neighborhood where Ms. Hermes lived. Sampson explained he had solicited work at Ms. Hermes's home on three prior occasions. He went there that day to ask about the possibility of working for her. He testified he entered her house because he saw a burglary in progress, and he wanted to check on Ms. Hermes. He testified he had no intent to commit theft and did not steal anything.
The prosecutor, like defense counsel, asked where Sampson went after he was released on parole from prison. Sampson explained that he lived with the Babbitts. The State then asked Sampson if the Babbitts had asked him to leave their home. Sampson stated he had not been asked to leave, but was told he should try to find his own place to live. He testified he moved to Waller.
Jess Babbitt testified he met Sampson through a prison ministry. Like Sampson, Babbitt explained that upon Sampson's release from prison, Sampson lived with the Babbitts. Sampson did odd jobs around the neighborhood and worked for an auto parts store. Defense counsel asked if Babbitt "kicked" Sampson out of the house. Babbitt responded, "No." The State then questioned Babbitt further and, over defendant's objection, obtained the trial court's permission to ask Babbitt about a purported theft at his home.
UNADJUDICATED OFFENSE
In issue one, Sampson argues the trial court erred in admitting evidence of an unadjudicated extraneous offense. The State asked Babbitt on cross-examination about a police report containing allegations that Sampson stole items from the Babbitt home. Sampson contends this evidence was offered to show he was a criminal. He argues that the State attempted to convert Babbitt, a defense fact witness, into a character witness for the purpose of impeaching him with specific acts of bad conduct. See Wheeler v. State, 67 S.W.3d 879, 883 (Tex. Crim. App. 2002).
The State argues Sampson did not preserve the evidentiary challenge for appeal. We disagree. Although appellant's trial objection may not have been as precise as it could have been, it is apparent from the record that the trial court was aware of Sampson's complaint and ruled on the objection. See Tex. R. App. P. 33.1(a); see generally Berry v. State, 233 S.W.3d 847, 857 (Tex. Crim. App. 2007).
A trial court's decision to admit evidence is reviewed on appeal under an abuse of discretion standard. See Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010). The reviewing court considers whether the ruling is within the zone of reasonable disagreement. See De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009). If the trial court was correct under any theory of law applicable to the case, the appellate court will uphold the trial court's ruling. Bowley, 310 S.W.3d at 434.
Appellant argues the general rule that a defendant is not to be tried for collateral crimes or "for being a criminal generally." See Segundo v. State, 270 S.W.3d 79, 87-88 (Tex. Crim. App. 2008). At the guilt-innocence phase of the trial, extraneous offenses are not admissible to prove that a defendant acted in conformity with his character by committing the charged offense. Id. Evidence of other crimes or extraneous misconduct may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b); Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). Rebuttal of a defensive theory is a permissible purpose for which evidence may be admitted under Rule 404(b). Id.; see also Powell v.State, 63 S.W.3d 435, 438-39 (Tex. Crim. App. 2001). Moreover, evidence offered by a party may be admitted when the other party "opens the door" to the otherwise inadmissible evidence. Williams, 301 S.W.3d at 687. Essentially, a party's attempt to leave a false impression with the jury effectively invites the response. Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009).
The defendant put his relationship with the Babbitts and the living arrangement at issue. The impression left upon the jury through Babbitt's initial testimony that he permitted Sampson to live with them and that he did not "kick" Sampson out of the Babbitts' home -- is that the Babbitts trusted Sampson enough to allow him to come live with them. The reason Sampson left was portrayed as innocuous. The defendant opened the door to the prosecutor's questions on whether Babbitt asked Sampson to leave and why. See generally Bass v. State, 270 S.W.3d 557, 558, 563 (Tex. Crim. App. 2008) (Defensive theory that pastor "was 'the real deal and the genuine article' and that teenager's allegations were pure fantasy" was subject to rebuttal by State's extraneous offense evidence of pastor's having sexually assaulted two other girls in his church office.); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (Extraneous offense evidence had non-character conformity relevance where it served to rebut appellant's defensive theory that he had no opportunity to commit the offense because he was never alone with the complainant.). The trial court's decision to admit the evidence was within the zone of reasonable disagreement. We overrule issue one.
ENHANCEMENT
In issue two, Sampson argues the State failed to adequately link him to one of the judgments of conviction used for enhancement purposes during the trial's punishment phase. To prove a defendant has a prior conviction, the State must establish that the prior conviction exists and that it is linked to the defendant. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific mode of proof is required to prove these elements. Id. The conviction must be proved beyond a reasonable doubt for the trier of fact to find an enhancement to be true. Id. at 923; see also Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986).
The consideration of non-constitutional error, if any, is addressed in rule 44.2(b) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). A non-constitutional error must be disregarded unless the defendant's substantial rights are affected. Barshaw, 342 S.W.3d at 93. A substantial right is affected under rule 44.2(b) when the error has a substantial and injurious effect or influence. Mason v. State, 322 S.W.3d 251, 255 (Tex. Crim. App. 2010). A criminal conviction should not be reversed for non-constitutional error if the reviewing court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Barshaw, 342 S.W.3d at 93.
Sampson challenges State's Exhibit 38, which contains an indictment and a judgment bearing the name Vernon E. Johnson (with no listed alias) and a birth date of June 14, 1964. This exhibit does not contain a fingerprint or a photograph. The State points to exhibits containing other judgments of conviction (some showing Charles Sampson with the alias of Vernon E. Johnson or variations of that name). The State references Exhibit 39, which contains fingerprint cards for a Charles Earl Sampson with a birth date of May 14, 1963, along with a booking photo of Charles E. Sampson, also known as Vernon Johnson, purportedly taken a day after the robbery arrest in Exhibit 38. The State argues this evidence allowed the jury to infer that Sampson was the same person (Vernon E. Johnson) arrested on September 17, 1981, booked on September 18, 1981, and convicted less than a month later. Notably, the Charles Sampson in Exhibit 39 has a different birth date from the Vernon E. Johnson in Exhibit 38.
Sampson argues he was harmed by the admission of the 1981 robbery conviction, because it was the only conviction admitted during the punishment phase that reflected a violent offense. Mark Wright, a crime scene investigator and latent print examiner for the Montgomery County Sheriff's Office, testified to five prior judgments, including the robbery conviction. He did not reference the use of any weapon in testifying to the robbery conviction. No other witness at the punishment hearing mentioned the robbery offense. The prosecutor read the enhancements (including the robbery conviction) to the jury, and in closing argument, the prosecutor stated that Sampson was a serial burglar and thief; the prosecutor did not mention a weapon. The record does not show an emphasis on the robbery conviction.
Sampson argues the life sentence is premised on a finding that Enhancement Paragraph D (robbery conviction) is true. Under section 12.42(d) of the Texas Penal Code, if at least two of the convictions are in proper sequence, Sampson's convictions are elevated to the range of punishment of life, or 25 years to 99 years. See Tex. Penal Code Ann. § 12.42(d) (West 2011). Four other convictions were admitted without objection. Two of those four enhancements permitted the jury to assess a life sentence.
Any error in the use of the robbery conviction was harmless. We overrule issue two.
SEQUENCE OF CONVICTIONS
In a supplemental brief, Sampson argues the evidence is legally insufficient to prove that the convictions were in proper sequence for enhancement purposes. Section 12.42(d), set out below, is the applicable statute for enhancement:
Except as provided by Subsection (c)(2), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.Tex. Penal Code Ann. § 12.42(d).1 Once the State provides prima facie evidence of a prior conviction, an appellate court presumes the conviction is final with a silent record regarding finality. See Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007). The 1 Subsection (c)(2) of section 12.42 is not applicable here. record demonstrates that Sampson had four prior felony convictions in addition to the robbery conviction. The jury answered "true" to Enhancement Paragraph A (the 1993 burglary-of-a-habitation conviction). In the 1993 conviction, the record reflects there was no probation and the appellate court's mandate issued in December 1995. The jury answered "true" to Enhancement Paragraph C, the August 23, 1984 conviction for burglary of a habitation. The record reflects there was no probation ordered, and the appellate court issued its mandate in June 1985. A conviction from which an appeal has been taken is final for the purposes of punishment enhancement when the court of appeals issues its mandate. See Beal v. State, 91 S.W.3d 794, 796 (Tex. Crim. App. 2002). The findings of true to Enhancement Paragraphs C and A meet the sequential requirement of section 12.42(d): the defendant has previously been finally convicted of two felony offenses (burglary of a habitation in 1984 and burglary of a habitation in 1993), and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final. We overrule this issue. The trial court's judgment is affirmed.
AFFIRMED.
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DAVID GAULTNEY
Justice
Do Not Publish Before Gaultney, Kreger, and Horton, JJ.