Opinion
NO. 03-16-00666-CR
04-25-2018
Jason Allen Strutz, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
NO. CR-15-0705 , THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING MEMORANDUM OPINION
A jury found appellant Jason Allen Strutz guilty of evading arrest with a motor vehicle and evading arrest with a previous evading conviction, see Tex. Penal Code § 38.04(a), (b)(1)(A), (2)(A), and assessed his punishment, enhanced pursuant to the habitual offender provisions of the Penal Code, at confinement for 43 years in the Texas Department of Criminal Justice and a $10,000 fine, see id. § 12.42(d), and confinement for 20 years in the Texas Department of Criminal Justice and a $10,000 fine, see id. §§ 12.425(b), 12.33. On appeal, appellant asserts that the trial court erred in denying his requested jury charge instruction, admitting testimony relating to his prior evading conviction, refusing to allow him to take a witness on voir dire, and admitting hearsay evidence during the punishment phase. Finding no reversible error, we affirm the trial court's judgments of conviction.
BACKGROUND
Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we provide only a general overview of the facts of the case here. We provide additional facts in the opinion as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the testimony and other evidence presented at trial.
The jury heard evidence that Charles Goodwin, a gas station attendant at H.E.B. supermarket, observed a brown car fueling at one of the pumps. The car started to leave without paying, so Goodwin exited the booth, approached the car, and asked the driver to pay for the gas. Goodwin said that the driver ignored him, and, as the car drove off, Goodwin banged on the roof of the car and yelled at the driver.
Corporal Sam Myers, a patrol officer with the San Marcos Police Department, testified that he was driving by the H.E.B. and observed a "commotion" at the gas pumps—a gas station attendant banging his hand on a gold-colored Plymouth Breeze and yelling at the driver. Corporal Myers said that he entered the parking lot as the car sped off. He followed the car out of the parking lot onto the street, activating his emergency lights. According to Corporal Myers, as he pursued, the car ran a stop sign while turning right at a nearby intersection. Corporal Myers continued pursuit and, after following for some distance, activated his siren. Corporal Myers testified that the pursuit "continued on" until the car slowed down, and the driver jumped out of the car while it was still moving. The driver then scaled a fence to a nearby apartment complex.
Casey Tennant, a Texas State University police officer, also testified, stating that he heard the call for aid over the police scanner and assisted in the search for the fleeing driver. He said that he went to the apartment complex and observed an individual matching the description of the driver grab a bike parked near a banister and ride toward him. Officer Tennant stated that he directed the person to come to him, which he did, and ordered the person off of the bike. According to Tennant, the rider complied with that order and the next order to place his hands behind his back. However, Officer Tennant said that when he tried to hand cuff the rider, the rider broke away and ran. Officer Tennant pursued the rider and tased him. Eventually, with the assistance of another San Marcos police officer, the rider was subdued and taken into custody.
After his apprehension, appellant was identified as the person driving the car and riding the bike. He was subsequently charged with two counts of evading arrest: evading arrest with a vehicle and evading arrest with a previous evading conviction.
DISCUSSION
Appellant raises four points of error. First, he complains about the trial court's refusal to include his requested spoliation instruction in the jury charge. Second, he asserts that the trial court erred by admitting testimony about a prior 2004 evading arrest/detention conviction because the arresting officer lacked personal knowledge. Third, appellant claims that the trial court erred in refusing to allow him to take the arresting officer on voir dire in order to determine whether the officer was qualified to testify about the finality of appellant's 2004 evading arrest/detention conviction. Finally, appellant contends that the trial court erred in admitting hearsay evidence related to his criminal history during the punishment phase.
Requested Jury Charge Instruction
No video of the police pursuit was available for the jury. Corporal Myers testified that his patrol car was equipped with a dashboard camera that automatically records upon activation of the patrol car's emergency lights. He explained that officers then upload such video recordings to a server from which officers can later review, but not alter or delete, such video evidence. In his testimony, the officer expressed his understanding that the videos then remained on the server for a certain time period, which he believed to be 180 days, unless "somebody wants to hold it longer." He indicated that he is not in charge of the retention of files he uploads to the server, stating that "[o]nce it's uploaded, I don't have anything to do with it." Corporal Myers further testified that he reviewed the video recording of the pursuit in this case after he uploaded it to the server. He was unaware, as he testified at trial, of whether the video recording had been copied to a disc prior to being purged from the server. Regarding the fact that the video was missing, the officer explained, "I don't have possession of it, I don't know where it went. I don't have access to it."
Chase Stapp, the San Marcos Chief of Police, testified about the department's policy regarding retention of digital evidence. He stated that the police server is set to retain videos for varying lengths of time depending on how the video is designated. The chief testified that, according to the system records, the missing video in this case was burned to a compact disc. However, Chief Stapp testified that he learned later that the recording burned to the disc did not contain the video of the pursuit but only a one-minute scene a short time later. The chief explained,
Corporal Myers did not testify about such a designation requirement as part of the uploading process of digital evidence.
For whatever reason, I think it was a technical error, that's sort of a conclusion I've drawn, but I can't say that for sure, but there's really no other explanation that only one of the two videos [in this case] ended up on that disk when we handed it over to the DA's office.Chief Stapp continued, explaining that the mistake was discovered only after it was too late to burn another disc:
[M]uch later, several months later, it appeared that for whatever reason [the video recording of the pursuit] didn't get burned properly on the disk or something along those lines and the DA's office made another request to our agency to produce it again. At that time, it had already been purged off of our server and wasn't available to be re-burned onto a disk.According to Chief Stapp, the missing video had apparently been purged earlier than the planned retention time due to a storage capacity shortage. The police chief testified that burning a CD copy generally avoids any problems that the purge would otherwise create, except in some instances, such as in this case, where if a CD needs replacing, the purged video is not available.
At trial, during the charge conference, appellant requested the following instruction in the court's jury charge:
The State of Texas, through the San Marcos Police Department, had a duty to retain evidence in this present case, specifically, the video of the stop of the Defendant. The San Marcos Police Department acknowledged the existence of this evidence yet destroyed it. You may consider that this evidence would have been unfavorable to the State of Texas on the issue of whether Jason Strutz committed the alleged offense.The trial court denied the request for the instruction. In his first point of error, appellant argues that the trial court's refusal to include the requested spoliation instruction in the charge violated his right to due course of law under the Texas Constitution.
We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (citing Almanza, 686 S.W.2d at 171). If the jury charge error has been properly preserved by an objection or request for instruction, as it was here, reversal is required if the appellant has suffered "some harm" from the error. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (citing Almanza, 686 S.W.2d at 171); see Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) ("If there was error and appellant objected to the error at trial, reversal is required if the error 'is calculated to injure the rights of the defendant,' which we have defined to mean that there is 'some harm.'" (quoting Almanza, 686 S.W.2d at 171)).
Appellant contends that the trial court's refusal to give his requested spoliation instruction was error because, according to appellant, the due course of law provision of the Texas Constitution provides greater protection than the federal due process clause regarding the State's loss or destruction of evidence or failure to preserve evidence in a criminal prosecution. Consequently, appellant maintains that a showing of negligence, rather than bad faith, suffices to show a constitutional violation, thus entitling him to the spoliation instruction. Specifically, appellant acknowledges that the State's loss, destruction, or failure to preserve "potentially useful evidence" in a criminal trial, does not violate federal due process unless a defendant shows "bad faith" on the part of the State in losing, destroying, or failing to preserve the evidence. See Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010); see also Illinois v. Fisher, 540 U.S. 544, 547-48 (2004). Nevertheless, he argues that the loss of the video in this case violated his right to due course of law under the Texas Constitution—without a showing of bad faith—and thus, he asserts, he was entitled to the requested spoliation instruction.
Under the Texas Due Course of Law Clause, "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Tex. Const. art. I, § 19. Under the federal Due Process Clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. XIV, § 1. The Texas Constitution uses the words "due course of the law of the land" instead of "due process of law," and the federal Due Process Clause does not specifically mention disfranchisement. Otherwise, the wording of the two provisions is substantially similar. The language of these two clauses is "nearly identical," and there is no meaningful distinction between "due course" and "due process." See University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).
To support his position, appellant relies on an opinion from the Waco Court of Appeals that held that Texas's Due Course of Law Clause provides greater protections than the federal Due Process Clause in this context and that once a reviewing court determines that the State breached its duty to preserve evidence, the court should consider the degree of negligence, the importance of the lost evidence, and the sufficiency of other evidence to prove the case to determine whether the deprivation of the evidence violates the constitutional right to due course of law. See Pena v. State, 226 S.W.3d 634, 653 (Tex. App.—Waco 2007), rev'd, 285 S.W.3d 459 (Tex. Crim. App. 2009). Appellant's reliance on Pena is misplaced. First, the opinion on which he relies was "completely effaced by the Texas Court of Criminal Appeals' procedural reversal." See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, pet. ref'd). Second, even if the opinion had not been "effaced" by being vacated on procedural grounds, the opinion stands alone against other Texas precedent. See id. All other Texas courts of appeals—including this Court—that have addressed this issue have held that the Due Course of Law Clause provides no greater protection than the Due Process Clause regarding the State's loss or destruction of evidence or failure to preserve evidence in a criminal prosecution. See Gelinas v. State, No. 08-09-00246-CR, 2015 WL 4760180, at *10 (Tex. App.—El Paso Aug. 12, 2015, no pet.) (mem. op., not designated for publication); State v. Fellows, 471 S.W.3d 555, 558 n.5 (Tex. App.—Corpus Christi 2015, pet. ref'd); Jones, 437 S.W.3d at 540; Higginbotham v. State, 416 S.W.3d 921, 925-26 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Martin v. State, No. 03-10-00420-CR, 2011 WL 3518050, at *7 (Tex. App.—Austin Aug. 10, 2011, no pet.) (mem. op., not designated for publication); Salazar v. State, 298 S.W.3d 273, 279 (Tex. App.—Fort Worth 2009, pet. ref'd); State v. Vasquez, 230 S.W.3d 744, 750 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Alvarado v. State, No. 07-06-0086-CR, 2006 WL 2860973, at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication); McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); State v. Rudd, 871 S.W.2d 530, 532-33 (Tex. App.—Dallas 1994, no pet.).
The Pena case has produced numerous opinions, but the one on which appellant relies was reversed on procedural preservation grounds and, therefore, is not authoritative.
Pena was charged with possession of 24 pounds of marijuana, and his defensive theory was that the substance was not marijuana. Pena v. State, 166 S.W.3d 274, 276-77 (Tex. App.—Waco 2005) (Pena I), vacated, 191 S.W.3d 133 (Tex. Crim. App. 2006) (Pena II). The trial court granted Pena's motion to independently examine the substance, but the substance had been destroyed. Id. at 277. Pena then moved to suppress a laboratory report confirming that the substance was in fact marijuana, and the trial court denied his motion. Id. The Waco Court of Appeals acknowledged the holding in Arizona v. Youngblood—that if destroyed evidence is merely "potentially useful" rather than "material and exculpatory," its destruction does not violate the federal Due Process Clause unless the accused shows that the State acted in bad faith. Id. at 277-78. However, the court went on to hold that Texas's Due Course of Law Clause provides greater protection than federal law, and concluded that the Texas Constitution requires the State to preserve all evidence that has "apparent exculpatory value," which includes exculpatory evidence and evidence that is only potentially useful to the defense. Id. at 281. The Court of Criminal Appeals vacated and remanded, holding that the court of appeals erred by reviewing unassigned error regarding the Due Course of Law Clause without first requesting additional briefing. Pena II, 191 S.W.3d at 134.
On remand, the court of appeals again held that the Due Course of Law Clause provides greater protection than the federal Due Process Clause. See Pena v. State, 226 S.W.3d 634, 651 (Tex. App.—Waco 2007) (Pena III), rev'd on other grounds, 285 S.W.3d 459, 465 (Tex. Crim. App. 2009) (Pena IV). The Court of Criminal Appeals reversed again, holding that Pena failed to preserve his claim that the due course of law provision grants more protection than the Due Process Clause. Pena IV, 285 S.W.3d at 465.
On remand, the court of appeals affirmed the trial court's judgment after addressing Pena's separate complaints that he was denied due process under Brady because the State failed to disclose the audio portion of the video from the arresting officer's in-car camera and that he suffered ineffective assistance of counsel. Pena v. State, No. 10-03-00109-CR, 2010 WL 2306699, at *1 (Tex. App.—Waco June 9, 2010, no pet.) (Pena V) (not designated for publication), rev'd on other grounds, 353 S.W.3d 797, 815 (Tex. Crim. App. 2011) (Pena VI). The Court of Criminal Appeals held the audio recording was both favorable and material under Brady and reversed and remanded for a new trial on that basis. But this holding was based on federal, not state, law.
Accordingly, none of the Pena opinions having precedential value support appellant's contention that Texas's Due Course of Law Clause affords him greater protection than federal law.
Appellant asks this Court to abandon our own precedent and ignore the holdings of the vast majority of the other Texas courts of appeals in favor of adopting the Waco Court of Appeals' opinion holding that the Texas Due Course of Law Clause affords greater protection than the federal Due Process Clause. We decline to do so. We agree with our previous holdings, see Martin, 2011 WL 3518050, at *7; State v. White, No. 03-07-00041-CR, 2010 WL 3271195, at *8 (Tex. App.—Austin Aug. 19, 2010, no pet.) (mem. op., not designated for publication), and the holdings of other Texas courts of appeals that the Due Course of Law Clause provides no greater protection than the Due Process Clause regarding the State's loss or destruction of or failure to preserve potentially useful evidence in a criminal prosecution. Therefore, for appellant to be entitled to his requested spoliation instruction premised on a due process or due course of law violation, the record had to support a finding that the State acted in bad faith in failing to preserve the video recording of the pursuit. It does not.
The Court of Criminal Appeals has not addressed whether our State's constitution provides greater protection than its federal counterpart in this context.
"[B]ad faith entails some sort of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining evidence that might be useful." Ex parte Napper, 322 S.W.3d at 238. There is no evidence in the record before us that Corporal Myers or the police failed to preserve or destroyed the video evidence in bad faith. Corporal Myers testified that he uploaded the video evidence in accordance with the department's standard procedure as he understood it. The evidence at trial showed that the missing video was purged from the police department server, either because of Corporal Myers's unknowing failure to properly designate the video or because the server ran out of storage space. Moreover, it was purged after it had been reportedly burned to a CD, although this preservation measure ultimately proved unsuccessful (for reasons unknown) so the CD did not contain the video recording of the pursuit. There was no indication of personal animus or a conscious disregard for appellant's rights. The circumstances here do not demonstrate bad faith. See, e.g., id. ("Bad faith cannot be established by showing simply that the analyst destroyed the evidence without thought, or did so because that was the common practice, or did so because the analyst believed unreasonably that he was following the proper procedure."). In fact, we note that appellant never argued that the State—either the district attorney's office or the police—acted in bad faith. At trial, he asserted that the negligence of Corporal Myers and the police department resulted in the purging of the video file. On appeal, appellant refers only to the "inexcusable negligence" of the police.
Because there was no demonstration of bad faith, the record does not support the conclusion that the failure to preserve the video recording of the pursuit in this case—which resulted in the inadvertent loss of evidence that might possibly have been helpful to appellant at trial, i.e., "potentially useful evidence"—was a violation of appellant's constitutional rights to due process or due course of law. Consequently, the trial court did not err in refusing to give the requested spoliation instruction, which essentially allowed for an implied finding of bad faith on the part of the State and police and suggested a due process or due course of law violation. Accordingly, we overrule appellant's first point of error.
Finding no error in the jury charge, we need not reach appellant's claim that he suffered "some harm." See Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013); Barrios v. State, 283 S.W.3d 348, 353 (Tex. Crim. App. 2009).
Testimony of Arresting Officer
In Count II of the indictment, appellant was charged with evading arrest with a previous evading arrest or detention conviction. See Tex. Penal Code § 38.04(a) (defining offense of evading arrest or detention), (b)(1)(A) (elevating offense to state jail felony if defendant has been previously convicted of evading arrest or detention). The indictment alleged that appellant had been previously convicted of "Evading Arrest/Detention" on October 20, 2004 in cause number 2004CR0862 in the County Court at Law #2 of Comal County, Texas. To prove this prior evading conviction, the State offered State's Exhibit 1, a certified copy of a judgment of conviction for evading arrest/detention, State's Exhibit 2, a photograph depicting an individual's back with the tattoo "STRUTZ" across the shoulder blades, State's Exhibit 3, a Comal County Jail book-in sheet, and the testimony of Lieutenant Steven Hanna, an officer with the New Braunfels Police Department, who completed the book-in sheet and testified about the arrest that he made of an individual named Jason Allen Strutz with the tattoo depicted in State's Exhibit 2 for several offenses, including evading detention or arrest.
The certified judgment, styled "The State of Texas vs. Jason Allen Strutz," was from the County Court of Law of Comal County, Texas, bearing cause number 2004CR8062, and reflected that the defendant was convicted of the offense of "EVADING ARREST DETENTION which occurred on 05/02/04."
In his testimony, Lieutenant Hanna detailed the encounter with appellant back in 2004 that resulted in appellant's arrest. Then, the following exchange occurred concerning the outcome of the arrest:
During his testimony, Lieutenant Hanna identified appellant in the courtroom as the individual he arrested in 2004, noting that "[h]e's older, but that's the same individual."
STATE: Okay. And do you know as to whether or not Mr. Strutz was finally convicted for this offense?At this point the prosecutor asked to approach the witness to discuss State's Exhibit 1, the previously admitted certified copy of the judgment of conviction for evading arrest/detention, and the following occurred:
HANNA: Yes, sir, he was.
DEFENSE: Your Honor, I'll object as to speculation unless he has personal knowledge.
COURT: Sustained.
He may testify based on personal knowledge.
STATE: Do you have personal knowledge as to whether Mr. Strutz was finally convicted of Evading Arrest or Detention?
HANNA: Yes, sir.
STATE: And was he?
HANNA: Yes, sir.
STATE: I'm showing you State's Exhibit No. 1. Do you identify any markings that indicate that this is the same final conviction from Mr. Strutz that you have personal knowledge of, (indicating)?
DEFENSE: Your Honor, may I take this witness on voir dire?The trial court overruled the objection.
COURT: Is there an objection?
DEFENSE: My objection would be -- my question is how a law enforcement officer is reviewing judgments -- how he would have personal knowledge of the contents of the judgment.
At the conclusion of the State's direct examination, the prosecutor revisited the issue of the finality of appellant's prior evading conviction:
STATE: And just so I cover this, how were you, personally -- do you have personal knowledge as to whether Mr. Strutz was finally convicted of this offense?The trial court sustained appellant's hearsay objection.
HANNA: How do I have personal knowledge?
STATE: Yes, sir.
HANNA: The Comal County has a Web site of where you can do a record search for offenses and arrests that have taken place and for cases that have proceeded.
DEFENSE: Your Honor, I'm gonna object if he's going to [go] into what he read off the Web site, that would be hearsay.
In his second point of error, appellant argues that the trial court erred in admitting Lieutenant Hanna's testimony regarding the finality of appellant's previous conviction for the 2004 evading arrest/detention because the officer "lacked sufficient personal knowledge of the outcome of Appellant's Evading Arrest charge to identify him as the same individual at trial." In his third point of error, appellant asserts that the trial court erred in denying his request to voir dire Lieutenant Hanna "in order to determine whether he was qualified to testify about the finality of Appellant's predicate 2004 conviction for Evading Arrest."
To preserve error for appellate review, a party must have presented a timely request, objection, or motion, stating the specific legal basis for the ruling desired if it is not apparent from the context. Tex. R. App. P. 33.1(a)(1); Gibson v. State, — S.W.3d —, No. PD-1043-16, 2017 WL 5166629, at *2 (Tex. Crim. App. Nov. 8, 2017). An objection is timely if made at the earliest opportunity or as soon as the grounds for the objection become apparent. See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); Sandoval v. State, 409 S.W.3d 259, 306 (Tex. App.—Austin 2013, no pet.). If a defendant fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely, and any claim of error is forfeited. Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); Sandoval, 409 S.W.3d at 306. In addition, a party must secure an adverse ruling. Tex. R. App. P. 33.1(a)(2); see Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim. App. 2006); see also Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) ("[A]ppellant failed to obtain an adverse ruling from which to base an appeal."). Further, the point of error raised on appeal must comport with the objection made at trial or error is not preserved. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) ("If a trial objection does not comport with arguments on appeal, error has not been preserved.").
Here, appellant did not object to Lieutenant Hanna's challenged testimony until after the question concerning the finality of appellant's final conviction had been asked and answered. Thus, appellant's objection was untimely. Moreover, the trial court sustained that objection; there was no adverse ruling. Further, appellant did not object at all when the follow-up questions were asked and answered. Appellant's later asserted hearsay objection was sustained. He did not object to Lieutenant Hanna's alleged lack of personal knowledge. Thus, the record reflects that appellant did not preserve any alleged error regarding his complaint that Lieutenant Hanna's testimony about the finality of appellant's prior evading arrest/detention conviction lacked sufficient personal knowledge. See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003) ("To preserve error, an objection must be timely, specific, pursued to an adverse ruling, and . . . contemporaneous—that is, made each time inadmissible evidence is offered."). Accordingly, we overrule appellant's second point of error.
Regarding appellant's request to voir dire Lieutenant Hanna concerning his "personal knowledge of the judgment of conviction," the request was likewise untimely as the record reflects that State's Exhibit 1, the judgment of conviction at issue, had previously been admitted. To the extent that appellant is complaining that the trial court erred in denying his request to voir dire Lieutenant Hanna about his personal knowledge about the finality of appellant's conviction, the record reflects that appellant's request was made after the initial question asking Hanna if he knew whether appellant had been finally convicted for the offense had been asked and answered as well as after the follow-up questions regarding Lieutenant Hanna's personal knowledge about the conviction and the finality of the conviction had been asked and answered—without objection. Thus, appellant's request was untimely. Because appellant's untimely request failed to preserve any alleged error, we overrule appellant's third point of error.
Hearsay Evidence
In his fourth point of error, appellant argues that the trial court erred in admitting hearsay testimony of the contents of an NCIC/TCIC report, which the State used to connect appellant to the prior convictions reflected in the State's punishment exhibits.
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Sandoval, 409 S.W.3d at 297. An abuse of discretion does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial court's ruling unless the determination "falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83 ("Before a reviewing court may reverse the trial court's decision, 'it must find the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree.'" (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008))). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93; Sandoval, 409 S.W.3d at 297.
The range of punishment in this case was enhanced, pursuant to the habitual offender provisions of the Penal Code, by allegations that appellant had two prior sequential felony convictions: a 2004 conviction for burglary of a habitation from Guadalupe County, Texas, and a 2008 conviction for burglary of a habitation from Gonzalez County, Texas. At the beginning of the punishment phase, appellant pled "not true" to these allegations, so the State assumed the burden of proof. The State's supporting evidence for proof of the enhancement allegations included two penitentiary packets or "pen packs," admitted as State's Exhibits P1 and P2. As further punishment evidence, the State offered a series of documentary exhibits, admitted as State's Exhibits P3 through P9, which were certified copies of judgments of conviction.
The State then recalled Corporal Myers to discuss how he obtained the criminal history of appellant when he arrested him for the instant evading arrest offenses. Corporal Myers first testified about the NCIC/TCIC criminal database system, which contains criminal histories for individuals and associated identifying information, such as "[n]ames, aliases, date's [sic] of birth, Social Security numbers, height, weight, gender, eye color, hair color, fingerprint files" as well as "[t]attoos, scars, any other kind of marks, maybe piercings, depending on what's been reported." The officer explained that he searched the database for appellant upon arresting him. He then testified that he used the identifying information in the NCIC/TCIC report to connect the report to appellant. The prosecutor then attempted to have Corporal Myers testify about the contents of the NCIC/TCIC report to corroborate that appellant was the person convicted in the judgments of conviction contained in State's Exhibits P1 through P9. Appellant objected on hearsay grounds. The trial court initially sustained the objection. However, after further discussion the following day, the trial court reversed its ruling, apparently concluding that using the hearsay evidence of the contents of the NCIC/TCIC report to establish identity constituted a hearsay exception. At the prosecutor's request, Corporal Myers then testified, over a running objection, that the information regarding each of the prior convictions contained in the State's punishment exhibits was reflected in the NCIC/TCIC report on appellant.
Though not explicitly reflected in the record, we take judicial notice of the fact that "NCIC" refers to the National Crime Information Center and "TCIC" refers to the Texas Crime Information Center.
With one exception: although Corporal Myers was shown State's Exhibit P8, a certified judgment of conviction for assault, he did not testify that he had information about that conviction based on the contents of the NCIC/TCIC report.
Assuming, arguendo, that the trial court abused its discretion in admitting the hearsay evidence about the contents of the NCIC/TCIC report, we turn to the question of harm.
The erroneous admission of evidence is non-constitutional error. Sandoval, 409 S.W.3d at 287; see Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Non-constitutional error requires reversal only if it affects the substantial rights of the accused. See Tex. R. App. P. 44.2(b); Barshaw, 342 S.W.3d at 93; Sandoval, 409 S.W.3d at 287. "'A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict.'" Thomas, 505 S.W.3d at 926 (Tex. Crim. App. 2016) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance the error did not influence the jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Sandoval, 409 S.W.3d at 287.
In assessing potential harm, our focus is not on whether the outcome of the trial was proper despite the error but on whether the error had a substantial or injurious effect or influence on the jury's verdict. Barshaw, 342 S.W.3d at 93-94; Sandoval, 409 S.W.3d at 287-88. We review the entire record to ascertain the effect or influence on the verdict of the wrongfully admitted evidence. Barshaw, 342 S.W.3d at 93; see Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010) (in conducting harm analysis "we examine the entire trial record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence"). We consider all the evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with other evidence in the case. Barshaw, 342 S.W.3d at 94; Sandoval, 409 S.W.3d at 288. We may also consider the jury instructions, the parties' theories of the case, closing arguments, voir dire, and whether the State emphasized the error. Barshaw, 342 S.W.3d at 94; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Sandoval, 409 S.W.3d at 288. The weight of evidence of the defendant's guilt is also relevant in conducting a harm analysis under Rule 44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); Motilla v. State, 78 S.W.3d 352, 356-57 (Tex. Crim. App. 2002).
In order "to establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction." Henry v. State, 509 S.W.3d 915, 918 (Tex. Crim. App. 2016) (quoting Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007)). "No specific document or mode of proof is required to prove these two elements." Id. Any type of evidence, documentary or testimonial, might suffice. Flowers, 220 S.W.3d at 922. The State may prove both of these elements in a number of ways, including documentary proof that contains sufficient information to establish both the existence of a prior conviction and the defendant's identity as the person convicted. Id. at 921-22. For example, the State may introduce documents, admissions or stipulations, or testimonial evidence sufficient to prove that the defendant was convicted of the offenses alleged in an enhancement allegation. Henry, 509 S.W.3d at 918; Wood v. State, 486 S.W.3d 583, 588 (Tex. Crim. App. 2016); Flowers, 220 S.W.3d at 921-22. The trier of fact must look at the totality of the evidence adduced when determining whether a prior conviction has been proven. See Henry, 509 S.W.3d at 919; Wood, 486 S.W.3d at 589.
Here, the State offered proof of appellant's prior convictions—four prior felony convictions, two of which were used to enhance the punishment range, and five misdemeanors—with punishment exhibits P1 through P9, which contain judgments of conviction reflecting the conviction of an individual named "Jason Allen Strutz" for various offenses. As appellant notes, even though the unique name on the judgments matched that of appellant, these certified judgments on their own were insufficient to prove the prior convictions. Henry, 509 S.W.3d at 919 (citing Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986); Elizalde v. State, 507 S.W.2d 749, 752 (Tex. Crim. App. 1974), overruled on other grounds by Bullard v. State, 533 S.W.2d 812 (Tex. Crim. App. 1976)). However, the record contains further evidence, other than the judgments themselves, that linked appellant to the prior convictions.
Three of the felony convictions were reflected by judgments of conviction contained in the certified pen packs, admitted as State's Exhibits P1 and P2, including the two convictions for burglary of a habitation used for enhancement as a habitual offender. State's Exhibits P1 and P2 were linked to appellant in several ways, exclusive of Corporal Myers's hearsay testimony concerning the contents of the NCIC/TCIC report. First, appellant's stepfather acknowledged that appellant was adjudicated and sent to prison for burglary of a habitation in 2004. Appellant's stepfather then agreed that when appellant was arrested in 2007 and convicted for burglary of habitation and possession of a controlled substance, appellant again failed to make the decision to change his criminal behavior, which his stepfather attributed to appellant's drug addiction. Second, State's Exhibits P1 and P2 each contained a photograph of the convicted person, labeled with the name "Jason Allen Strutz" in P1 and "Jason A. Strutz" in P2, along with a fingerprint card that contained physical descriptors of the "Jason Allen Strutz" and "Jason A. Strutz" convicted. See Littles v. State, 726 S.W.2d 26, 31 (Tex. Crim. App. 1987) (on reh'g) (noting "variety of cases" where evidence was held to be sufficient to prove that defendant was same person named in exhibit where exhibit contained photographs and detailed physical description of named person and defendant was present in court for fact finder to compare his appearance with person described in exhibit); Williams v. State, 946 S.W.2d 886, 895 (Tex. App.—Waco 1997, no pet.) (photographs or identifying information can provide independent evidence necessary to prove defendant was previously convicted as alleged). Furthermore, appellant's mother explicitly identified the person in the photographs of State's Exhibits P1 and P2 as her son. Finally, in his testimony appellant admitted that he was the convicted person in each of the judgments of conviction contained in State's Exhibits P1 and P2.
We note that the certified judgment of conviction in State's Exhibit P6 for possession of controlled substance is the same judgment of conviction for possession of controlled substance contained in State's Exhibit P2.
The judgment of conviction for the 2008 burglary of a habitation in State's Exhibit P1 and the judgment of conviction for the 2008 conviction for possession of a controlled substance in State's Exhibit P2 reflect offense dates in September of 2007.
Similarly, evidence other than Corporal Myers's testimony about the contents of the NCIC/TCIC report linked appellant to the fourth felony conviction, a conviction for possession of a controlled substance that was reflected in the certified judgment of conviction in State's Exhibit P7. First, when testifying about the availability of addiction treatment during appellant's prison stays and whether appellant obtained help, appellant's stepfather acknowledged that appellant was arrested and convicted of possession of a controlled substance in 2010. Further, during his testimony, appellant admitted that he was the person convicted for possession of a controlled substance in 2010 in the judgment in State's Exhibit P7. Thus, the four felony convictions—including the two used to enhance appellant's punishment to that of a habitual offender—were linked to appellant through evidence other than Corporal Myers's hearsay testimony about the contents of the NCIC/TCIC report.
As for the misdemeanor convictions, two of the misdemeanor judgments, admitted as State's Exhibits P4 and P5, relate to the other offenses that Lieutenant Hanna referenced in his testimony. The judgment in State's Exhibit P4 reflects that "Jason Allen Strutz" was convicted of the offense of failure to identify that occurred on May 2, 2004. The judgment in State's Exhibit P5 reflects that "Jason Allen Strutz" was convicted of the offense of resisting arrest that occurred on May 2, 2004. During the guilt-innocence phase, Lieutenant Hanna testified that as a result of his encounter with appellant on May 2, 2004, he arrested appellant for evading detention, resisting arrest, and failure to identify. He identified appellant in open court as the person he arrested. In addition, appellant's stepfather recalled during his testimony that appellant had been arrested and convicted of evading arrest, resisting arrest, and failure to identify in 2004. Thus, these two misdemeanor convictions were linked to appellant through evidence that did not include Corporal Myers's hearsay testimony about the contents of the NCIC/TCIC report.
The judgments of conviction for assault and terroristic threat, admitted as State's Exhibits P8 and P9, reflect convictions of "Jason Allen Strutz" for these offenses in 2012. In his testimony, appellant attempted to show that he had not been "in trouble" for seven or eight years, since his release from parole. However, on cross examination, he admitted that "[he'd] had some misdemeanors and some, you know arguments" and he further conceded that "2012 [was] not that long ago." Thus, appellant's own testimony links him to these prior convictions.
The remaining 2003 misdemeanor conviction for possession of marijuana, reflected in the judgment of conviction in State's Exhibit P3, was not explicitly addressed in any testimony. However, appellant's sister, mother, and stepfather all testified about appellant's drug use and addiction problem. In addition, appellant's stepfather indicated that appellant had smoked marijuana. Moreover, during his testimony, appellant implicitly acknowledged that the judgments of conviction admitted at trial, which would include the conviction for possession of marijuana, accurately reflected his criminal history.
During cross examination, the prosecutor asked appellant if he saw all the judgments admitted during trial. Appellant confirmed that he had. The prosecutor then asked appellant if he was "accepting full responsibility for [his] actions." Appellant answered affirmatively. This exchange could be construed as an implied admission by appellant that he was the "Jason Allen Strutz" convicted of the offenses reflected in all of the admitted judgments of conviction, which he explicitly acknowledged and did not dispute.
In sum, all of the judgments of conviction admitted at trial were linked to appellant through evidence independent of Corporal Myers's hearsay testimony about the contents of appellant's NCIC/TCIC report. Thus, on this record, we cannot conclude that the trial court's admission of the challenged hearsay evidence had "a substantial and injurious effect or influence" on the jury's verdict. See Thomas, 505 S.W.3d at 926. Therefore, any error the trial court may have committed in admitting this evidence was harmless. See Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) ("Whether or not the testimony complained of was admissible as an exception to the hearsay rule is irrelevant. If the fact to which the hearsay relates is sufficiently proved by other competent and unobjected to evidence, as in the instant case, the admission of the hearsay is properly deemed harmless and does not constitute reversible error."). Accordingly, we overrule appellant's fourth point of error.
CONCLUSION
Having overruled appellant's four points of error, we affirm the trial court's judgments of conviction.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Affirmed Filed: April 25, 2018 Do Not Publish