Opinion
No. 05-14-01112-CR
06-24-2016
CURTIS DORELLE WEEMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4 Collin County, Texas
Trial Court Cause No. 004-85972-2013
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and Richter
Opinion by Justice Richter
The Hon. Martin Richter, Justice, Court of Appeals. Fifth District of Texas at Dallas, Retired, sitting by assignment.
A jury found appellant Curtis Dorelle Weems guilty of harassment for sending threatening text messages to the complainant, Shon Braden. The jury assessed appellant's punishment at ninety days' confinement and a fine of $250. In five issues, appellant contends: he was denied effective assistance of counsel; the trial court incorrectly instructed the jury on intent; the jury assessed punishment when the trial court should have done so; the trial court erroneously excluded defensive evidence; and the evidence was insufficient to establish that appellant was the person who sent the harassing text messages. We affirm the trial court's judgment.
Background
Braden had prepared an income tax return for appellant's wife, Yolanda Weems (Yolanda). Yolanda expected a $6000 refund from that return, but she did not receive any refund. Appellant knocked on Braden's door at approximately midnight on June 7, 2013. Braden's husband opened the door, but shut and locked it when appellant reached to his side as if reaching for a gun. Braden and her husband watched appellant take pictures of their vehicle in the parking lot. Within a short time, Braden received a series of threatening and insulting text messages. Some of the messages referenced the tax return; one referred to Braden's status as a transgendered woman; another referred to people who had guns and were "after" Braden. The police traced the messages to appellant's phone, although both he and Yolanda denied sending the messages.
Braden testified she learned after filing the return that Yolanda had declared bankruptcy and her wages were being garnished, so there would be no refund. --------
Appellant was charged with harassment. He represented himself at trial and was found guilty by the jury. The jury assessed his punishment at 90 days' confinement and a $250 fine. This appeal followed.
The Dangers of Self-Representation
In his first issue, appellant argues he did not knowingly and intelligently waive his right to counsel and was, therefore, denied effective assistance of counsel. The Sixth Amendment guarantees the fundamental right to counsel in a criminal trial. Williams v. State, 252 S.W.3d 353, 355 (Tex. Crim. App. 2008). The same amendment necessarily implies the right to self-representation, i.e. to make one's own defense personally. Faretta v. California, 422 U.S. 806, 819-20 (1975). When a defendant chooses to represent himself, "he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Id. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). Moreover, to determine whether the waiver of counsel is intelligent and voluntary, the record should indicate that the court inquired into the defendant's background, age, education, and experience. Lanett v. State, 750 S.W.2d 302, 304 (Tex. App.—Dallas 1988, writ denied).
In this case, appellant argues he was not sufficiently warned of the risks of self-representation. However, the record establishes that appellant received, reviewed, and signed a detailed two-page document titled "Dangers and Disadvantages of Self-Representation." The document advised appellant that the judge and prosecutor were not his lawyers and could not offer him legal advice. The document advised appellant of his right to a jury trial and right to an attorney's advice regarding whether to waive a jury trial. The document informed appellant of the benefits of counsel's evaluation of: (1) the charge against appellant; (2) the strengths and weaknesses of the State's case, appellant's evidence, and legal defenses; and (3) the advantages or consequences of a plea. The document further described how appellant's lack of knowledge of the rules of evidence and procedure could cause problems in admitting evidence or excluding unfavorable evidence. The document stated that appellant could hire his own attorney or, if appellant was indigent, that the trial court could appoint counsel. After the admonishments, the document set out a statement substantially similar to the waiver of counsel form found in the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 1.051(g) (West Supp. 2015). The document then propounded questions to appellant regarding his age, education, and whether he had read the entire document himself. Appellant answered the questions, writing that he was thirty-seven years old and had completed the twelfth grade. Appellant also affirmed that he had read the document himself.
Appellant signed the document on May 23, 2014. Although no record was made of the proceedings, the court's docket sheet states that appellant was present on that day in response to the court's Notice to Appear. We infer that appellant appeared without counsel and was given the "Dangers and Disadvantages of Self-Representation" at that time. See Stokes v. State, 277 S.W.3d 20, 24 (Tex. Crim. App. 2009) (docket sheet is a reliable indicator of the trial court's decisions and the business of the court). We conclude the written warnings were detailed and complete. We further conclude that appellant's answers to the questions posed at the end of that document indicate that he read the document carefully. Knowing appellant was before the trial court, we can assume the judge was satisfied that appellant understood the warnings. Further, the record establishes that appellant had worked as a paralegal; he conducted himself ably at trial when questioning witnesses and addressing both the court and the jury. Under the totality of these circumstances, we can conclude appellant received adequate admonishments about the perils of self-representation and, therefore, was not denied effective assistance of counsel.
We overrule appellant's first issue.
Sufficient Evidence of Identity
In his fifth issue, appellant argues there is insufficient evidence to establish that he was the person who sent the text messages forming the basis of the harassment charge. We review this challenge by examining the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury exclusively determines the credibility of the witnesses and the weight to be given their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Our duty is to ensure that the evidence presented supports the jury's verdict and that the State has presented a legally sufficient case of the offense charged. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Appellant acknowledges there was evidence the texts were sent from a phone registered to Curtis Weems. But he contends the phone could have belonged to a different man named Curtis Weems. And he argues that if the phone did belong to him, the evidence does not show he had exclusive control of it, so someone else could have sent the threatening messages. However, the texts began to arrive, one after the other, shortly after appellant left Braden's home. Moreover, one message referred to Braden's "lik[ing] to take people['s] tax refunds," and—according to appellant himself—a missing tax refund was precisely what had brought him to Braden's home that evening. Another message contained references to a fraternity to which both Braden's husband and appellant belonged. A rational trier of fact could certainly have found that appellant sent the text messages from his phone. See Jackson, 443 U.S. at 319. We conclude ample evidence supports that finding.
We overrule appellant's fifth issue.
Charge Error
In his second issue, appellant contends the trial court erred by using the incorrect definition of intent in the charge to the jury. The offense of harassment requires commission of the prohibited conduct "with an intent to harass, annoy, alarm, abuse, torment, or embarrass another." TEX. PENAL CODE ANN. § 42.07(a) (West Supp. 2015). The trial court defined that mental state in its charge by stating: "A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct." Appellant contends that the trial court erred in defining intent with reference to the nature of appellant's conduct rather than the result of his conduct.
There are three "conduct elements" that can be involved in an offense: (1) the nature of the conduct, (2) the result of the conduct, and (3) the circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03 (West 2011); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). A trial court errs by failing to limit the definition of the culpable mental state to the conduct element or elements of the offense to which they apply. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). The State concedes that harassment is a result-oriented offense. We agree. See Blount v. State, 961 S.W.2d 282, 284 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd). The trial court erred when it failed to limit its definition of intent to the result of appellant's conduct. See Cook, 884 S.W.2d at 491.
The State contends the error was harmless. Appellant did not object to the definition at trial; accordingly, any error in that definition is reversible only if appellant was egregiously harmed such that he was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). To determine the actual degree of harm we look to the entire record, the jury charge, and the state of the evidence as a whole, taking into account the contested issues and the weight of probative evidence. Id. We have reviewed the entire record of this case and—as we discussed above—concluded the evidence was sufficient to support the jury's finding that appellant was the person who sent the harassing text messages to Braden. Nothing in our review of the evidence suggests appellant was harmed by the error in the definition. Intent was a contested issue at trial, but it was always raised in terms of whether appellant intended to harass Braden by knocking on her door at midnight and sending offensive texts, or whether he was merely soliciting information about his tax refund. Stated differently, all the evidence of intent was directed toward the result of appellant's conduct.
We reject appellant's argument that counsel for the State mischaracterized the definition of intent during voir dire. At one point, counsel extended his hand to a female venireperson asking "[H]ow are you doing today?" Then he asked her what he had intended to do by those actions. She responded, "Greet me and shake my hand." Thus, counsel correctly established that his conduct was performed for an intended purpose or result. In this hand-shake example and in a story counsel told about his brother throwing him a can of "Icy Hot" instead of sunscreen, counsel was emphasizing that the jurors could infer intent from conduct, a settled legal principle. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982) ("Intent can be inferred from the acts, words, and conduct of the accused.").
Moreover, the State did not emphasize the improper "nature of conduct" language from the charge in its closing argument. Instead, the prosecutor focused on appellant's argument for why he contacted appellant. Appellant argued that he needed to get evidence from Braden to obtain his tax refund. The prosecutor responded that text messages like those sent in this case would cause offense and are never justified. Both parties focused properly on the result of appellant's conduct.
Finally, we look to the application portion of the jury charge. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995) ("In assessing harm resulting from the inclusion of improper conduct elements in the definitions of culpable mental states, we 'may consider the degree, if any, to which the culpable mental states were limited by the application portions of the jury charge.'" (quoting Cook, 884 S.W.2d at 492 n.6)). The charge contained this paragraph applying the law to the facts of appellant's case:
Now, if you find and believe from the evidence beyond a reasonable doubt that on or about June 7, 2013, in Collin County, Texas, Curtis Dorelle Weems did then and there with intent to harass, annoy, alarm, abuse, torment or embarrass Shon Braden, send repeated electronic communications to Shon Braden in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another, to-wit: by sending threatening text messages, then you will find the defendant guilty as charged.This paragraph pointed the jury to the proper conduct element involved in a result-oriented offense. Specifically, the jurors were instructed that to find the defendant guilty of harassment, they must find that appellant sent the threatening text messages with the intent to harass Braden (or to annoy, alarm, abuse, torment or embarrass her). Consequently, we conclude appellant was not denied a fair trial; he did not suffer egregious harm due to the erroneous general definition in the charge. See id.
We overrule appellant's second issue.
Assessment of Punishment by Jury
In his third issue, appellant contends the trial court erred by permitting the jury to assess punishment when appellant did not make an election for the jury to make that assessment. Appellant correctly states that the Texas Code of Criminal Procedure assigns responsibility for assessing punishment to the trial judge unless the defendant elects in writing before the commencement of the voir dire examination of the jury panel to have the jury assess his punishment instead. TEX. CODE CRIM. PROC. art. 37.07(b) (West Supp. 2014).
The record indicates that after the jury delivered its verdict of appellant's guilt, the trial court prepared for the punishment phase as follows:
There will be a need for a punishment hearing. I'm going to stand this in recess for five minutes and allow the parties to get their witnesses ready for punishment hearing. Please take the jury.The jury then left the courtroom, but re-entered at the beginning of the punishment proceedings. Immediately after the jury returned, the trial court asked the State and appellant if each was ready: both said they were. Appellant could have objected to the jury hearing punishment evidence at any point during this transition from guilt-innocence to punishment, but he did not. We conclude appellant has preserved nothing for our review on this issue. See TEX. R. APP. P. 33.1(a) (to preserve complaint for appellate review, timely request, objection, or motion must be made and ruled on by trial court); see also Dickson v. State, 492 S.W.2d 267, 270-71 (Tex. Crim. App. 1973) (there was nothing inherently detrimental in jury assessing punishment which defendant could not waive by failing to object to such procedure); Lopez v. State, No. 05-12-01531-CR, 2014 WL 296001, at *7 (Tex. App.—Dallas Jan. 27, 2014, pet. ref'd) (not designated for publication).
We overrule appellant's third issue.
Exclusion of Evidence
In his fourth issue, appellant contends the trial court wrongfully excluded testimony from his expert witness, Kendra Burnett. Burnett is a tax preparer whom appellant called to testify concerning (a) certain forms necessary to be certified to prepare and file returns for others, (b) certain practices involving payment of preparers and refunds to taxpayers, and (c) the legality of Braden's preparation practice. The trial court excluded Burnett's testimony as irrelevant to issues at trial. Appellant argues this evidence would have established that he lacked the intent to harass.
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). In this case, appellant argues that Burnett's testimony could have shown the missing refund was Braden's fault, and that fact "would give the Appellant a legitimate reason for aggressively trying to contact Shon Braden other than an intent to harass." The suggestion here is that having what appellant calls a "legitimate grievance" against Braden was a justification for sending a series of offensive text messages to her in the middle of the night. Appellant cites no authority for such a defense, and we are not aware of any. We conclude the trial court did not abuse its discretion when it excluded Burnett's proposed testimony as irrelevant to any issue at trial.
We overrule appellant's fourth issue.
Conclusion
We have decided each of appellant's issues against him. Accordingly, we affirm the trial court's judgment.
/Martin Richter/
MARTIN RICHTER
JUSTICE, ASSIGNED Do Not Publish
TEX. R. APP. P. 47 141112F.U05
JUDGMENT
On Appeal from the County Court at Law No. 4, Collin County, Texas
Trial Court Cause No. 004-85972-2013.
Opinion delivered by Justice Richter, Justices Fillmore and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 24th day of June, 2016.