Barnes v. State

DANIEL THOMAS BARNES, Appellant v. THE STATE OF TEXAS

NO. PD-1072-19

COURT OF CRIMINAL APPEALS OF TEXAS

February 10, 2021

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS GREGG COUNTY

NEWELL, J., delivered the opinion of the unanimous Court.

Daniel Thomas Barnes was convicted of burglary of a habitation in a bench trial. The question before us is whether the erroneous admission of two out-of-state misdemeanor convictions during the punishment phase of Appellant's trial was harmful. In light of the properly admitted punishment evidence—including victim impact evidence, evidence of Appellant's membership in the Aryan Brotherhood and evidence of his multiple felony convictions—we hold that it wasn't. Consequently, we reverse the judgment of the court of appeals.

Background

Appellant and his girlfriend, Cassidy Taylor, ransacked and destroyed a house owned by Michael Minshew. The two "beat in" the doors and windows and poured blue-colored oil throughout the house and back porch, ruining carpets, furniture, professional photographs, and valuables. They took electronic devices, including computers, iPads, iPhones, video games, and an Xbox; rifles; jewelry; a safe containing identification and other personal documents, including social security cards, birth certificates, and passports; clothing; a customized golf cart; personal effects; and items of sentimental value. These items were taken from every room in the house, including the bedrooms of Minshew's children.¹

Appellant was charged by indictment with a single count of burglary of a habitation. Appellant had multiple prior felony convictions, and the State filed notice of its intention to use one of them, out of Miller County, Missouri, to enhance Appellant's second-degree charge to a first-degreefelony.² The trial court found Appellant guilty.

During the punishment phase, the State presented evidence of the impact of the charged offense on one of the victims. Michael Minshew explained how the offense was not only a tremendous inconvenience to him but also how it was terrifying to his wife and children. Over the two-month period to repair and restore his home, Minshew had to fight daily to convince his wife and kids that it was safe to move back home. The damage caused by the oil alone had directly cost Minshew more than $10,000.

The State then presented evidence of Appellant's membership in the Aryan Brotherhood of Texas—a violent, dangerous, white-supremacist gang known for dope transactions and property crimes. Detective James Bray of the Longview Police Department specifically noted Appellant had gang-related tattoos on his body: a swastika, lightning bolts, the words "Aryan Pride", and the letters "G-F-T-B-D", believed to stand for "God forgives. The Brotherhood doesn't".

Additionally, the trial court admitted evidence of Appellant'sextensive criminal history: three felony forgery convictions in Missouri; a felony conviction for possession of a controlled substance in Illinois; a state-jail felony conviction for theft in Texas; a state-jail felony conviction for burglary of a building in Texas; a misdemeanor conviction for criminal trespass in Texas; and two misdemeanor convictions for theft and forgery in Tennessee. The trial court admitted evidence of these prior convictions over Appellant's objection. Appellant did not offer any punishment evidence.

During closing arguments, the State summarized Appellant's prior convictions and emphasized his membership in a gang associated with violence. Appellant's trial counsel argued that Appellant "obviously" had a substance abuse problem and needed rehab.³ Counsel then asked the court to find that drugs had contributed to the offense so that when Appellant became eligible for parole he could participate in the Substance Abuse Felony Punishment Facility (SAFPF) program. The State reemphasized Appellant's prior record and argued that he "was given every opportunity" to take responsibility for his drug issue but did not.

The trial court found the enhancement allegation regarding his priorfelony conviction in true. Prior to announcing Appellant's sentence, the trial court said that the case came down to Appellant's prior record and to the offense itself. The trial court expressed concern regarding Appellant's prior record and rehabilitation:

I do agree with Mr. Hagan that rehab would be beneficial for you, that you were probably on drugs when this offense was committed. The problem is I see that you've had chances before, and other states have given you chances and you still maintain you're on -- probably still on drugs.

The trial court subsequently sentenced Appellant to forty years' imprisonment, well within in the five-to-ninety-nine-year, or life, punishment range.

Appeal

On appeal, Appellant argued that the evidence was legally insufficient to link him to the alleged prior offenses, and, therefore, the trial court erred in admitting them into evidence at punishment. The court of appeals agreed only as to the Tennessee convictions (Exhibits 22 and 23), concluding that they were erroneously admitted because Appellant's only link to them was his relatively common name and a signature.⁴ The court then determined that this erroneous admission washarmful to Appellant, having had more than "a slight effect" on his sentence.⁵

According to the court of appeals, none of Appellant's prior offenses were violent in nature.⁶ Additionally, the trial court's prior-chances comments indicated that the trial court had considered the Tennessee convictions and that they may have affected Appellant's punishment.⁷ Because it could not be sure whether those two convictions influenced the trial court, the court of appeals affirmed the judgment of conviction, reversed the trial court's judgment on punishment, and remanded the cause for a new punishment hearing.⁸ We granted review to consider whether the admission of the prior convictions amounted to reversible error.

Standard of Review

The parties agree that in this case the erroneous admission of the extraneous offense evidence at issue is non-constitutional error.⁹Non-constitutional errors are harmful, and thus require reversal, only if they affect an appellant's substantial rights.¹⁰ A substantial right is affected only when the error had a substantial and injurious effect or influence in determining the verdict or punishment.¹¹ If an appellate court has a fair assurance from an examination of the record as a whole that the error did not influence the trial court, or had but a slight effect, it will not overturn the trial court's verdict.¹² In making this determination, the reviewing court considers everything in the record, including (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained error.¹³

Analysis

We granted review to determine solely whether the court of appealserred in holding that Appellant was harmed by the admission of the two Tennessee convictions (Exhibits 22 and 23).¹⁴ After examining the entire record, we have fair assurance that this admission did not have a substantial and injurious effect or influence.¹⁵ Consequently, we conclude that this non-constitutional error was harmless.

First, the nature of the evidence supporting the verdict weighs in favor of a harmless-error conclusion. Here, the nature of the evidence supporting the trial court's punishment verdict was strong. Even without the Tennessee convictions, Appellant had three felony forgery convictions; a felony possession conviction; a state-jail felony theft conviction, a misdemeanor criminal trespass conviction; and, most recently, a state-jail felony burglary conviction. These prior convictions spanned five years and three states.

Moreover, Appellant's other prior convictions established that he was unlikely to respond well to any rehabilitative effort. Appellant had previously received community supervision twice, in two different states;however, it was revoked both times. Indeed, the trial court was concerned about Appellant's previous attempts for rehabilitation; while it agreed with defense counsel that rehab would be beneficial, Appellant had already been given chances by other states but was still on drugs.

Second, the existence and degree of additional evidence indicating guilt also support a harmless-error conclusion. As the court of appeals observed, there was overwhelming evidence of Appellant's guilt. Minshew's neighbor witnessed Appellant at the scene of the crime with his girlfriend loading Minshew's property, which bore his fingerprints, into his car. Appellant was found in possession of the stolen property a short time after Minshew reported the burglary. And there was testimony that Appellant "wanted to make a deal" to protect his girlfriend.

Moreover, in addition to Appellant's prior convictions, there was other relevant evidence admitted at trial that justified Appellant's lengthy sentence independent of the admission of Appellant's Tennessee misdemeanor convictions. The evidence showed that Appellant had committed a particularly egregious burglary that not only effectively destroyed the residence but also inflicted severe financial and psychological harm on the victims in this case. Additionally, the evidence showed that Appellant is a member of a violent, white-supremacist gang described as a "danger to the community."

Third, the character of the alleged error and how it might be considered in connection with other evidence similarly supports a harmless-error conclusion. Here, the Tennessee convictions were not particularly inflammatory, especially when viewed in connection with the other evidence in the case. The two convictions did not establish anything about Appellant's character or propensity for criminal activity that had not already...