Chappell v. State

GARY LEE CHAPPELL, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-18-01306-CR

No. 05-18-01307-CR

No. 05-18-01308-CR

Court of Appeals Fifth District of Texas at Dallas

December 3, 2019

On Appeal from the 195th Judicial District Court Dallas County, Texas

Trial Court Cause No. F16-53354-N, F16-60423-N, F17-76639-N

MEMORANDUM OPINION

Before Justices Whitehill, Schenck, and Richter¹

Opinion by Justice Whitehill

A jury found appellant guilty of aggravated assault with a deadly weapon and assessed punishment, enhanced, at forty-eight years in prison.

Appellant argues that the evidence was insufficient to support his conviction. He also argues the trial court erred by (i) denying his motion for mistrial when the State's witness testified to hearsay; (ii) denying his objection to a record of jail calls; (iii) granting the State's motion in limine; (iv) overruling his objection to the State's jury argument; (v) overruling his objection to the State's expert and denying him the opportunity to cross-examine the witness; (vi) overruling his objection to four exhibits because they contained hearsay within hearsay and were inadmissibleunder the Confrontation Clause; (vi) sustaining the State's objection to his cross-examination of the State's fingerprint expert; and (vii) denying his punishment phase mistrial motion concerning the State's allegedly improper questioning of a probation officer.

In a cross-point, the State requests that we modify the judgment to reflect that appellant pled "not true" to the enhancement paragraphs and the jury found them true.

We conclude that (i) the victim's testimony about the assault supported the verdict and it was the jury's role to resolve any conflicts in the testimony and weigh the evidence; (ii) the trial court's instructions were sufficient to cure any error regarding hearsay and probation; (iii) there was sufficient authenticating evidence that appellant made the jail calls; (iv) appellant's limine motion preserved nothing for our review; (v) the State's jury argument about appellant's pre-arrest false identifications did not refer to his decision not to testify; (iv) appellant did not preserve his arguments regarding the admissibility of State's fingerprint expert testimony; (vii) appellant did not preserve a Confrontation Clause objection regarding the pen packets, which were properly authenticated and admitted; and (viii) the trial court could reasonably have concluded that the excluded cross-examination regarding finger-print comparison techniques was cumulative.

Notwithstanding the judgment, the record reflects that appellant pled "not true" to the enhancement paragraphs and the jury found them true.

For these reasons, we modify the trial court's judgment and as modified, affirm.

I. Background

One evening, appellant, Flowers, Flowers's girlfriend Brown, and appellant were sitting around with others in front of an apartment building drinking beer. At some point, Flowers overheard Brown tell appellant that Flowers wanted appellant out of the way so he could have Brown. Flowers approached appellant, denied what Brown said, and left for a friend's house.

Later, Flowers met appellant in a parking lot to talk to him about what Brown had said. That discussion led to appellant hitting Flowers with a gun, Flowers running away with appellant chasing and yelling at him, appellant twice shooting at Flowers during the ensuing chase.

Edward Calhoun, the lead detective, investigated the offense. Appellant was eventually arrested and charged with aggravated assault by threat with a deadly weapon.

The case was tried to a jury. Flowers testified about the offense and appellant's subsequent attempts to persuade him to file an affidavit of non-prosecution. The State's witnesses also included (i) the patrol officer who interviewed Flowers and called the paramedics, (ii) the crime-scene analyst who collected the shell casing at the scene, (iii) Detective Calhoun, (iv) the manager of the Dallas County inmate phone system, and (v) an investigator who obtained appellant's recorded telephone calls from jail.

The defense did not present witnesses. Instead, the defense focused on criticizing the investigation and arguing that Flowers's testimony was not credible.

The jury found appellant guilty as charged in the indictment. Although the State asked for a life sentence, the jury assessed punishment at forty-eight years in prison.

II. Analysis

A. First Issue: Is the evidence sufficient to support appellant's conviction?

Yes. Flowers's testimony alone supported the verdict and there was additional evidence against appellant.

1. Standard of Review and Applicable Law

We review the sufficiency of the evidence to support a conviction by viewing all of the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

This standard gives full play to the factfinder's responsibility to resolve testimonial conflicts, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). And the factfinder is the sole judge of the evidence's weight and credibility. See TEX. CODE CRIM. PROC. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder's. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in the verdict's favor and defer to that resolution. Id. at 448-49. The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).

A person commits assault if he intentionally or knowingly threatens another with imminent bodily injury. See TEX. PENAL CODE § 22.01(a)(2). The gist of assault by threat is that the defendant "acts with intent to cause a reasonable apprehension of imminent bodily injury." Fagan v. State, 362 S.W.3d 796, 798 (Tex. App.—Texarkana 2012, pet. ref'd). A person commits aggravated assault if he uses or exhibits a deadly weapon while committing the assault. See PENAL CODE § 22.02(a)(2) "A perception of 'some threat of imminent bodily injury,' coupled with the use of a deadly weapon, supports a conviction for aggravated assault." Olivas v. State, 203 S.W.3d 341, 350 (Tex. Crim. App. 2006).

2. Application of Law to Facts

Here, the indictment alleged that appellant intentionally and knowingly threatened Flowers with imminent bodily injury and used and exhibited a deadly weapon—a firearm—during the commission of the offense.

Flowers testified about meeting appellant in the parking lot to talk about what Brown had said. Appellant had a gun in his lap when Flowers arrived. When Flowers got up and started walking, appellant hit Flowers on his left ear with the gun. When appellant hit him again, Flowers started to run.

Flowers could hear appellant running behind him and "hollering." When Flowers had run about a half a block, appellant fired the gun in Flowers's direction. Flowers saw the gun and felt threatened.

Flowers hid, and came out after about a minute and a half. When he did so, the chase resumed, and Flowers heard another gunshot. Flowers hid again and called the police.

Officer Brandon Helms testified that he received a dispatch about an active shooter and arrived in the area within two to three minutes. He saw Flowers when he arrived.

A lot of blood was flowing from Flowers's ear, which was red and swollen. Photos of Flower's bloody ear were admitted into evidence and published to the jury. Helms said that he obtained Flowers's statement and called the paramedics. He also found a shell casing nearby.

Later that night, Flowers received a text message from Brown's phone that appeared to be from appellant. The message threatened that "this" was not over. The next day, Flowers went to the police station and told Detective Calhoun about the case and the text message.

Flowers also testified that, following appellant's arrest, appellant tried to persuade him to help get the aggravated assault charge dismissed. On one occasion, Brown approached, handed him her phone, and tried to get Flowers to talk to appellant. On another occasion, Flowers wasapproached by a man who offered Flowers money for dropping the charge against appellant. The man said that appellant had sent him. Flowers said he did not accept the offer because he did not want appellant to hurt anyone else.

Appellant relies on testimony from the officer who found the shell casing to argue that the casing could have been from another incident and the remaining physical evidence does nothing to incriminate appellant. He also argues that Flowers's testimony was not consistent with the statements he gave and Flowers's ear injury is not consistent with being hit with the butt of a handgun.

But it was the jury's role to resolve conflicts in the testimony and weigh the evidence. See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App 2018). When the record supports conflicting reasonable inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that resolution. Id. And if a victim's testimony is believed, that testimony alone is sufficient to support a guilty verdict. Padilla v. State, 254 S.W.3d 585, 590 (Tex. App.—Eastland 2008, pet. ref'd).

Considering the record as a whole, and applying the appropriate...