Williams v. State

FREDRICK EUGENE WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-18-00185-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: June 6, 2019

July 10, 2019

On Appeal from the 124th District Court Gregg County, Texas

Trial Court No. 47,613-B

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Burgess MEMORANDUM OPINION

After Frederick Eugene Williams was arrested for criminal trespass at a McDonald's restaurant in Longview, Officer David Cheatham transported him to the Longview Police Department (LPD). During the eighteen-minute transport, Williams threatened, inter alia, to blow Cheatham's head off, to beat him to death, and to put a bullet in his head. As a result, Williams was convicted by a jury, as indicted, for the offense of retaliation¹ and was sentenced to fifteen years' imprisonment.²

On appeal, Williams complains that (1) his arrest and detention were illegal, (2) his post-arrest threats were protected speech because of the arresting officers' abuse of authority, (3) insufficient evidence supports his conviction, (4) the trial court reversibly erred in admitting an in-car recording, and (5) the trial court's response to a jury note was an impermissible comment on the weight of the evidence. We find that (1) Williams failed to preserve his complaints (a) regarding his arrest and detention, (b) that his post-arrest threats were protected speech because of the officers' alleged abuse of authority, and (c) regarding the trial court's response to a jury note; (2) sufficient evidence supports his conviction; and (3) the trial court did not abuse its discretion by admitting the recording. However, we modify the trial court's nunc pro tunc judgment to reflect the correct district court, and we affirm the trial court's judgment, as modified.

I. Preservation of Error

Generally, to preserve a complaint for appellate review, the complaining party must have made a timely request, objection, or motion in the trial court that "stated the grounds for the ruling that the complaining party sought . . . with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context," and obtain a ruling or a refusal to rule on the complaint by the trial court. TEX. R. APP. P. 33.1(a). Almost all error, even constitutional error, may be forfeited if not asserted in the trial court. See Reyna v. State, 168 S.W.3d 173, 177-79 (Tex. Crim. App. 2005).

Although Williams has stated his first and second issues separately, they are dependent on each other, and he combines his argument concerning them. As we understand his argument, Williams asserts that Cheatham had no probable cause to arrest him for criminal trespass, and therefore his initial arrest was unlawful. Since there was no probable cause to arrest him, he argues, Cheatham abused his authority when he forcibly confined and restrained Williams. Consequently, he concludes, the threats that he made against Cheatham while he was restrained and under arrest were protected speech since they were a protest against the unlawful use of authority.

However, Williams did not preserve these complaints by presenting them to the trial court. He did not challenge the legality of his initial arrest or Cheatham's abuse of authority in a motion to suppress, and he made no objection to the admission of testimony or other evidence of his threats against Cheatham based on the illegality of his arrest or Cheatham's abuse of authority. SeeDavidson v. State, 422 S.W.3d 750, 754 (Tex. App.—Texarkana 2013, pet. ref'd).³ Williams also never asserted that the threats were protected speech as a protest against an unlawful arrest and abuse of authority. Consequently, Williams has not preserved these complaints for our review. See TEX. R. APP. P. 33.1(a). We overrule Williams' first and second issues.

Williams also complains in his fifth and sixth issues that that the trial court committed reversible error when it made an impermissible comment on the weight of the evidence in its response to a jury note. During jury deliberations, the jury sent a note requesting another verdict form. After a discussion with the State and Williams, the trial court proposed to respond, "The verdict form you have is the official verdict. Please make any corrections you deem necessary to make sure the verdict form reflects your correct verdict." When asked if there was any objection, Williams responded, "That sounds good." Thus, at trial, Williams agreed with the trial court's proposed response. When a party agrees with a trial court's proposed response to a jury note, it procedurally defaults any claimed error in the trial court's answer to the jury note. See Word v. State, 206 S.W.3d 646, 652 (Tex. Crim. App. 2006); Green v. State, 912 S.W.2d 189, 193 (Tex. Crim. App. 1995). Therefore, Williams has presented nothing for our review. We overrule Williams' fifth and sixth issues.

II. Sufficient Evidence Supports the Jury's Verdict

In his third issue, Williams complains that the jury's verdict was not supported by legally sufficient evidence. In evaluating legal sufficiency, we review all the evidence in the light mostfavorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). Our legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

In drawing reasonable inferences, the jury "may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life." Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. struck) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)). Further, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and it may "believe all of a witnesses' testimony, portions of it, or none of it." Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). We give "almost complete deference to a jury's decision when that decision is based on an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

In our review, we consider "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and commondesign to do the prohibited act." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). It is not required that each fact "point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Id. Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). Further, "we must consider all the evidence admitted at trial, even if that evidence was improperly admitted." Fowler v. State, 517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev'd on other grounds by 544 S.W.3d 844 (Tex. Crim. App. 2018) (citing Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004)).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. Under its indictment and the applicable statute, the State was required to prove beyond a reasonable doubt that Williams (1) intentionally or knowingly (2) threatened Cheatham (3) by an unlawful act, to wit, capital murder, murder, aggravated assault, or assault against a peace officer, (4) in retaliation for or on account of (4) the service or status of Cheatham,(5) who Williams knew was a public servant, namely a peace officer employed by the City of Longview. See TEX. PENAL CODE ANN. § 36.06(a)(1)(A).

In his argument, Williams does not challenge the sufficiency of the evidence to support the jury's implied finding that the State proved each of the elements required by Section 36.06 beyond a reasonable doubt.⁴ Rather, Williams relies on his first and second issues to argue that his threats were justified because of his unlawful arrest and Cheatham's alleged abuse of his authority.

The Texas Penal Code states,

The threat of force is justified when the use of force is justified by this chapter. For the purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

TEX. PENAL CODE ANN. § 9.04. The Texas Court of Criminal Appeals has held, "...