James Harley Stacy v. State ( 2018 )


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  •                               Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-16-00684-CR
    James Harley STACY,
    Appellant
    v.
    The STATE of Texas,
    Appellee
    From the 437th Judicial District Court, Bexar County, Texas
    Trial Court No. 2015CR7238A
    Honorable Lori I. Valenzuela, Judge Presiding
    Opinion by:      Rebeca C. Martinez, Justice
    Sitting:         Karen Angelini, Justice
    Rebeca C. Martinez, Justice
    Patricia O. Alvarez, Justice
    Delivered and Filed: January 31, 2018
    AFFIRMED
    James Harley Stacy was convicted by a jury of aggravated kidnapping and sentenced by
    the trial court to forty-five years’ imprisonment. On appeal, Stacy contends the trial court erred in
    denying his motion to set aside the indictment and in submitting an erroneous jury charge because
    the indictment and the jury charge combined multiple manner and means of committing the offense
    of aggravated kidnapping as well as multiple aggravating circumstances. Stacy also contends the
    trial court abused its discretion in admitting into evidence testimony regarding two of his tattoos
    and his explanation of the tattoos’ meanings. We affirm the trial court’s judgment.
    04-16-00684-CR
    BACKGROUND
    The complainant, an admitted heroin addict, was arrested for possession of a controlled
    substance. After she was released from jail, she met Natalie Hatcher and Stacy, Natalie’s
    boyfriend/fiancé. Through the course of the next several days, the complainant, Hatcher, and Stacy
    used drugs together, staying at various locations and using the complainant’s vehicle for
    transportation. 1
    At some point, the complainant returned home without her cell phone, and the
    complainant’s mother gave the complainant her cell phone to take with her. Later that day, the
    complainant, Hatcher, and Stacy were kicked out of the hotel where they were staying and drove
    approximately one and a half hours to Stacy’s father’s house. During that trip, the complainant,
    who was blindfolded in the rear passenger seat, hit Stacy, who was driving, in the back of the head
    because her drug-induced delusions made her believe Stacy had raped her girlfriend and taken her
    to Laredo. Hatcher climbed from the front passenger seat to the rear seat and physically restrained
    the complainant with cords and handcuffs. Hatcher also hit the complainant and banged her head
    against the window in an effort to keep her quiet. At one point during the trip, the complainant
    and Hatcher both testified Stacy sexually assaulted the complainant while she was restrained and
    punched her in the mouth when she screamed, breaking her jaw and leaving her two front teeth
    dangling in her mouth. On cross-examination, however, Hatcher admitted she stated she was the
    person who beat up the complainant in a letter and phone call to her mother and also wrote letters
    stating she did not want Stacy to go to prison for something he did not do.
    Sometime after the complainant was assaulted, Hatcher agreed to meet the complainant’s
    mother and return her cell phone. The complainant’s parents requested the assistance of a San
    1
    The complainant’s girlfriend was also present for the first few days.
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    04-16-00684-CR
    Antonio police officer who was a friend. The complainant’s parents met Hatcher in a parking lot,
    and she returned the cell phone but left before the officer arrived. When the officer arrived, he
    suggested the complainant’s parents follow him in their car to various nearby hotels which were
    known to be locations where drug users would stay. After they had driven through various
    locations and were discussing their next course of action, the complainant’s mother spotted the
    complainant’s car. Stacy was driving the car, and the complainant was in the front passenger seat
    visibly high on drugs. The officer executed a traffic stop and began questioning Stacy. When the
    complainant’s mother approached her daughter and saw her injuries, the complainant told her
    mother that Stacy had raped her.
    Stacy and Hatcher were both arrested and charged with aggravated kidnapping. Hatcher
    subsequently agreed to testify against Stacy as part of a plea bargain agreement which reduced the
    charge against her to kidnapping with the possibility of shock probation in six months.
    After hearing all the evidence, the jury found Stacy guilty of aggravated kidnapping, and
    the trial court sentenced him to forty-five years’ imprisonment. Stacy appeals.
    INDICTMENT AND JURY CHARGE
    Stacy filed a pre-trial motion to set aside the indictment, asserting the indictment combined,
    in a single count and paragraph, multiple manner and means of committing the offense of
    aggravated kidnapping, as well as multiple aggravating circumstances. Stacy also objected to the
    jury charge on the same basis, asserting a general verdict of guilty would result in uncertainty
    regarding whether the jury unanimously found he had committed the offense of kidnapping with
    the intent to sexually violate or abuse the complainant. Specifically, Stacy asserts the indictment
    and jury charge allowed him to be convicted if he committed the offense of kidnapping aggravated
    by one of the following circumstances: (1) inflicting bodily injury on the complainant; (2) violating
    or abusing the complainant sexually; or (3) using or exhibiting a deadly weapon during the
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    04-16-00684-CR
    commission of the offense. See TEX. PENAL CODE ANN. § 20.04(a)(4), (b) (West 2011). Stacy
    argues unanimity was required on whether he committed the offense by violating or sexually
    abusing the complainant because he would be required to submit to sex offender registration only
    if he committed the offense in that manner.
    In his brief, Stacy acknowledges aggravated kidnapping is a result-oriented offense, and
    the “allowable unit of prosecution” correlates to each victim abducted. See Gonzales v. State, 
    270 S.W.3d 282
    , 288 (Tex. App.—Amarillo 2008, pet. ref’d). Stacy further acknowledges jury
    unanimity generally is not required on any specific manner or means because the State may plead
    alternate manner and means of committing a single offense when a statute provides for different
    modes and means of committing the offense. Jefferson v. State, 
    189 S.W.3d 305
    , 312-13 (Tex.
    Crim. App. 2006); Rangel v. State, No. 04-09-00576-CR, 
    2010 WL 2183904
    , at *2 (Tex. App.—
    San Antonio June 2, 2010, no pet.) (mem. op., not designated for publication). However, Stacy
    argues the general rule does not apply in his case because one of the aggravating circumstances
    alleged by the State and included in the jury charge was violating or abusing the complainant
    sexually. If the jury found Stacy committed the offense in this manner, Stacy would be required
    to submit to sex offender registration. Citing the United States Supreme Court’s decision in
    Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), Stacy argues the jury was required to unanimously
    determine whether he committed the offense by violating or abusing the complainant sexually
    because the sex offender registration requirement increased his punishment.
    The Texas Court of Criminal Appeals has explained the application of Apprendi as follows:
    The Supreme Court determined in Apprendi v. New Jersey that “[o]ther than
    the fact of a prior conviction, any fact that increases the penalty for a crime beyond
    the prescribed statutory maximum must be submitted to a jury, and proved beyond
    a reasonable doubt.” [
    530 U.S. 466
    , 490 (2000)]. As Justice Scalia later explained
    for the Supreme Court in Blakely v. Washington, the statutory maximum in this
    context means the “maximum sentence a judge may impose solely on the basis of
    the facts reflected in the jury verdict or admitted by the defendant.” [
    542 U.S. 296
    ,
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    04-16-00684-CR
    303 (2004)]. Thus, the Apprendi line of cases requires that, in any case in which
    the defendant has elected to exercise his Sixth Amendment right to a jury trial, any
    discrete finding of fact that has the effect of increasing the maximum punishment
    that can be assessed must be made by the jury, even if that fact-finding occurs as
    part of the punishment determination.
    Barrow v. State, 
    207 S.W.3d 377
    , 379 (Tex. Crim. App. 2006) (emphasis in original). Therefore,
    in determining whether Apprendi applies in this case, we must determine whether Stacy’s
    commission of the offense by violating or sexually abusing the complainant sexually was a fact
    that increased Stacy’s statutory maximum punishment.
    In addressing whether the sex offender registration requirement violated the Ex Post Facto
    Clauses of the United States and Texas Constitutions, the Texas Court of Criminal Appeals held
    that the registration requirement is civil and remedial in nature; therefore, the registration
    requirement is not considered to be punishment. Rodriguez v. State, 
    93 S.W.3d 60
    , 65, 67, 79
    (Tex. Crim. App. 2002); see also Hernandez v. State, No. 04-04-00020-CR, 
    2004 WL 1195833
    ,
    at *1 (Tex. App.—San Antonio June 2, 2004, no pet.) (mem. op., not designated for publication)
    (recognizing sex offender registration requirement does not constitute punishment). Accordingly,
    because Stacy’s duty to register in this case did not increase his punishment beyond the statutory
    maximum, the jury was not required to unanimously determine the aggravating circumstance of
    his offense under the Apprendi-Blakely rule. See, e.g., Walton v. Prelesnik, No. 13-12797, 
    2015 WL 7351782
    , at *6-7 (E.D. Mich. Nov. 20, 2015) (concluding requirement that individual register
    as a sex offender did not violate the Apprendi-Blakely rule because registration requirement was
    not intended to punish sex offenders); Silva v. Idaho, No. CV 08-531-S-REB, 
    2010 WL 529495
    ,
    at *3–4 (D. Idaho Feb. 8, 2010) (same); Victory v. Lewis, No. C 03-1061 JSW (PR), 
    2008 WL 3926406
    , at *37 (N.D. Cal. Aug. 25, 2008) (same). Therefore, Stacy’s first and second issues are
    overruled.
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    04-16-00684-CR
    EVIDENCE REGARDING TATTOOS
    In his third issue, Stacy contends the trial court abused its discretion in admitting the
    testimony of a sexual assault nurse examiner (SANE) describing two of his tattoos and the
    explanation he gave the SANE nurse about the tattoos. Stacy asserts the probative value of the
    evidence was substantially outweighed by its prejudicial effect under Rule 403 of the Texas Rules
    of Evidence.
    “Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value
    is substantially outweighed by the danger of unfair prejudice.” Davis v. State, 
    329 S.W.3d 798
    ,
    806 (Tex. Crim. App. 2010); see also TEX. R. EVID. 403. “Rule 403 favors the admission of
    relevant evidence and carries a presumption that relevant evidence will be more probative than
    prejudicial.” 
    Davis, 329 S.W.3d at 806
    . “Probative value” “‘refers to the inherent probative force
    of the evidence — that is, how strongly it serves to make more or less probable the existence of a
    fact of consequence to the litigation — coupled with the proponent’s need for that item of
    evidence.’” 
    Id. (quoting Casey
    v. State, 
    215 S.W.3d 870
    , 879 (Tex. Crim. App. 2007)). “Unfair
    prejudice” “‘refers to a tendency to suggest [a] decision on an improper basis, commonly, though
    not necessarily, an emotional one.’” 
    Id. (quoting Casey
    , 215 S.W.3d at 880). All testimony is
    likely to be prejudicial to one party or the other, and evidence should be excluded under Rule 403
    only when a clear disparity exists between the degree of prejudice of the offered evidence and its
    probative value. 
    Id. We review
    a trial court’s ruling admitting evidence over a Rule 403 objection under an
    abuse of discretion standard. See De La Paz v. State, 
    279 S.W.3d 336
    , 343 (Tex. Crim. App.
    2009); McCallum v. State, 
    311 S.W.3d 9
    , 14–15 (Tex. App.—San Antonio 2010, no pet.). “As
    long as the trial court’s ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of
    discretion, and the trial court’s ruling will be upheld.” De La 
    Paz, 279 S.W.3d at 343
    –44. A
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    04-16-00684-CR
    proper Rule 403 analysis by either the trial court or a reviewing court includes, but is not limited
    to, the following factors: (1) the probative value of the evidence; (2) the potential to impress the
    jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; (4) the
    proponent’s need for the evidence. Jenkins v. State, 
    493 S.W.3d 583
    , 608 (Tex. Crim. App. 2016).
    When the State sought to introduce evidence regarding Stacy’s numerous tattoos, Stacy’s
    attorney objected that the evidence was unfairly prejudicial under Rule 403. The trial court
    excluded all of the photographs of the tattoos and allowed the State to elicit testimony from the
    SANE nurse who examined Stacy about only two of Stacy’s many tattoos and Stacy’s description
    to her of what the tattoos meant to him.2 One of the tattoos was of a wolf, and Stacy told the SANE
    nurse the wolf was “how I see me.”                The SANE nurse described the second tattoo as a
    “[c]ircumferential black tattoo over [Stacy’s] entire left lower leg,” 3 and Stacy described that tattoo
    as being a “sexual fantasy, S&M type of thing, tying people up.” On re-direct examination, the
    SANE nurse was asked what S&M meant, and the SANE nurse testified without objection that it
    meant “[t]he act of harming others and getting pleasure from it.”
    Applying the first and fourth balancing factors, the evidence regarding the second tattoo
    was probative to show Stacy had a fantasy of tying people up to engage in sex. See Conner v.
    State, 
    67 S.W.3d 192
    , 201 (Tex. Crim. App. 2001) (“A defendant’s choice of tattoos, like his
    personal drawings, can reflect his character and/or demonstrate his motive for his crime.”); King
    v. State, 
    29 S.W.3d 556
    , 559-60, 565 (Tex. Crim. App. 2000) (noting graphic tattoos, including a
    tattoo of “a black man with a noose around his neck hanging from a tree,” were probative of
    defendant’s motive to kill the complainant because of his race). With regard to the first tattoo, the
    2
    The SANE nurse testified that during every examination, she documents the person’s tattoos and asks the person to
    describe what the tattoos mean to that person.
    3
    In his brief, Stacy describes the tattoo as a naked woman bound in chains; however, that was not the description
    given by the SANE nurse during her testimony.
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    04-16-00684-CR
    State argued during closing argument, again without objection, that the wolf is a predator and
    likened Stacy’s actions to that of a predator. Because there was conflicting evidence as to whether
    Hatcher physically assaulted the complainant or whether Stacy physically assaulted her while
    sexually assaulting her, the evidence was needed to assist in establishing Stacy was the person who
    physically and sexually assaulted the complainant. Thus, the trial court could have concluded the
    first and fourth prongs of the balancing test weighed in favor of admitting the evidence.
    Applying the second factor, the trial court could have concluded the tendency of the brief
    testimony to impress the jury in some irrational, yet indelible, way was slight, and nothing in the
    record suggests the evidence caused the jury to behave irrationally. See Hart v. State, 
    173 S.W.3d 131
    , 149 (Tex. App.—Texarkana 2005, no pet.) (holding trial court did not abuse its discretion in
    admitting photographs of tattoos of nude women on defendant’s thighs during prosecution for
    aggravated sexual assault because appellate court did not believe the tattoos “would necessarily
    sway a jury into resolving the case based on emotion rather than reason”). Finally, applying the
    third factor, the testimony about the tattoos spanned only a few pages of the three-volume
    reporter’s record of the guilt/innocence phase of trial. Therefore, minimal time was needed to
    develop the evidence.
    Having considered the factors the trial court was required to balance in deciding to admit
    the evidence under Rule 403, we cannot conclude the trial court abused its discretion in admitting
    the testimony. Stacy’s third issue is overruled.
    CONCLUSION
    The judgment of the trial court is affirmed.
    Rebeca C. Martinez, Justice
    DO NOT PUBLISH
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