Capps, Stephen v. State ( 2013 )

AFFIRM; and Opinion Filed April 5, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00030-CR
STEPHEN CAPPS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 86th District Court
Kaufman County, Texas
Trial Court Cause No. 29741-86
OPINION
Before Justices Moseley, O’Neill, and Lewis
Opinion by Justice Lewis
A jury convicted appellant Stephen Capps of deadly conduct, evading arrest, endangering
a child, and three counts of drug possession. The jury assessed appellant’s punishment on each
of those counts; his sentences ranged from one to fifteen years’ confinement. Appellant raises
four issues in this Court, challenging (1) the trial court’s denial of his motion to suppress, (2) the
trial court’s ruling allowing evidence of an extraneous offense, (3) the trial court’s ruling
admitting certain records of the Webb County Sheriff’s Department, and (4) the sufficiency of
the evidence supporting a felony conviction used to enhance appellant’s punishment. We affirm
the trial court’s judgment.
Background
Department of Public Safety Trooper David Clayton was patrolling Interstate 30 in Hunt
County when he observed appellant’s vehicle and determined appellant was speeding. Clayton
pulled out behind appellant and turned his lights on. But rather than pulling over, appellant
accelerated; as he drove away from Clayton, appellant reached speeds over 120 miles per hour.
Clayton sought assistance from other law enforcement officers as he pursued appellant. He
reported that at one point in the chase appellant swerved on to the shoulder in an attempt to run
over a police officer who was trying to lay down spikes to stop appellant’s vehicle. The chase
continued into Kaufman County, where, officers said, appellant tried to run down another officer
with his car. Eventually the chase came to an end with appellant’s car in a ditch. Three officers
then fired into the car, discovering only after the fact that appellant’s three-year-old child was in
the car. Appellant was wounded; the child was injured indirectly by the gunfire.
At the scene, a plastic bag containing methamphetamine was found on the ground,
underneath appellant where he lay alongside the vehicle. Emergency medical personnel found
$2700 on appellant’s person and turned that over to the police. The vehicle was impounded and
searched the following day: officers discovered cocaine, heroin, and drug paraphernalia in the
vehicle.
The Motion to Suppress
In his first issue, appellant complains that his vehicle—together with evidence found
therein—was seized in Kaufman County, but was impounded and searched the next day in Hunt
County. He also complains that a search warrant was not obtained because there were no exigent
circumstances once the vehicle had been moved.
When reviewing a trial judge’s ruling on a motion to suppress, we view all of the
evidence in the light most favorable to the trial judge’s ruling. Gonzales v. State, 369 S.W.3d
851, 854 (Tex. Crim. App. 2012). We afford the trial judge’s determination of historical facts
almost total deference, and we afford the prevailing party “the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn from that evidence.” Id. (quoting State
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v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011)). Likewise, when a trial judge’s
ruling on mixed questions of law and fact depend upon an evaluation of credibility or demeanor,
we afford the ruling almost total deference. Gonzales, 369 S.W.3d at 854. However, when
mixed questions of law and fact do not depend on evaluation of credibility and demeanor, or
when the questions are purely legal, we review the trial judge’s rulings de novo. Id. The
question of whether a specific search or seizure is “reasonable” under the Fourth Amendment is
subject to de novo review. Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). We
measure Fourth Amendment reasonableness in objective terms, examining the totality of the
circumstances. Id. at 63.
Appellant’s first concern is with the movement of his vehicle from Kaufman County to
Hunt County. He contends any evidence discovered in Hunt County should be suppressed
because the code of criminal procedure forbids removing property legally seized from that
county without a magistrate’s order. See TEX. CODE CRIM. PROC. ANN. art. 18.10 (West 2005).
However, even if moving the vehicle to Hunt County was a violation of article 18.10, such a
violation would not lead to suppression of the evidence because the property was legally seized.
See Martinez v. State, 17 S.W.3d 677, 686 (Tex. Crim. App. 2000) (article 38.23 does not apply
to violations of article 18.10).
Moreover, the testimony of Texas Ranger Laura Simmons persuades us that the decision
in this case to move the vehicle was reasonable. Simmons testified that the Rangers are required
to investigate all trooper-involved shootings. She was the Ranger assigned to Hunt County; the
Ranger assigned to Kaufman County was out of the State when this incident occurred. Because
appellant’s conduct took place in both counties, Simmons was called in to oversee the
investigation. And because Simmons has state-wide jurisdiction, she had authority to investigate
both the Hunt and Kaufman County offenses. Simmons testified she worked at the Kaufman
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County site surrounding appellant’s vehicle until darkness prevented any further work. She then
had the vehicle moved to Hunt County because she knew of a secure facility there where the
investigation could continue and because all her equipment was there. The record indicates the
Hunt County storage facility was in fact secure. 1 We conclude the decision to move the vehicle
was reasonable, and the trial court correctly refused to grant the motion to suppress on this
ground.
Appellant also complains that Simmons did not obtain a warrant after she moved the
vehicle to Hunt County, given that exigent circumstances no longer existed. 2 The State has the
burden to prove the reasonableness of a warrantless search and seizure. See State v. Robinson,
334 S.W.3d 776, 779 (Tex. Crim. App. 2011). Here the State contended, inter alia, that the
evidence seized was the result of an appropriate inventory search, an exception to the warrant
requirement. The purpose of an inventory search is to protect the owner’s property while it
remains in police custody, to protect the police against claims or disputes over lost or stolen
property, and to protect the police from potential dangers. Kelley v. State, 677 S.W.2d 34, 37
(Tex. Crim. App. 1984). An inventory search is reasonable under the Fourth Amendment so
long as it is done as part of standard police procedures and not done in bad faith or for the sole
purpose of investigation. Trujillo v. State, 952 S.W.2d 879, 882 (Tex. App.—Dallas 1997, no
pet.).
In this case, Simmons testified the DPS required an inventory of all items in an
impounded vehicle. She described the process whereby she made the inventory, and the actual
inventory was admitted into evidence. Appellant’s brief characterizes the inventory as an eight-
1
Appellant’s reference to the vehicle’s being vandalized is misleading. The vehicle was vandalized only after it was released by officials to
the lien-holder.
2
The parties appear to agree that officials could not have left the vehicle on the side of the road where it had stopped: the driver-side
window was “busted” and other windows had been damaged by gunfire. Issues of safety and preservation of evidence required the vehicle to be
moved.
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hour search of the vehicle. However, Simmons testified to the time taken to process the vehicle,
both inside and out. She explained that, in accordance with DPS policy, the contents of the
vehicle were not inventoried until all processing was completed and the vehicle was ready to be
released from police custody. There is no evidence the search was made in bad faith or for the
sole purpose of investigation. We conclude the inventory search was reasonable, and the trial
court did not err in denying the motion to suppress on this ground as well.
We overrule appellant’s first issue.
Evidentiary Issues
Appellant’s second and third issues challenge evidentiary rulings by the trial court. We
review a trial court’s ruling on the admissibility of evidence for an abuse of discretion.
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
Extraneous Offense
In his second issue, appellant contends the trial court erred by admitting evidence of an
extraneous offense that was not relevant to the offenses charged in his Kaufman County trial.
The offense at issue was appellant’s Hunt County charge of attempted capital murder, which was
based on his swerving around traffic spikes–and toward the officer laying those spikes–during
the Hunt County portion of appellant’s flight from Clayton. Appellant argued below that
evidence of the Hunt County offense was irrelevant to the pending charges and any probative
value it did have was outweighed by the danger of unfair prejudice. The trial court performed a
rule 403 balancing test and concluded the State’s need to prove the context of the charged
offenses outweighed any unfairly prejudicial effect of the Hunt County evidence. The evidence
was admitted to show that context as well as the intent and state of mind of appellant. We
review the admissibility of extraneous offenses under an abuse-of-discretion standard. Devoe v.
State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
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We conclude the trial court’s ruling was correct, at a minimum, on the issue of context.
“Same transaction contextual evidence” refers to events and circumstances “that are intertwined,
inseparable parts of an event that, if viewed in isolation, would make no sense at all.” Delgado
v. State, 235 S.W.3d 244, 253 (Tex. Crim. App. 2007). The forty-minute chase that began in
Hunt County and ended in Kaufman County was one, indivisible criminal transaction. Appellant
never stopped or left his vehicle the entire time. The only way the events in Kaufman County
could be portrayed honestly, in a way that would make sense to the jury, was to allow jurors to
see the entire chase unfold. We agree with the trial court that the need for context in this
inseparable criminal transaction outweighed any unfairly prejudicial effect to appellant.
We discern no abuse of discretion in the court’s ruling. We overrule appellant’s second
issue.
Untimely Business-Record Affidavit
In his third issue, appellant contends the trial court erroneously admitted business
records–specifically Webb County Jail records–that were not timely filed under rule 902(10). 3
Acknowledging the untimeliness of its filing, the State offered the records instead under the
public-records provision of rule 902(4), and the documents were admitted.
Both rules 902(10) and 902(4) provide means of self-authenticating documentary
evidence. See TEX. R. EVID. 902. When the State conceded its documents were filed too late to
qualify under rule 902(10), it could meet the self-authenticating standard if the jail records met
3
The rule provides in relevant part:
Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule
803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise
provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required
by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the
court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least
fourteen days prior to the day upon which trial of said cause commences.
TEX. R. EVID. 902(10). The records in this case were on file only thirteen days prior to the first day of trial.
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any other provision of rule 902. The State relies on Sims v. State, 783 S.W.2d 786 (Tex. App.—
Houston [1st Dist.] 1990, no pet.), to support its argument that the records met the provisions of
rule 902(4). In Sims, the court stated:
Appellant’s second point of error is that the trial court improperly admitted the
pen packets regarding the two prior convictions over appellant’s objection.
Specifically, appellant complains the affidavits of the certifying clerk were not on
file 14 days before trial, and appellant was not given 14 days notice of the State’s
intent to introduce them into evidence. Appellant contends this violates TEX. R.
CRIM. EVID. 902(10)(business records accompanied by affidavit). Appellant’s
reliance on this provision is misplaced. The State did not offer the pen packets
into evidence under rule 902(10), but under 902(4), as certified copies of public
records that do not have a 14–day filing or notice requirement.
Id. at 789. The record establishes the jail records were certified copies of public records. Thus,
the jail records were self-authenticating under rule 902(4). The trial court did not abuse its
discretion in admitting the documents.
In this Court, appellant also cast his third issue, in part, as a hearsay issue. But appellant
did not make a hearsay objection in the trial court and thus did not preserve that complaint for
our review. A complaint made on appeal must comport with the complaint made in the trial
court, or the error is waived. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
We overrule appellant’s third issue as well.
Previous Felony Conviction
In his fourth issue, appellant contends the evidence was insufficient to prove an
Oklahoma conviction offered by the State for purposes of enhancing his punishment. We
determine whether evidence is legally sufficient by asking whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the matter at issue beyond a reasonable doubt. See Johnson v. State, 364
S.W.3d 292, 293–94 (Tex. Crim. App. 2012).
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To establish that a defendant has been convicted of a prior offense, the State must prove
beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to
that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific
document or mode of proof is required to prove these two elements. Id. The State’s evidence
includes records establishing a prior Oklahoma conviction. The information in the case states
appellant was charged with possession of amphetamine, a felony, punishable by imprisonment
for two to ten years. The final judgment in the case indicates the defendant pleaded guilty to the
charge and was assessed a three-year suspended sentence and a $2500 fine. The State also
offered evidence linking appellant to that conviction: the Oklahoma records include appellant’s
full name and his photograph. Moreover, Kaufman County Investigator Genevieve Balliette
testified that she obtained the fingerprints from appellant that appear on State’s Exhibit 52. She
further testified that she compared those fingerprints with the ones included in the State’s
exhibits from the Oklahoma felony-possession case, and the fingerprints belong to the same
person.
We conclude any rational trier of fact could have found the State’s evidence identified the
prior Oklahoma conviction and tied appellant to that conviction beyond a reasonable doubt.
Thus, the evidence was sufficient to allow enhancement of appellant’s punishment by that
conviction. See Johnson, 364 S.W.3d at 293–94. We overrule appellant’s fourth issue.
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Conclusion
We have decided each of appellant’s issues against him. Accordingly, we affirm the
judgment of the trial court.
/David Lewis/
DAVID LEWIS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
120030F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEPHEN CAPPS, Appellant On Appeal from the 86th District Court,
Kaufman County, Texas
No. 05-12-00030-CR V. Trial Court Cause No. 29741-86.
Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee Justices Moseley and O'Neill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 5th day of April, 2013.
/David Lewis/
DAVID LEWIS
JUSTICE
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