Michael Jones, II v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00073-CR
MICHAEL JONES, II APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2013-1447-A
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MEMORANDUM OPINION1
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Appellant Michael Jones, II pleaded guilty to the offense of continuous
family violence. The trial court conducted a punishment hearing and assessed
Appellant’s punishment at 8 years’ confinement. In a single issue on appeal,
Appellant argues that the trial court erred at the punishment hearing by
considering certain extraneous bad acts that “were never reported [or] indicted,
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See Tex. R. App. P. 47.4.
where there was conflicting testimony and hence not proven beyond a
reasonable doubt.” Specifically, Appellant complains of the trial court’s
consideration of extraneous acts testified to by Stacey––Appellant’s wife at the
time of the offense and the victim in this case—and testified to by Dayna––
Appellant’s ex-wife.
Both women testified that Appellant’s violence was related to his drinking.
Stacey testified to specific, detailed incidents where Appellant slapped her,
burned her with a “meth pipe,” and punched her in her breasts. Dayna testified
that on one occasion during her marriage to Appellant, she had to fight Appellant
off with a knife to prevent a sexual assault. She testified that on another
occasion as she kneeled in the living room, Appellant placed his foot on her
throat and knocked her backwards, causing her to lose consciousness. She also
testified to an incident when Appellant “smacked” her in the face. Appellant
claims that “[t]he court erroneously took the testimony of these witnesses at face
value even though their testimony was not substantiated by any indictment,
police reports made, or witnesses.”
Regarding extraneous bad acts evidence that may be considered at
punishment, article 37.07, section 3(a)(1) of the code of criminal procedure
provides, in part:
(a)(1) Regardless of the plea and whether the punishment be
assessed by the judge or the jury, evidence may be offered by the
state and the defendant as to any matter the court deems relevant to
sentencing, including but not limited to the prior criminal record of
the defendant, his general reputation, his character, an opinion
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regarding his character, the circumstances of the offense for which
he is being tried, and, notwithstanding Rules 404 and 405, Texas
Rules of Evidence, any other evidence of an extraneous crime or
bad act that is shown beyond a reasonable doubt by evidence to
have been committed by the defendant or for which he could be held
criminally responsible, regardless of whether he has previously been
charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2014). Thus,
although Appellant complains that the testimony of Stacey and Dayna concerning
extraneous bad acts “was not substantiated by any indictment, police reports
made, or witnesses,” article 37.07, section 3(a)(1) specifically authorizes
consideration at punishment of a defendant’s extraneous bad act “regardless of
whether [the defendant] has previously been charged with or finally convicted of
the act.” Id. An extraneous bad act must be shown beyond a reasonable doubt
to have been committed by the defendant; but whether an extraneous offense or
bad act was established beyond a reasonable doubt is a question of fact for the
trier of fact, not a preliminary question of admissibility for the trial court. Vicioso
v. State, 54 S.W.3d 104, 120 (Tex. App.––Waco 2001, pet. ref’d) (citing Mitchell
v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996)), cert. denied, 536 U.S.
915 (2002).
The trial court, as the trier of fact in a bench trial, is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony. See,
e.g., Goodwin v. State, 376 S.W.3d 259, 264 (Tex. App.––Austin 2012, pet.
ref’d). Here, the trial court was free to determine the credibility of Stacey and of
Dayna and to determine the weight to be given their testimony concerning the
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extraneous bad acts. We have carefully reviewed the evidence presented at the
punishment hearing; deferring to the trial court’s punishment-phase
determinations as to the credibility of Stacey and Dayna, we hold that the
evidence of the complained-of bad acts was sufficient for the trial court to have
found beyond a reasonable doubt that Appellant committed the bad acts testified
to. See Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005) (“[T]he
statutorily imposed burden of proof beyond a reasonable doubt does not require
the offering party [of bad act evidence under article 37.07, section 3(a)(1)] to
necessarily prove that the act was a criminal act or that the defendant committed
a crime.”); Kennedy v. State, 193 S.W.3d 645, 661 (Tex. App.—Fort Worth 2006,
pet. ref’d) (en banc, op. on reh’g) (holding that uncorroborated testimony of
accomplice on defendant’s involvement in prior armed robbery, for which
defendant was never indicted, was admissible at punishment as extraneous bad
act evidence).
We overrule Appellant’s sole issue and affirm the judgment of the trial
court.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 8, 2015
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