Tyrone Shepard v. State ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00002-CR

Tyrone Shepard,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 05-04424-CRF-361

MEMORANDUM  Opinion

          A jury convicted Tyrone Shepard of burglary of a habitation, and the court assessed his punishment at eight years’ imprisonment.  Shepard’s appellate counsel filed an Anders brief contending that the appeal presents no issues of arguable merit.  Shepard has not filed a pro se brief or other response, though he was notified of his right to do so.[1]  We will affirm.

Excited Utterances

          Shepard’s appellate counsel identifies one potential issue, namely, whether the court abused its discretion by admitting an officer’s testimony regarding statements the complainant made when the officer responded to the burglary dispatch.

          The complainant Veronica Franklin called 9-1-1 at about 5:20 in the morning to report that Shepard was refusing to leave the premises of the apartment complex where Franklin lived with their infant son.  The officers who responded to this call talked with Franklin and with Shepard and instructed him to leave the premises.[2] Shepard complied, and the officers left the premises at about 6:00.

          A few minutes later, Franklin heard someone trying to kick open the door to her apartment.  She grabbed her son and the cordless phone and hid in the bathroom as the intruder entered the apartment.  She braced herself against the bathroom door and made a second call to 9-1-1 at about 6:15.  When the officers returned, they found that the door to her apartment had been forced open.  Officer Anderson saw Shepard walking away from the apartment complex.  Officer Sheets went inside and found Franklin and her son in the bathroom.

          Franklin testified that she did not recall telling Officer Sheets after the first incident that Shepard had threatened to kill her if he had to kick the door in.  She testified that she did not know who broke into her apartment because the intruder never said anything.

          Officer Sheets testified over Shepard’s hearsay objection that Franklin was upset and crying and appeared to be frightened when Sheets responded to Franklin’s first call that morning.  Franklin told Sheets on that occasion that Shepard was the person knocking on her apartment door and that Shepard had threatened to kill her if he had to kick her door in.

          When Sheets responded to Franklin’s second call, Franklin was “crying,” “visibly upset,” and “looked frightened.”  Franklin appeared more upset this time than the first.  As Sheets tried to calm Franklin down, “[s]he started to rattle off about Tyrone kicking the door in.”

          Shepard objected that Sheets’s testimony was inadmissible hearsay, or at most, should be admissible only to impeach Franklin’s testimony.  The court overruled Shepard’s objection and admitted the testimony without limitation.

          This type of evidence has been routinely held admissible under the excited-utterance exception to the hearsay rule.  See, e.g., Zuliani v. State, 97 S.W.3d 589, 595-96 (Tex. Crim. App. 2003); White v. State, 201 S.W.3d 233, 245-46 (Tex. App.—Fort Worth 2006, pet. ref’d); Lagunas v. State, 187 S.W.3d 503, 512-13 (Tex. App.—Austin 2005, pet. ref’d); Campos v. State, 186 S.W.3d 93, 99-100 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  Thus, we agree with Shepard’s counsel that the court’s decision to admit this testimony does not present an issue of arguable merit.  See Villanueva v. State, 209 S.W.3d 239, 247-48 (Tex. App.—Waco 2006, no pet.) (determination of proper outcry witness not issue of arguable merit).

Other Potential Issues

          Our independent review of the record reveals other instances when Shepard objected to evidence offered by the State.[3] When Franklin testified that Shepard sent her a letter threatening to report her to the district attorney for violating her community supervision if she did not drop the charges, Shepard objected that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice, particularly because Shepard mentioned in the letter that he was facing imprisonment for 5 to 99 years.[4]  This type of evidence has long been held admissible as tending to show consciousness of guilt.  See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996) (op. on reh’g); Love v. State, 35 Tex. Crim. 27, 29 S.W. 790, 791 (1895); Johnson v. State, 208 S.W.3d 478, 500 (Tex. App.—Austin 2006, pet. ref’d); Madden v. State, 911 S.W.2d 236, 243 (Tex. App.—Waco 1995, pet. ref’d).  The obscure reference to a potential range of punishment did not cause the probative value of this evidence to be substantially outweighed by the danger of unfair prejudice.  Thus, no abuse of discretion is shown by the admission in evidence of the letter.

          Shepard also objected on the basis of hearsay when the State introduced an exhibit listing the data entries made by the 9-1-1 operator when Franklin called while hiding with her son in the bathroom.  The 9-1-1 operator established the predicate for admission of this document as a business record, and Franklin's statements contained therein are admissible as excited utterances.  Texas courts have routinely admitted such evidence.  See Cook v. State, 199 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Neal v. State, 186 S.W.3d 690, 693-94 (Tex. App.—Dallas 2006, no pet.); Kearney v. State, 181 S.W.3d 438, 443 (Tex. App.—Waco 2005, pet. ref'd); Sierra v. State, 157 S.W.3d 52, 63 (Tex. App.—Fort Worth 2004), aff’d, No. PD-453-05, 2007 WL 840483 (Tex. Crim. App. Mar. 21, 2007).

Thus, no abuse of discretion is shown by the admission of the 9-1-1 evidence.

          Finally, Shepard objected to the introduction of evidence that he returned to Franklin’s apartment about two weeks later and tried to kick the apartment door in and later called Franklin and threatened to harm her.  The court admitted this evidence for the limited purpose of proving identity.

          Evidence of an extraneous offense is admissible to prove identity when the issue of identity is contested and the extraneous offense is “so similar to the charged offense that the offenses illustrate the defendant’s ‘distinctive and idiosyncratic manner of committing criminal acts.’”  Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) (quoting Martin v. State, 173 S.W.3d 463, 468 (Tex. Crim. App. 2005)). The issue of identity was contested in Shepard’s trial because Franklin testified that she did not know who broke into her apartment on the occasion in question.  Texas courts have routinely held such evidence admissible under circumstances similar to those presented in Shepard’s case.  See Davis v. State, 180 S.W.3d 277, 285 (Tex. App.—Texarkana 2005, no pet.); Thomas v. State, 126 S.W.3d 138, 145-46 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Booker v. State, 103 S.W.3d 521, 532-33 (Tex. App.—Fort Worth 2003, pet. ref’d); Faison v. State, 59 S.W.3d 230, 242 (Tex. App.—Tyler 2001, pet. ref’d).  Thus, the court did not abuse its discretion by admitting evidence that Shepard tried to break into Franklin’s apartment two weeks after committing the charged offense.

          The evidence that Shepard later called and threatened Franklin is not probative on the issue of identity.  But see Mizell v. State, 732 S.W.2d 384, 386 (Tex. App.—Houston [14th Dist.] 1987) (“testimony regarding the threats was admissible as proof that appellant did indeed commit the extraneous offense being offered at trial on the issue of identity”), rev’d on other grounds, 761 S.W.2d 13 (Tex. Crim. App. 1988) (per curiam).  However, an appellate court should affirm a trial court’s decision “if it is reasonably supported by the record and is correct on any theory of law applicable to the case.”  State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).  Here, evidence of Shepard’s later threats was admissible as evidence of consciousness of guilt.  See Ransom, 920 S.W.2d at 299; Love, 29 S.W. at 791; Johnson, 208 S.W.3d at 500; Madden, 911 S.W.2d at 243.  Thus, the court did not abuse its discretion by admitting evidence that Shepard later called and threatened Franklin.

Conclusion

          Having reviewed the sole potential issue raised by counsel and having conducted an independent review of the record, we hold that Shepard’s appeal presents no issues of arguable merit. Accordingly, we affirm the judgment.  Counsel must advise Shepard of our decision and of his right to file a pro se petition for discretionary review.  See Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249; see also Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex. Crim. App. 2006).  We grant counsel’s request to withdraw,[5] effective upon counsel’s advising Shepard of our decision and of his right to file a pro se petition for discretionary review.  See Meza, 206 S.W.3d at 689 & n.23; Villanueva, 209 S.W.3d at 249.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs only in the judgment, but not the opinion, of the Court, without issuing a separate opinion.)

Affirmed

Opinion delivered and filed May 9, 2007

Do not publish

[CR25]

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[1]           Shepard did file a pro se motion for an extension of time to file a brief or response, but this motion was struck because Shepard failed to provide proof of service despite being advised in a letter from the Clerk of this Court that service was required and that failure to comply may result in the striking of the motion.

[2]           Shepard did not live in this apartment complex and was not on Franklin’s lease.

[3]           We refer here to only a few instances when Shepard objected to the admission of evidence.  Shepard made other objections as well, but none of them concerned a ruling which would give rise to an issue of arguable merit on appeal.

[4]           This range of punishment would apply only if enhancement allegations were found true because the State alleged that Shepard entered Franklin’s apartment with the intent to assault her, a second degree felony.  See Tex. Pen. Code Ann. § 30.02(c)(2) (Vernon 2003).

[5]           Shepard’s counsel incorporated his request to withdraw in the Anders brief rather than filing a separate motion.