Bailey, Richard Douglas ( 2015 )

PD-0823-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/3/2015 2:47:36 PM
August 4, 2015 Accepted 8/4/2015 9:23:12 AM
ABEL ACOSTA
PD-0823-15 CLERK
PD-0824-15
IN THE TEXAS COURT OF CRIMINAL APPEALS
_________________________________________________
RICHARD DOUGLAS BAILEY
APPELLANT
vs.
THE STATE OF TEXAS
APPELLEE
_________________________________________________
FROM THE FIFTH COURT OF APPEALS
CAUSE NOS. 05-14-00885-CR & 05-14-00886-CR
APPEAL FROM CRIMINAL DISTRICT COURT NO. 1
OF DALLAS COUNTY, TEXAS,
CAUSE NOS. F-12-34478-H & F-12-34479-H
_________________________________________________
APPELLANT’S PETITION
FOR DISCRETIONARY REVIEW
_________________________________________________
BRETT ORDIWAY SORRELS, UDASHEN & ANTON
State Bar No. 24079086 2311 Cedar Springs, Suite 250
bordiway@sualaw.com Dallas, Texas 75201
214-468-8100 (office)
Counsel for Appellant 214-468-8104 (fax)
Ground for Review
Whether Article 37.07 § 3(i) of the Code of Crimi-
nal Procedure is unambiguous and does not lead to
absurd results and thus must be interpreted liter-
ally.
2
Table of Contents
Ground for Review ...................................................................................... 2!
Index of Authorities .................................................................................... 4!
Identity of Parties and Counsel ................................................................. 6!
Statement Regarding Oral Argument ....................................................... 7!
Statement of the Case and Procedural History......................................... 8!
Argument................................................................................................... 10!
I.! The trial court ignored the plain language of the statute ........ 10!
II.! The court of appeals justified the trial court’s action by
pointing to the statute’s legislative history ...................................... 11!
III.! The court of appeals was wrong to point to the legislative
history of the statute to interpret it; it’s unambiguous and does not
lead to absurd results ........................................................................ 14!
IV.! Conclusion ............................................................................... 19!
Prayer ........................................................................................................ 19!
Certificate of Service ................................................................................. 21!
Certificate of Compliance ......................................................................... 21!
Appendix .................................................................................................... 22!
3
Index of Authorities
Cases
Bailey v. State, No. 05-14-00885-CR, 2015 WL 3488886 (Tex. App.—
Dallas 2015) ....................................................................................... 9, 12
Barker v. State, No. 05-03-01495-CR, 2004 WL 2404540, *3 (Tex. App.—
Dallas Oct. 28, 2004, no pet.) ................................................................ 13
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) .... 14, 15, 17
Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012) .................... 16
Cunningham v. State, No. 06-05-00215-CR, 2006 WL 2671626, *6 (Tex.
App.—Texarkana Sept. 19, 2006, pet. ref’d) ........................................ 13
Ex parte Ruthart, 980 S.W.2d 469, 472 (Tex. Crim. App. 1998)............. 15
Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011) .......... 14, 15
Hooks v. State, 73 S.W.3d 398, 402 (Tex. App.—Eastland 2002, no pet.)
.......................................................................................................... 13, 14
King v. Burwell, 135 S. Ct. 2480, 2504-05 (2015).............................. 18, 19
Kloeckner v. Solis, 568 U.S. ––––, ––––, n. 4, 133 S. Ct. 596, 607, n. 4
(2012) ..................................................................................................... 16
Lamie v. United States Tr., 540 U.S. 526, 534 (2004) ....................... 17, 18
Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 586 (Tex.
Crim. App. 1993) ................................................................................... 15
Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim. App. 2008) .................. 15
Lynch v. Alworth–Stephens Co., 267 U.S. 364, 370 (1925) ..................... 16
Murphy v. State, No. 03-02-00171-CR, 2002 WL 31385821, at *5 (Tex.
App.—Austin 2002, pet. ref’d)............................................................... 11
Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 471 (1989)....................... 17
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992) ......... 19
Rodriguez v. State, 975 S.W.2d 667, 687 (Tex. App.—Texarkana 1998,
pet. ref’d) ................................................................................................ 13
Sturges v. Crowninshield, 4 Wheat. 122, 203, 4 L. Ed. 529 (1819) ......... 18
Whitehead v. State, 273 S.W.3d 285, 288 (Tex. Crim. App. 2008) .......... 15
Statutes
TEX. CODE CRIM. PROC. art. 37.07 § 3(a)(1) .............................................. 10
TEX. CODE CRIM. PROC. art. 37.07 § 3(i) ................................................... 17
4
TEX. PEN. CODE § 46.04 .............................................................................. 8
TEX. PEN. CODE § 31.03 ............................................................................... 8
TEX. PEN. CODE § 38.04 ............................................................................. 11
TEX. PEN. CODE § 46.02 ............................................................................. 11
TEX. TRANSP. CODE § 545.421 .................................................................... 11
Rules
TEX. R. APP. P. 21.8(c) ................................................................................. 9
Constitutional Provisions
TEX. CONST. art. III, § 1. Art. I, § 1 .......................................................... 19
TEX. CONST. art. V, § 1 .............................................................................. 19
5
Identity of Parties and Counsel
For Appellant Richard Douglas Bailey:
PETE SCHULTE
Trial counsel of record
4131 N. Central Expressway, Suite 680
Dallas, Texas 75204
BRETT ORDIWAY
Appellate counsel of record
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Suite 250
Dallas, Texas 75201
For Appellee the State of Texas:
RACHEL BURRIS
Trial counsel of record
DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
133 N. Riverfront Blvd.
Dallas, Texas 75207
MARISA ELMORE
Appellate counsel of record
DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
Trial court:
CRIMINAL DISTRICT COURT NO. 1 OF DALLAS COUNTY
THE HONORABLE ROBERT BURNS PRESIDING
6
Statement Regarding Oral Argument
Bailey believes it is clear from the court of appeals’s opinion and the
briefing that the court of appeals improperly looked to legislative history
in interpreting Article 37.07 § 3(i) of the Code of Criminal Procedure. Ac-
cordingly, oral argument is waived.
7
Statement of the Case and Procedural History
A Dallas County grand jury indicted Bailey on August 16, 2012, for
theft of a firearm and, thereby, unlawful possession of a firearm by a felon
in a weapon-free zone. See TEX. PEN. CODE § 31.03(e)(4)(C) & TEX. PEN.
CODE § 46.04; (CR11: 12; CR22: 10). As to the latter offense, the indict-
ment alleged that (1) Bailey was a felon because he had been convicted of
burglary in 1992, and that (2) his punishment should be enhanced be-
cause the offense occurred within 300 feet of an elementary school. (CR2:
10).
Bailey pleaded not guilty but waived his right to a jury trial. (CR1:
59; RR2: 6-8). His trial before the court was held on April 11, 2014,3 at
which the State presented four witnesses. (RR2). The defense called two
witnesses: Bailey and his girlfriend. (RR2: 80, 88). On April 15, 2014, the
court announced that it found Bailey guilty of both charges. (RR3: 4). At
the conclusion of Bailey’s sentencing hearing on June 17, 2014, the court
1 The clerk’s record for cause F12-34478-H will be referred to as “CR1.”
2 The clerk’s record for cause F12-34479-H will be referred to as “CR2.”
3The reporter’s record for this volume states the date as July 11, 2014. (RR2). The
entirety of the record, though—the dates of the other volumes, and the docket
sheets—make clear Bailey’s trial began on April 11.
8
then sentenced him to one and four years’ imprisonment in the theft and
possession cases, respectively. (RR4: 28-29); (CR1: 36; CR2: , 32).
Bailey filed notice of appeal and a motion for new trial on June 26,
2014, the latter of which was overruled by operation of law. (CR1: 45, 47;
CR2: 35, 37); see TEX. R. APP. P. 21.8(c). The Fifth Court of Appeals over-
ruled his grounds on appeal and affirmed his conviction in an opinion
released June 2, 2015. Bailey v. State, No. 05-14-00885-CR, 2015 WL
3488886 (Tex. App.—Dallas 2015). No motion for rehearing was filed.
9
Argument
Article 37.07 § 3(i) of the Code of Criminal Proce-
dure is unambiguous and does not lead to absurd
results and thus must be interpreted literally.
! ! !
I.! The trial court ignored the plain language of the statute
At the punishment phase of Bailey’s trial, the State introduced ev-
idence of Bailey’s 14 prior convictions. And, indeed, section (a)(1) of arti-
cle 37.07 of the Code of Criminal Procedure states that:
[E]vidence may be offered by the state and the defendant as
to any matter the court deems relevant to sentencing, includ-
ing but not limited to the prior criminal record of the defend-
ant, his general reputation, his character, an opinion regard-
ing his character, the circumstances of the offense for which
he is being tried, and ... 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 con-
victed of the crime or act.
TEX. CODE CRIM. PROC. art. 37.07 § 3(a)(1). Section 3(i) of the same article
states, however, that:
Evidence of an adjudication for conduct that is a violation of
a penal law of the grade of misdemeanor punishable by con-
finement in jail is admissible only if the conduct upon which
the adjudication is based occurred on or after January 1,
1996.
10
Id. at § 3(i) (emphasis added). Accordingly, Bailey’s counsel objected to
the admission of evidence of misdemeanor convictions from “the mid-90s,
low, early mid-90s.” (RR4: 5); cf. Murphy v. State, No. 03-02-00171-CR,
2002 WL 31385821, *5 (Tex. App.—Austin 2002, pet. ref’d) (finding iden-
tical complaint not preserved for review where appellant failed to object
to the admission of his prior misdemeanors at the time they were intro-
duced into evidence). The trial court nonetheless overruled counsel’s ob-
jections and admitted evidence of three misdemeanor convictions stem-
ming from conduct which occurred prior to January 1, 1996:
1)! unlawfully carrying a weapon on April 10, 1992; (SX11 &
SX15); see TEX. PEN. CODE § 46.02;
2)! evading arrest on August 29, 1991; (SX14 & SX19); see TEX.
PEN. CODE § 38.04; and
3)! fleeing from police on January 4, 1995 (SX16 & 20); see TEX.
TRANSP. CODE § 545.421.
(RR4: 5).
II.! The court of appeals justified the trial court’s action by
pointing to the statute’s legislative history
On appeal to the Fifth Court of Appeals, Bailey argued that the trial
court abused its discretion in admitting evidence of his misdemeanor con-
victions that occurred prior to January 1, 1996. (Ap. Br. at 26-27). The
11
Code of Criminal Procedure clearly states that such evidence is admissi-
ble “only if the conduct upon which the adjudication is based occurred on
or after January 1, 1996.” And because, in this case, there can be no ques-
tion that the court’s error was harmful—the court stated as much on the
record4—Bailey’s sentence must therefore be vacated and the cases must
be remanded to the trial court for a new sentencing hearing. (Ap. Br. at
29-30).
The court of appeals did not get to the harm question. It overruled
Bailey’s ground on the basis that the trial court did not abuse its discre-
tion—despite the clear statutory language to the contrary—by pointing
to four opinions from it and its sister courts, which each held that article
37.07 § 3(i) applies only to juvenile adjudications of delinquency, not
adult convictions. See Bailey v. State, No. 05-14-00885-CR, 2015 WL
3488886, *6 (Tex. App.—Dallas 2015) (citing Hooks v. State, 73 S.W.3d
4 Before sentencing Bailey, the judge specifically stated:
Mr. Bailey, I’ve got to tell you, I’m really pretty much shocked by the
extent of your criminal history and all of the theft convictions. It makes
it very difficult for me to believe anything you say.
(RR4: 19). The court then rejected Bailey’s imploration for a probated sentence, pred-
icated on his promise to commit no further offenses, and sentenced him to one and
four years’ imprisonment. (RR4: 26-27, 29).
12
398, 402 (Tex. App.—Eastland 2002, no pet.); Rodriguez v. State, 975
S.W.2d 667, 687 (Tex. App.—Texarkana 1998, pet. ref’d); Barker v. State,
No. 05-03-01495-CR, 2004 WL 2404540, *3 (Tex. App.—Dallas Oct. 28,
2004, no pet.) (mem. op., not designated for publication); Cunningham v.
State, No. 06-05-00215-CR, 2006 WL 2671626, *6 (Tex. App.—Texarkana
Sept. 19, 2006, pet. ref’d)).
The rationale behind each of those cases is set out in Hooks. In that
case, the Eastland Court of Appeals relied entirely on the statute’s legis-
lative history to supports its conclusion that article 37.07 § 3(i) applies
only to juvenile adjudications of delinquency, not adult convictions:
The Act of June 2, 1997, 75th Leg., R.S., ch. 1086, § 31, 1997
Tex. Gen. Laws 4179, 4191 reflects that Section 3(i) was orig-
inally enacted as Section 3(h) and that, at the same time, the
legislature amended the last sentence in Section 3(a) to read:
Additionally, notwithstanding Rule 609(d), Texas
Rules of Criminal Evidence, and subject to Subsec-
tion (h), evidence may be offered by the state and
the defendant of an adjudication of delinquency
based on a violation by the defendant of a penal
law of the grade of:
(1) a felony; or
(2) a misdemeanor punishable by confinement in
jail. (Emphasis added to note the language added
by the legislature)
13
During the same session, the legislature had earlier enacted
another Section 3(h) that prevented the State or defendant
from offering evidence during the punishment phase that the
defendant planned to undergo an orchiectomy (castration).
Act of May 5, 1997, 75th Leg., R.S., ch. 144, § 2, 1997 Tex.
Gen. Laws 287, 289. Attempting to correct the problem of hav-
ing enacted two sections numbered 3(h), the legislature in
1999 renumbered the Section 3(h) enacted on June 2, 1997, as
Section 3(i); however, the legislature failed to change the ref-
erence in Section 3(a) from (h) to (i). See the notes on the leg-
islative history of TEX. CODE CRIM. PROC. art. 37.07 in the
2002 Vernon supplement. Despite this oversight by the legis-
lature, the reference in Section 3(a) to (h) should be read to
refer to what is now codified as Section 3(i) because a refer-
ence to any portion of a statute or rule applies to all reenact-
ments, revisions, or amendments of the statute or rule. TEX.
GOV’T CODE ANN. § 311.027 (Vernon 1998).
Hooks, 73 S.W.3d at 402.
III.! The court of appeals was wrong to point to the legislative
history of the statute to interpret it; it’s unambiguous and
does not lead to absurd results
Statutory construction is a question of law, and appellate courts are
to review lower courts’ interpretation of a statute de novo. Harris v. State,
359 S.W.3d 625, 629 (Tex. Crim. App. 2011). When appellate courts in-
terpret statutes, their constitutional duty is to determine and give effect
to the apparent intent of the legislators who voted for it. Boykin v. State,
818 S.W.2d 782, 785 (Tex. Crim. App. 1991). Indeed, “the Legislature is
constitutionally entitled to expect that the Judiciary will faithfully follow
14
the specific text that was adopted.” Id. In determining this apparent leg-
islative intent, courts must focus their attention on the text of the statute
and ask, how would ordinary legislators have understood that text? Lan-
ford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 586 (Tex. Crim. App.
1993). Appellate courts must look first to the statute’s literal text, and
“‘read words and phrases in context and construe them according to the
rules of grammar and usage.’” Harris, 359 S.W.3d at 629 (quoting Lopez
v. State, 253 S.W.3d 680, 685 (Tex. Crim. App. 2008)). Words and phrases
are construed under the rules of grammar and common usage unless they
have acquired technical or particular meaning. Ex parte Ruthart, 980
S.W.2d 469, 472 (Tex. Crim. App. 1998). “Only if the statutory language
is ambiguous, or leads to absurd results that the Legislature could not
have possibly intended, may [courts] consult extra-textual sources.” Har-
ris, 359 S.W.3d at 629 (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex.
Crim. App. 1991)); see also Whitehead v. State, 273 S.W.3d 285, 288 (Tex.
Crim. App. 2008) (“Given this ambiguity in the statute, we may legiti-
mately consider, in arriving at a sensible interpretation, such extratex-
tual factors as legislative history or the probable consequences of a par-
ticular interpretation.”).
15
Under the same framework, the United States Supreme Court has
stated that “the plain, obvious, and rational meaning of a statute is al-
ways to be preferred to any curious, narrow, hidden sense that nothing
but the exigency of a hard case and the ingenuity and study of an acute
and powerful intellect would discover.” Lynch v. Alworth–Stephens Co.,
267 U.S. 364, 370 (1925) (internal quotation marks omitted). “[E]ven the
most formidable argument concerning the statute’s purposes could not
overcome the clarity [of] the statute’s text.” Kloeckner v. Solis, 568 U.S. –
–––, ––––, n. 4, 133 S. Ct. 596, 607, n. 4 (2012).
Ambiguity exists when reasonably well-informed persons may un-
derstand the statutory language in two or more different senses; con-
versely, a statute is unambiguous when it permits only one reasonable
understanding. See Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App.
2012). In this case, there is nothing ambiguous about Article 37.07 § 3(i).
The words are common (at least for lawyers); the grammar is sound:
Evidence of an adjudication for conduct that is a violation of
a penal law of the grade of misdemeanor punishable by con-
finement in jail is admissible only if the conduct upon which
the adjudication is based occurred on or after January 1,
1996.
16
TEX. CODE CRIM. PROC. art. 37.07 § 3(i). Thus, the only question is
whether that text creates such an unthinkable result as to trigger the
absurdity doctrine. See Boykin, 818 S.W2d at 785; see also Lamie v.
United States Tr., 540 U.S. 526, 534 (2004) (“[W]hen the statute’s lan-
guage is plain, the sole function of the courts—at least where the dispo-
sition required by the text is not absurd—is to enforce it according to its
terms.”). Indeed, absurdity is the only basis for the extraordinary step of
departing from plain text. See Boykin, 818 S.W.2d at 785-86 (“If the plain
language of a statute would lead to absurd results, or if the language is
not plain but rather ambiguous, then and only then, out of absolute ne-
cessity, is it constitutionally permissible for a court to consider, in arriv-
ing at a sensible interpretation, such extratextual factors as executive or
administrative interpretations of the statute or legislative history.”). And
the test is a rigorous, objective one: The absurdity must be “so clear as to
be obvious to most anyone,” such that it is “quite impossible that [the
legislature] could have intended the result.” Pub. Citizen v. Dep’t of Jus-
tice, 491 U.S. 440, 471 (1989) (Kennedy, J., concurring in judgment) (em-
phasis added).
17
To that end, the United States Supreme Court has held that courts
have no free-floating power “to rescue Congress from its drafting errors.”
Lamie, 540 U.S. at 542 (internal quotation marks omitted). “Only when
it is patently obvious to a reasonable reader that a drafting mistake has
occurred may a court correct the mistake.” King v. Burwell, 135 S. Ct.
2480, 2504-05 (2015) (Scalia, J., dissenting). The occurrence of a misprint
may be apparent from the face of the law, or because a provision decrees
an absurd result—“a consequence ‘so monstrous, that all mankind would,
without hesitation, unite in rejecting the application.’” Id. (quoting
Sturges v. Crowninshield, 4 Wheat. 122, 203, 4 L. Ed. 529 (1819) (Mar-
shall, C.J.)). But § 3(i) does not come remotely close to satisfying that
demanding standard. It is entirely plausible that the legislature would
wish to preclude prosecutors from using minor 15-plus-year-old crimes to
deprive the liberty of defendants. The courts of appeals therefore have no
authority to dismiss the terms of the law as a drafting fumble.
That is the end of the matter. Because the plain language is unam-
biguous and does not produce an objectively absurd result, it must be
followed, regardless of what the legislature (purportedly) subjectively in-
tended. See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618
18
(1992) (question is “not what Congress ‘would have wanted’ but what
Congress enacted”); Connecticut Nat’l Bank v. Germain, 503 U.S. 249,
254 (1992) (Congress “says in a statute what it means and means in a
statute what it says there”).
IV.! Conclusion
The Dallas Court of Appeals’s decision, and those of its sister courts,
“reflects the philosophy that judges should endure whatever interpretive
distortions it takes in order to correct a supposed flaw in the statutory
machinery.” King, 135 S. Ct. at 2505 (Scalia, J., dissenting). That philos-
ophy ignores the Texas people’s decision to give “[t]he Legislative power
of this State [to] a Senate and House of Representatives.” TEX. CONST.
art. III, § 1. Art. I, § 1. They made Congress, not the courts, responsible
for both making laws and mending them. Courts holds only the judicial
power—the power to pronounce the law as the legislature has enacted it.
See TEX. CONST. art. V, § 1. The court of appeals in this case was wrong,
then, in ignoring the plain language of the statute in order to achieve its
desired result.
Prayer
19
Accordingly, Bailey respectfully requests this Court to grant this
petition so that it may reverse and remand this case to the court of ap-
peals to properly evaluate the trial court’s error was harmful.
Respectfully submitted,
/s/ Brett E. Ordiway
BRETT E. ORDIWAY
Bar Card No. 24079086
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
bordiway@sualaw.com
(214)-468-8100 (office)
(214)-468-8104 (fax)
Attorney for Appellant
20
Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of the
foregoing Appellant’s Petition for Discretionary Review was electroni-
cally served to the Dallas County District Attorney’s Office and the State
Prosecuting Attorney on August 3, 2015.
/s/ Brett E. Ordiway
BRETT E. ORDIWAY
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:
1.! the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
this brief contains 2,241 words, excluding the parts of the brief ex-
empted by TEX. R. APP. P. 9.4(i)(1).
2.! the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style
requirements of TEX. R. APP. P. 9.4(e) because this brief has been
prepared in a proportionally spaced typeface using Microsoft Word
2011 in 14-point Century.
/s/ Brett E. Ordiway
BRETT E. ORDIWAY
21
Appendix
22
MODIFY and AFFIRM; and Opinion Filed June 2, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00885-CR
No. 05-14-00886-CR
RICHARD DOUGLAS BAILEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F-1234478-H & F-1234479-H
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Evans
Opinion by Justice Fillmore
Following a bench trial, the trial court found appellant Richard Douglas Bailey guilty of
theft of a firearm in cause number F-1234478-H and guilty of unlawful possession of a firearm
by a felon in a weapon-free zone in cause number F-1234479-H. The trial court assessed
punishment of one year confinement in cause number F-1234478-H and four years’ confinement
in cause number F-1234479-H. In two issues, Bailey contends (1) the evidence is legally
insufficient to support the convictions and (2) the trial court abused its discretion by admitting
evidence of his misdemeanor convictions stemming from acts that occurred prior to January 1,
1996. We modify the trial court’s judgments to reflect there were no plea bargains. As
modified, we affirm the judgments.
Background
The evening of July 10, 2012, Bailey was with friends in the parking lot of an elementary
school and recreation center following a basketball game. Danielle Rossi, who had been dating
Bailey for several months, arrived by car with a friend. Talisha Thomas, who was also dating
Bailey, was also present in the parking lot. Thomas was unaware Rossi was dating Bailey.
Rossi told Bailey she was sorry she had not returned an earlier text message from him. Thomas
asked to see Rossi’s phone and confirmed Bailey had been communicating with Rossi.
Arguments ensued between Thomas and Bailey and between Rossi and Bailey.
According to Rossi, Bailey called her a tramp and told her that her time was coming, he
was going to get her, and he was going to shoot her in the face. Rossi and her friend drove away,
and Rossi stopped nearby and phoned the police. Irving Police Department officer David
Zimmerman arrived and spoke with Rossi. She described the vehicle Bailey was driving as a tan
Chevrolet Tahoe. Rossi testified she had never known Bailey to have a gun, and she did not
recall telling the police that she felt Bailey had a gun.
Irving Police Department officer Eric Clemens was dispatched to a domestic disturbance
in the parking lot of the elementary school and recreation center. Irving Police Department
officer Alex Terry was also dispatched to the location. Clemens testified he arrived at the scene
prior to Terry. Clemens located the sports utility vehicle and the male described in the dispatch.
Bailey advised Clemens the Tahoe was a girlfriend’s vehicle he was using. Bailey’s gym bags
were outside the Tahoe. Clemens testified he explained to Bailey and another male standing by
the Tahoe the nature of the dispatch received and why he was there. Once Terry arrived at the
scene, Clemens patted down Bailey and determined Bailey did not have a weapon on his person.
Clemens then asked Bailey for permission to search the Tahoe. Bailey granted permission for
search of the vehicle. The tailgate of the Tahoe was open, and Bailey began his search of the
–2–
rear compartments of the vehicle. In a closed compartment on the left side of the Tahoe,
Clemens found a black nylon case containing a .380 caliber semi-automatic pistol. Clemens
testified the gun was in working order and he recalled that it was loaded. Clemens placed Bailey
in handcuffs and made the pistol “inoperable.” Bailey acted shocked that the gun was in the
Tahoe and stated he did not know where the gun had come from. Bailey did not tell Clemens the
gun belonged to his ex-girlfriend Jaileigh Glover. Bailey was placed under arrest because he had
care, custody, and control of the Tahoe in which the gun was found. Clemens contacted
Zimmerman to advise that a gun had been found in the vehicle Bailey was driving. Zimmerman
then came to the scene and took over the investigation.
Zimmerman testified he had been dispatched to a disturbance call. The reporting party,
Rossi, had left the scene and was parked approximately a block from the elementary school and
recreation center. After speaking with Rossi, Zimmerman went to the scene and contacted
officers Clemens and Terry. Zimmerman took possession of the gun, bullets, and ammunition
clip that had been found in the Tahoe. Zimmerman conducted a background check on Bailey
and learned Bailey had been convicted of a felony. Zimmerman placed Bailey under arrest for
possession of a firearm by a felon. Zimmerman testified the location of Bailey’s arrest was an
elementary school, which is a weapon-free zone. Zimmerman recalled that Clemens transported
Bailey to the jail while Zimmerman remained at the scene.
According to Zimmerman’s recollection, Clemens had not completed the search of the
Tahoe but Bailey was in handcuffs when Zimmerman arrived at the scene. While Zimmerman
was conducting a background check on Bailey, Clemens advised Zimmerman that he had located
a gun in the Tahoe. Bailey stated he did not know the gun was in the Tahoe and that the gun
belonged to Glover, a woman he had dated. Zimmerman contacted Glover, and he had the
impression from her that the gun was hers and that she had dated Glover. Zimmerman
–3–
confirmed with the Grapevine Police Department that the gun had been reported stolen, and
Zimmerman then added theft-of-a-firearm as an additional charge against Bailey.
At trial, Glover testified she dated Bailey from October 2011 to March or April 2012.
Bailey spent the night with her once or twice after they no longer dated. Glover’s father
purchased a .380 caliber pistol for her to assure her protection. Glover identified the gun found
in the Tahoe as her gun. She testified she had custody and control of the gun up to July 2012.
Glover kept the gun in the glove compartment of her car most of the time. When she brought the
gun into her apartment, she stored it in a hall closet where towels are kept. Glover testified
Bailey knew she had a gun and where she kept the gun in her apartment. In 2011, Bailey had
taken Glover’s gun without her permission. On that occasion, when Glover asked Bailey if he
had the gun, he acknowledged that he did; Glover asked Bailey to return her gun, but he did not
return it for approximately two months. Glover testified Bailey returned her gun to her sometime
before the end of 2011.
In July 2012, Glover determined her gun was missing. The last time she had seen her
gun, it was in the hall closet. Glover called her father, and he told her that if the gun had not
been found the next day, she should file a stolen-firearm report with police. On July 9, 2012,
Glover contacted Bailey because he was the last person in her apartment who knew where she
kept the gun. Bailey said he had not seen her gun and asked why Glover thought he would steal
her gun. Glover advised Bailey she was contacting the police to file a stolen-firearm report.
According to Glover, Bailey did not encourage her to call the police. Glover filed a stolen-
firearm report with the Grapevine Police Department that night. Glover testified she did not
know when the gun was stolen, but the theft occurred before July 9, 2012. She recalled telling
the Grapevine police that she believed her gun went missing between June 27, 2012 and July 9,
2012, although she could not recall how she arrived at the date of June 27, 2012.
–4–
Glover was asked whether she had attended a baseball game with Bailey, and she
testified it was possible she had done so. When asked whether she had been intoxicated before
entering the baseball game and left her gun “somewhere” because she could not take it into the
game, she testified that “it could have [happened]. I don’t remember.” However, she later
testified specifically that she was certain she never had her gun at a baseball game and she never
left her gun in the Tahoe driven by Bailey. Glover testified that when she was with Bailey, they
always used her car. Although she said she had been in the Tahoe once or twice, she could not
recall the last time she had ridden in that vehicle.
Talisha Thomas testified she had known Bailey for eight years and had been in a
romantic relationship with him for almost four years. Thomas was present in the parking lot of
the elementary school and recreation center at the time of the incident. Rossi and a friend
arrived. According to Thomas, Rossi knew Thomas was Bailey’s girlfriend. Rossi told Bailey
she was sorry she had not responded to a text message from him earlier that day. Rossi allowed
Thomas to see text messages on her phone, and Thomas realized Bailey was dating multiple
women simultaneously. Thomas attempted to leave in the car she had driven, but Bailey took the
keys. Argument ensued among Thomas, Bailey, and Rossi. Bailey yelled to Rossi that she
needed to leave, and Rossi told Bailey she hated him and she was going to call the police. Rossi
then left. Thomas did not recall Bailey telling Rossi he was going to shoot her in the face.
Thomas did not know Bailey had a gun. The Tahoe Bailey was driving belonged to Thomas.
Bailey testified in the guilt-innocence phase of trial. Bailey admitted he had a prior
felony conviction more than twenty years previously, but testified he had not been in trouble
since.
Regarding the incident at issue, Bailey indicated that following a basketball game, he and
friends were gathered in the parking lot of an elementary school. Thomas had joined Bailey after
–5–
she finished work. Although Rossi was not invited to attend the basketball game, she arrived at
the elementary school parking lot and told Bailey she was sorry she had not returned his text
message from earlier in the day. An argument ensued, and Bailey and Rossi were yelling at each
other. Bailey testified he did not threaten to shoot Rossi. Bailey recalled Rossi told him she was
going to call the police and was “going to get” him.
Irving police officers arrived at the elementary school parking lot after Rossi left. Bailey
testified he was searched, but was not carrying a weapon. Clemens asked if he could search
Bailey’s vehicle, and Bailey consented to the search. Clemens searched Bailey’s vehicle, and
thereafter Zimmerman arrived at the scene. Clemens searched Bailey’s vehicle a second time
and found the gun. Bailey told the police officers that he recognized the gun as Glover’s and she
had left it in the Tahoe. Bailey gave the officers Glover’s phone number, and an officer phoned
and spoke with Glover. The officer said Glover verified that the gun was hers, but the officers
said they had to keep the gun. Another police officer arrived; several minutes later, Bailey was
handcuffed, placed under arrest, and taken to jail. Bailey testified he did not steal the gun from
Glover, know the gun was in his vehicle at the time of the incident, or have the intent to possess
the gun.
Bailey testified he was dating two women in July 2012. He had ended his relationship
with Glover and had last seen her approximately one week before the incident at issue. He
described an instance in which he and Glover had eaten dinner and had been drinking before a
baseball game. Bailey drove to the baseball game and Glover was a passenger in the vehicle.
Bailey did not know it, but Glover had her gun with her in a black pouch. When they arrived at
the baseball game, Glover knew she could not take the gun into the stadium; Bailey told Glover
he would find a place for the gun in his car. Bailey placed Glover’s gun in the back of the
Tahoe. Bailey stayed at Glover’s apartment that night. Bailey and Glover forgot about the gun
–6–
being in the Tahoe. Glover did not ask about her gun until she called Bailey and told him she
had reported the gun stolen. Bailey testified he told Glover that she needed to report the gun
stolen “if there’s a gun floating around in your name or your dad’s name.” In their conversation,
Bailey said, “You think I stole it? You know, I would never steal anything from you.”
The trial court found Bailey guilty of theft of a firearm in cause number F-1234478-H,
see TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2014), and guilty of unlawful possession of a
firearm by a felon in a weapon-free zone in cause number F-1234479-H. See id. §§ 46.04(a),
46.11(a)(1) (West Supp. 2014). The trial court assessed punishment of one year confinement in
cause number F-1234478-H and four years’ confinement in cause number F-1234479-H.
Bailey’s motions for new trial were overruled by operation of law, and Bailey filed these appeals
of the convictions.
Sufficiency of the Evidence
In his first issue, Bailey asserts the evidence is insufficient to support his convictions of
theft of a firearm and possession of a firearm by a felon in a weapon-free zone. “A person
commits [theft] if he unlawfully appropriates property with intent to deprive the owner of
property.” TEX. PENAL CODE ANN. § 31.03(a). Appropriation of property is unlawful if it is
without the owner’s effective consent. Id. § 31.03(b)(1). A person who has been convicted of a
felony commits the offense of unlawful possession of a firearm if, among other circumstances,
he possesses a firearm at a location other than the premises at which he lives. TEX. PENAL CODE
ANN. § 46.04(a). Punishment prescribed for unlawful possession of a firearm by a felon “is
increased to the punishment prescribed for the next highest category of offense if it is shown
beyond a reasonable doubt on the trial of the offense that the actor committed the offense in a
place that the actor knew was . . . within 300 feet of the premises of a school.” TEX. PENAL
CODE ANN. § 46.11(a)(1).
–7–
We review the sufficiency of the evidence under the standard set out in Jackson v.
Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).
We examine all the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This standard recognizes “the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The
factfinder is entitled to judge the credibility of the witnesses, and can choose to believe all, some,
or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (“The
factfinder exclusively determines the weight and credibility of the evidence.”).
We defer to the factfinder’s determinations of credibility, and may not substitute our
judgment for that of the factfinder. See Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim.
App. 2014); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal
sufficiency analysis, appellate court may not re-weigh the evidence and substitute its judgment
for that of the factfinder). When there is conflicting evidence, we must presume the factfinder
resolved the conflict in favor of the verdict, and defer to that resolution. Jackson, 443 U.S. at
326; see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Evidence is
sufficient if “the inferences necessary to establish guilt are reasonable based upon the cumulative
force of all the evidence when considered in the light most favorable to the verdict.” Wise, 364
S.W.3d at 903.
In our sufficiency review, “direct evidence of the elements of the offense is not required.”
Hooper v. State, 214 S.W.3d 9, 14–15 (Tex. Crim. App. 2007). Circumstantial evidence is as
–8–
probative as direct evidence, and the factfinder is permitted to make reasonable inferences from
the evidence presented at trial and in establishing the defendant’s guilt. Id. “Circumstantial
evidence alone can be sufficient to establish guilt.” Id. “Each fact need not 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.” Thomas v. State, 444
S.W.3d 4, 8 (Tex. Crim. App. 2014) (quoting Hooper, 214 S.W.3d at 13).
We review the evidence in the light most favorable to the verdict to determine if the State
proved Bailey unlawfully appropriated Glover’s gun with the intent to deprive Glover of the
property. See TEX. PENAL CODE ANN. § 31.03(a). The trial court heard testimony from Glover
that Bailey had taken her gun in 2011 without her knowledge or permission and did not promptly
return it when she confronted him. With regard to the 2012 incident at issue here, Glover
contacted Bailey when she determined her gun was missing because Glover was the last person
who had been in Glover’s apartment who knew where she kept her gun. Even when Glover
inquired of Bailey the day before the incident at issue whether Bailey had her gun, Bailey
responded that he did not and could not recall the gun had purportedly been placed in the Tahoe
approximately one week before. Yet at trial, well after the incident at issue, Bailey recounted the
story regarding the gun being placed in the Tahoe before attending a baseball game and testified
he had a “crystal clear” memory of that event. Although Glover stated it was possible she had
attended a baseball game with Bailey, and initially testified that leaving her gun “somewhere”
because it could not be taken into the game “could have [happened]. I don’t remember,” when
questioned further she specifically testified she was certain she never had her gun at a baseball
game and she never left her gun in the Tahoe that Bailey drove.
We conclude a rational factfinder could have found the essential elements of the offense
of theft beyond a reasonable doubt. Viewing the evidence in the light most favorable to the
–9–
verdict, there was sufficient evidence for the factfinder to find Bailey, acting with the intent to
deprive Glover of her gun, unlawfully appropriated the property without Glover’s effective
consent. We conclude the evidence supporting the trial court’s finding Bailey guilty of theft of
the gun was sufficient.
Bailey also was charged as a felon intentionally and knowingly possessing a gun at a
location other than the premises at which he lived and at a place he knew was within 300 feet of
a school. At trial, Bailey testified he had been previously convicted of a felony and that the
incident at issue occurred in the parking lot of an elementary school. On appeal, Bailey does not
contest his prior felony conviction or that the incident occurred in a weapon-free school zone.
Rather, Bailey’s sole assertion is that the evidence is insufficient to prove he knowingly
possessed the gun.
Possession is an essential element of the crime of unlawful possession of a firearm. See
TEX. PENAL CODE ANN. § 46.04(a) (elements of crime for felon in possession of firearm).
“‘Possession’ means actual care, custody, control, or management.” TEX. PENAL CODE ANN.
§ 1.07(a)(39) (West Supp. 2014). A person commits a possession offense only if he voluntarily
possesses the prohibited item. See id. § 6.01(a) (West 2011). “Possession is a voluntary act, if
the possessor knowingly obtains or receives the thing possessed or is aware of his control of the
thing for a sufficient time to permit him to terminate his control.” Id. § 6.01(b).
With regard to the element of possession, the State was required to show that Bailey
knew of the gun’s existence and that he exercised actual care, custody, control, or management
over it. See Grantham v. State, 116 S.W.3d 136, 143 (Tex. App.—Tyler 2003, pet. ref’d). The
evidence used to satisfy these elements may be direct or circumstantial, but the accused’s
connection with the firearm must be more than merely fortuitous. Davis v. State, 93 S.W.3d 664,
667 (Tex. App.—Texarkana 2002, pet. ref’d). No set formula of facts exists to dictate a finding
–10–
of affirmative links sufficient to support an inference of knowing possession of contraband.
Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.).
The evidence is that the gun was located in a closed compartment in the rear section of
the Tahoe. The Tahoe was in Bailey’s possession, and although the vehicle belonged to Thomas,
there was no evidence Thomas had any involvement in procuring or possessing Glover’s gun.
As discussed above, we have concluded the evidence is sufficient for a factfinder to reasonably
find Bailey took possession of Glover’s gun without Glover’s permission and maintained
possession of the gun despite Glover confronting Bailey regarding the missing gun. Viewing the
evidence in the light most favorable to the verdict, there was sufficient evidence to establish
Bailey knew the gun was in the Tahoe as a result of having taken it from Glover and that Bailey
exercised custody and control over the firearm.
As addressed above, we have concluded on this record that the trial court, as the
factfinder, could have found the elements of the offenses of theft and unlawful possession of a
firearm by a felon in a weapon-free zone beyond a reasonable doubt. Accordingly, we resolve
Bailey’s first issue against him.
Admission of Evidence
In his second issue, Bailey asserts that, during the punishment phase of trial, the trial
court abused its discretion by admitting evidence of Bailey’s misdemeanor convictions that
occurred prior to January 1, 1996. According to Bailey, the misdemeanor convictions are only
admissible under section 3(i) of article 37.03 of the code of criminal procedure “if the conduct
upon which the adjudication is based occurred on or after January 1, 1996.” TEX. CODE CRIM.
PROC. ANN. art. 37.07, § 3(i) (West Supp. 2014). The State responds that Bailey’s reliance on
article 37.07(3)(i) is misplaced because it applies only to juvenile adjudications, and the
misdemeanor convictions about which Bailey complains were adult convictions.
–11–
We review the trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial
court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any
guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App.—1993). The
trial court does not abuse its discretion unless its determination lies outside the zone of
reasonable disagreement. Martinez, 327 S.W.3d at 736.
Bailey acknowledges that under the code of criminal procedure, evidence may be offered
relevant to sentencing, including the defendant’s prior criminal record. See TEX. CODE CRIM.
PROC. ANN. art. 37.07, § 3(a)(1). However, Bailey states that, of the evidence of Bailey’s
fourteen prior convictions admitted in evidence, admission of three misdemeanor convictions
based on conduct that occurred before January 1, 1996 (evading arrest that occurred on August
29, 1991, unlawfully carrying a weapon that occurred on April 10, 1992, and fleeing from police
that occurred on January 1, 1995) was error under article 37.07(3)(i) of the code of criminal
procedure. Section 3(i) of article 37.07 provides:
Evidence of an adjudication for conduct that is a violation of a penal law of the
grade of misdemeanor punishable by confinement in jail is admissible only if the
conduct upon which the adjudication is based occurred on or after January 1,
1996.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(i). This provision, however, applies to juvenile
adjudications of delinquency; it does not apply to adult convictions. Hooks v. State, 73 S.W.3d
398, 402 (Tex. App.—Eastland 2002, no pet.); see also Rodriguez v. State, 975 S.W.2d 667, 687
(Tex. App.—Texarkana 1998, pet. ref’d). 1
1
See Barker v. State, No. 05-03-01495-CR, 2004 WL 2404540, at *3 (Tex. App.—Dallas Oct. 28, 2004, no pet.) (mem. op., not designated
for publication) (section 3(i) of article 37.07 of the code of criminal procedure “applies to juvenile adjudications; it does not apply to adult
convictions”); Cunningham v. State, No. 06-05-00215-CR, 2006 WL 2671626, at *6 (Tex. App.—Texarkana Sept. 19, 2006, pet. ref’d) (mem.
op., not designated for publication) (under section 3(i) or article 37.07 of the code of criminal procedure, juvenile adjudication of delinquency
which occurred before January 1, 1996 is not admissible as prior adjudication of delinquency unless the adjudication was for felony-grade
offense).
–12–
The evidence of misdemeanor convictions Bailey complains about on appeal related to
adult convictions, not juvenile adjudications. 2 Evidence of adult convictions for conduct that
occurred before January 1, 1996 is not precluded by section 3(i) of article 37.07 of the code of
criminal procedure.
We conclude the trial court did not abuse its discretion in admitting the complained-of
misdemeanor convictions in evidence. We resolve Bailey’s second issue against him.
Reformation of Judgments
We may modify a trial court’s written judgment to correct a clerical error when we have
the necessary information before us to do so. TEX. R. APP. P. 43.2(b); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). The reporter’s record and clerk’s
records reflect Bailey entered pleas of not guilty to the charges in trial court cause numbers F-
1234478-H and F-1234479-H. Further, the clerk’s records in cause numbers F-1234478-H and
F-1234479-H contain the trial court’s certifications that the cases are not plea-bargain cases. The
judgments in cause numbers F-1234478-H and F-1234479-H erroneously reflect that they were
plea bargain cases. Accordingly, we reform the trial court’s judgment in cause number F-
1234478-H to delete the language “1 Year State Jail, No Fine” that appears in the section of the
judgment titled “Terms of Plea Bargain,” and we reform the trial court’s judgment in cause
number F-1234479-H to delete the language “4 Years TDCJ, No Fine” that appears in the section
of the judgment titled “Terms of Plea Bargain.”
2
The record reflects Bailey’s birthdate. With regard to the dates of the conduct at issue in the complained-of misdemeanor criminal
convictions admitted in evidence, Bailey was twenty years of age in August 1991, twenty-one years of age in April 1992, and twenty-four years
of age in January 1996. See Moon v. State, 451 S.W.3d 28, 37 (Tex. Crim. App.—2014) (designated juvenile court of each county has exclusive
jurisdiction over proceedings in cases involving delinquent conduct engaged in by a person who was a “child” at the time the person engaged in
the conduct; “child” defined by Juvenile Justice Code as person ten years of age or older and under seventeen years of age) (citations omitted).
–13–
As modified, the judgments are affirmed.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
140885F.U05
–14–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RICHARD DOUGLAS BAILEY, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas,
No. 05-14-00885-CR V. Trial Court Cause No. F-1234478-H.
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section of the judgment titled “Terms of Plea Bargain” is modified to delete
“1 Year State Jail, No Fine.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 2nd day of June, 2015.
–15–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RICHARD DOUGLAS BAILEY, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas,
No. 05-14-00886-CR V. Trial Court Cause No. F-1234479-H.
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section of the judgment titled “Terms of Plea Bargain” is modified to delete
“4 Years TDCJ, No Fine.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 2nd day of June, 2015.
–16–