Russell Robinson, Jr. v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00231-CR
RUSSELL ROBINSON, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 38602CR
MEMORANDUM OPINION
The jury convicted Russell Robinson, Jr. of the offense of continuous violence
against the family. TEX. PENAL CODE ANN. 25.11 (West 2011). The jury found the
enhancement paragraphs to be true and assessed punishment at 99 years confinement.
We affirm.
Background Facts
There is no challenge to the sufficiency of the evidence. Officer Chad Bolton, with
the Ennis Police Department, testified that on November 14, 2013, he was dispatched to
a residence in response to a domestic disturbance. When he arrived at the residence,
Lameshia Thompson ran from the residence to Office Bolton’s car. She told him that she
had been assaulted. Officer Bolton testified that he could see injuries on Thompson,
including blood on her lip. Officer Bolton made contact with Russell Robinson, Jr., who
admitted hitting Thompson in her face. Robinson was placed under arrest for assault
family violence. Thompson testified that at the time of the assault she lived with
Robinson and that they were in a dating relationship. She further testified about previous
altercations where Robinson hit her in the face and head.
Prosecuting Attorney
In the first issue, Robinson complains that the judgment should be modified to
reflect the correct name of both prosecuting attorneys who represented the State.
Robinson states that the judgment incorrectly identifies Patrick Wilson as the prosecuting
attorney in the case, but that the record reflects that Amy L. Lockhart and Habon
Mohamed were actually the prosecuting attorneys at trial. Robinson, however, cites
nothing to show that the elected State’s attorney cannot be named in the judgment if he
did not participate in the proceeding resulting in the judgment. The Code of Criminal
Procedure states that a judgment shall reflect “[t]hat the case was called and the parties
appeared, naming the attorney for the state, the defendant, and the attorney for the
defendant.” TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(2) (West Supp. 2014). The elected
district attorney for Ellis County is the attorney for the State in this case. Robinson’s first
issue is overruled.
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Hearsay
In the second issue, Robinson argues that the trial court abused its discretion in
overruling his hearsay objection. We review a trial court's ruling on admissibility of
evidence for an abuse of discretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App.
2010). We will uphold the trial court's decision unless it lies outside the zone of reasonable
disagreement. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).
Tiffany Curtis testified at trial that she and Lameshia Thompson are Facebook
friends. Curtis testified that on the night of the offense, she received a Facebook message
from Thompson asking her to call the police and send them to 700 E. Tyler because she
was being held hostage. The State introduced a copy of the Facebook conversation
between Curtis and Thompson, and Robinson objected that the Facebook conversation
was hearsay.
Hearsay is a statement, other than one made by the declarant while testifying at
trial, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d).
Thus, a statement not offered to prove the truth of the matter asserted is not hearsay.
Dinkins v. State, 894 S.W.2d 330, 347-48 (Tex. Crim. App.), cert. denied, 516 U.S. 832, 116
S. Ct. 106, 133 L. Ed. 2d 59 (1995); Davis v. State, 169 S.W.3d 673, 675 (Tex.App.-Fort Worth
2005, no pet.). Statements offered for the purpose of explaining how a defendant became
a suspect and not for the truth of the matter asserted are not hearsay. Davis v. State, 169
S.W.3d at 675.
The Facebook conversation was not offered to prove the truth of the matter
asserted, but rather to show why Curtis called 9-1-1 and why the police arrived at the
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residence. The trial court did not abuse its discretion in admitting the Facebook
conversation. Moreover, any error in admitting the conversation was harmless. TEX. R.
APP. P. 44.2 (b). Thompson testified without objection that she sent a Facebook message
to Curtis asking her to call the police. We overrule the second issue.
Extraneous Offense
In the third issue, Robinson argues that the trial court erred in admitting evidence
of an extraneous offense during the punishment phase of trial. Captain David Anthony,
with the Ennis Police Department, was called to testify during the punishment phase of
the trial. The State began to question Captain Anthony about a murder in Ennis, Texas.
Captain Anthony testified in detail about the murder of Dwayne Lamont Dowell
and his investigation of that murder. Captain Anthony stated that pursuant to his
investigation, he believed Robinson killed Dowell. Robinson was never indicted on the
murder charge.
The State also offered the testimony of Timothy Shead during the punishment
phase of the trial. Shead testified that he was in jail with Robinson and that Robinson
bragged about committing a murder in Ennis, Texas. Shead testified to the details of the
murder that were consistent with the murder of Dowell.
The State then called Shirley Mathis, Dowell’s mother. Mathis testified that on the
night Dowell was killed, he answered a knock at the door around 3:30 a.m. Mathis heard
a gunshot, and Dowell screamed, “He shot me.” Mathis asked Dowell who shot him,
and Dowell stated “Bubba Coleman.” Dowell died from the gunshot wound. Mathis
testified that she knew Dowell was referring to Robinson when he said Bubba Coleman
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shot him. The State presented additional evidence that Robinson was known as “Bubba
Coleman” in Ennis.
Texas Code of Criminal Procedure article 37.07 § 3(a) states in relevant part:
[E]vidence may be offered by the state and the defendant as to any matters
the court deems relevant to sentencing including but not limited to ...
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. CRIM. PROC. CODE ANN. art. 37.07 § 3(a) (West Supp. 2014). Therefore, the prosecution
may offer evidence of any extraneous crime or bad act that is shown, beyond a reasonable
doubt, either to have been (1) an act committed by the defendant or (2) an act for which
he could be held criminally responsible. Haley v. State, 173 S.W.3d 510, 514 (Tex. Crim.
App. 2005).
The statutorily imposed burden of proof beyond a reasonable doubt does not
require the offering party to necessarily prove that the act was a criminal act or that the
defendant committed a crime. Haley v. State, 173 S.W.3d at 515. Before the jury can
consider this evidence in assessing punishment, it must be satisfied beyond a reasonable
doubt that the acts are attributable to the defendant. Id. Whereas the guilt-innocence
stage requires the jury to find the defendant guilty beyond a reasonable doubt of each
element of the offense, the punishment phase requires the jury only find that these prior
acts are attributable to the defendant beyond a reasonable doubt. Id. The jury heard
testimony that Robinson bragged about committing the murder. The jury also heard
testimony that the victim of the murder made a dying declaration and identified
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Robinson as the person who shot him. The trial court did not abuse its discretion in
admitting the evidence of the extraneous offense. We overrule the third issue.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 10, 2015
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