Clinton Tynes v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00048-CR
CLINTON TYNES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2010-1272-C1
MEMORANDUM OPINION
Appellant, Clinton Tynes, was charged by indictment with two counts of
aggravated robbery, a first-degree felony. See TEX. PENAL CODE ANN. § 29.03(a)(1),
(a)(3), (b) (West 2011). A jury convicted Tynes on both counts and assessed punishment
at sixty years’ incarceration in the Institutional Division of the Texas Department of
Criminal Justice with a $10,000 fine for each count. The trial court ordered the imposed
sentences to run concurrently. In three issues, Tynes argues that: (1) the evidence is
insufficient to support his conviction; (2) the trial court abused its discretion in
admitting the written statement of a witness, Adella Stanford; and (3) the evidence is
insufficient to support the assessment of court-appointed attorney’s fees because Tynes
is indigent. We affirm as modified.
I. BACKGROUND
This appeal pertains to an incident that transpired on the evening of December
21, 2009, at the home of Scott and Sheila Corbin. Sheila had just returned home with her
husband, Scott, after picking up their daughter from the movie theater when she was
approached by two men. Scott had already gone inside the house, and Sheila, a
disabled woman who used a walker, had gone back to the car to retrieve her cell phone
and debit card. The two men pulled her out of the car, pushed her down, and
demanded money. One of the men had a knife in his hand, and the other had a gun.
Sheila testified that she saw a third man, but it was hard to identify the males because it
was dark and the assailants wore masks. Sheila informed the men that she did not have
any money. The men then demanded that she give them her cell phone and her keys,
which she did. Sheila tried to stand up using her walker. One of the men, who Sheila
described as wearing a yellow-hooded sweatshirt, had a gun pointed at her head as she
stood up. At this time, Scott came to the glass door to see what was taking Sheila so
long. The man with the gun placed the gun to Sheila’s back and pushed her up the
steps towards the house. The third male was instructed to “go out front and keep
watch” while the other two who had weapons entered the Corbins’ house.
Upon entering the house, the men demanded that the Corbins give them their
jewelry, money, and Sheila’s purse. Sheila told the men that she only had $100 in her
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account, and the man with the gun responded by hitting her on the head with the butt
of the gun and saying, “Bitch, I’m going to clean your account out.” The man with the
gun later pushed Sheila to the ground. While on the ground, Sheila observed the
second male, who had a knife in his hand and wore a black-hooded sweatshirt, assault
Scott. Sheila described the situation as follows:
The guy in the black hoody had my husband in the kitchen, just
kept poking at him with a real cheap black-handled steak knife, just kept
jabbing him in the face. My husband is, like, jumping around, you know.
They kept saying, “Give me your money, give me your jewelry.” My
husband is telling him, “We don’t have any money. We don’t have any
jewelry.” I’m laying [sic] there on the floor, and I had on two gold chains
and then two gold rings, and he bent down—the guy holding the gun on
me bent down and ripped them off my neck, and apparently had dropped
one—had dropped a necklace and half the chain. Then he ripped my
rings off. Then the other guy kept, you know, insisting, “Where is your
money, where is your jewelry?” They kept saying, “Where is your
purse?” I told them it was back in the back bedroom. I’m laying [sic]
there on the floor with a gun to my head. You know, I’m listening to all
this commotion going on. They forced my husband back to the—one guy
forced my husband back to the back bedroom, and then I don’t know
what all went on there, other than before they get to the hallway—my
daughter is in the bathroom. My husband yells, you know, “Lock the
door.” I don’t even think they knew she was there until he said that, and
then they did try to force their way in, but they didn’t get in.
Scott testified that, shortly after entering their house, the man in the yellow
hoody hit him in the face with his gun when Scott said, “We don’t have anything.” As a
result, Scott sustained lacerations to his head, which caused bleeding down his face. 1
Later, the man with the knife led Scott to a bedroom where they saw Sheila’s purse.
The assailant asked Scott, “What’s that,” and Scott “grabbed the purse and slung
1 The State proffered photographs of both Sheila and Scott to document the injuries they
sustained during the robbery. Sheila had a laceration on her head, which was bleeding, bruising to her
neck from when one of the assailants ripped her necklaces off of her neck, and lacerations on her leg.
Scott had several lacerations on his forehead, which caused substantial bleeding down the side of his face.
Tynes v. State Page 3
everything . . . to try to scatter the contents to make things harder on them.” After
doing that, the assailant hit Scott with his hand and ordered Scott give up his wallet.
Scott complied, and he and the assailant traveled down the hallway of the house,
passing a bathroom. Knowing that his daughter was in the bathroom, Scott instructed
his daughter to lock the door. The assailant tried to break in to the bathroom, but he
was unsuccessful.
Then, the assailant and Scott returned to the living room near where Sheila was
lying. Scott recounted that he was hit on the head with a gun once again. Thereafter,
the assailants threatened to kill the Corbins if they called the police, and subsequently
left the house in the Corbins’ car, a PT Cruiser, which had been already started by the
third male who was keeping watch. As the assailants backed down the driveway in the
Corbins’ car, they hit a tree and drove through a portion of the Corbins’ yard.
Police were immediately called to the scene. Statements were taken, and the
Corbins were taken to the hospital for treatment. The Corbins’ PT Cruiser was found
less than half a mile away from the Corbins’ house.2 DNA tests were conducted on
various parts of the vehicle, including the inside handle of the driver’s-side car door
and the steering wheel. Comparing the DNA obtained from the Corbin’s vehicle with
buccal swabs taken from Tynes, police found Tynes’s DNA on the inside handle of the
driver’s-side door and on the steering wheel of the PT Cruiser. Both Scott and Sheila
2 A photograph of the recovered PT Cruiser was admitted into evidence and revealed damage to
the rear of the vehicle, which resembled damage that would be associated with hitting a tree.
Tynes v. State Page 4
testified that they did not know Tynes and that Tynes had never been a passenger in
their car before that night.
Two days after the incident, police received a call from Adella Stanford
regarding various items found in her trash can. Among the items found in Stanford’s
trash can was Sheila’s wallet with her driver’s license and social security card and a
knife. DNA tests were conducted on the items found in Stanford’s trash can. Scientists
were unable to obtain sufficient DNA profiles from most of the items; however, Tynes’s
partial DNA profile was found on Sheila’s wallet, and the knife contained the partial
DNA profile of one of Tynes’s associates—Cameron Harrison.
After recovering the items from her trash can, Stanford spoke with police.
Officer Rondell Blatche’ of the Waco Police Department testified, without objection, that
Stanford identified three males that could have put the items in her trash can. Stanford
told Officer Blatche’ that Cameron Harrison, Trey Matthews, and “another boy . . . she
knew as Clint” had been hanging around her house shortly after the robbery occurred
and were acting suspiciously. Officer Blatche’ then took a written statement from
Stanford, wherein she stated the following:
On 12/21/09 at auround [sic] 9:00 p.m. or later[,] Adella Stanford
was at 3700 N. 22nd when three guys by the name of Cameron Harrison,
Trey Mathews [sic], and Clint where [sic] in my front yard acting
suspicious and I told them to get off of my property. They had on blue
jeans with hoodies wich [sic] one that stood out was yellow. When they
left[,] they went walking back towards [P]ark [L]ake Dr.
Officer Blatche’ further testified that Stanford told him that one of the males that she
saw that night was wearing a black hoody and another was wearing a yellow hoody.
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According to Officer Blatche’, Stanford’s description of the males on her property that
evening matched the descriptions provided by the Corbins. Stanford also indicated that
she had seen Cameron, Trey, and Clint together many times and that their hanging out
“wasn’t nothing [sic] unusual.” Stanford testified that she knew Cameron, Trey, and
Clint because “[t]hey used to play with my boys, come to my house.”
Tynes was subsequently indicted with two counts of aggravated robbery—one
count pertaining to Scott and the other pertaining to Sheila. See id. § 29.03(a)(1), (a)(3).
Tynes requested a court-appointed attorney, indicating that he was indigent. The trial
court concluded that Tynes was indeed indigent and appointed him counsel. Tynes
elected for a jury trial on guilt-innocence and punishment; trial commenced on
February 15, 2011.
At the conclusion of the evidence, the jury convicted Tynes of the charged
offenses and assessed punishment at sixty years’ incarceration for each count. The trial
court ordered the sentences to run concurrently and certified Tynes’s right to appeal.
This appeal followed.
II. STANFORD’S WRITTEN STATEMENT
In his second issue, Tynes contends that the trial court abused its discretion in
admitting Stanford’s written statement because the probative value of the evidence was
outweighed by its prejudicial effect. In particular, Tynes argues that the evidence
“accomplished next to nothing that was legitimate, but it overly emphasized the
importance of hoodies in an otherwise paper-thin case.” The State counters that the
trial court properly overruled Tynes’s rule 403 objection. See TEX. R. EVID. 403. The
Tynes v. State Page 6
State also asserts that even if it was error to admit the evidence, such admission was
harmless because the evidence was cumulative of other unobjected-to evidence.
At trial, Stanford initially refused to admit that she made a written statement to
police. On appeal, the State characterizes Stanford as a “very uncooperative witness.”
Because she refused to admit to the truth of the statements made in her written
statement to police, the State proffered her written statement for admission into
evidence and for purposes of impeachment. The trial court admitted Stanford’s written
statement into evidence over Tynes’s rule 403 objections. See id.
As noted above, Tynes argues on appeal that Stanford’s written statement should
not have been admitted because its probative value was outweighed by its prejudicial
effect. We conclude that any error in the admission of Stanford’s written statement was
harmless because the same evidence was introduced without objection several times
during the trial. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding
that any error in the admission of hearsay testimony was harmless in light of other
properly admitted evidence proving the same fact); see also Lane v. State, 151 S.W.3d 188,
193 (Tex. Crim. App. 2004) (“‘An error [if any] in the admission of evidence is cured
where the same evidence comes in elsewhere without objection.’”) (quoting Valle v.
State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); Leday v. State, 983 S.W.2d 713, 718
(Tex. Crim. App. 1998) (“Our rule . . . is that overruling an objection to evidence will not
result in reversal when other such evidence was received without objection, either
before or after the complained-of ruling.”). In fact, when impeached with her written
statement, Stanford admitted, without objection, to the truth of the statements made in
Tynes v. State Page 7
the document. Furthermore, Officer Blatche’ testified, without objection, that he took
Stanford’s written statement and testified about the statements Stanford made to him,
which mirrored the information contained in her written statement.
The court of criminal appeals has specifically stated that, for an issue pertaining
to the admission of evidence to be preserved, a proper objection must be made “‘each
time the inadmissible evidence is offered or [appellant should] obtain a running
objection.’” Lane, 151 S.W.3d at 193 (quoting Valle, 109 S.W.3d at 509). Here, Tynes did
not object to each time the alleged inadmissible evidence was offered, nor did he obtain
a running objection. Therefore, based on the foregoing, we cannot say that Tynes has
demonstrated that the trial court abused its discretion in admitting Stanford’s written
statement into evidence. See Resendiz, 112 S.W.3d at 546; see also Moses, 105 S.W.3d at
627. We overrule his second issue.
III. SUFFICIENCY OF THE EVIDENCE
In his first issue, Tynes asserts that the evidence is insufficient to establish that
he: (1) threatened injury as a principal to the offense; (2) committed theft as a principal
to the offense; (3) caused bodily injury as a principal to the offense; (4) used or
possessed any weapon as a principal to the offense; (5) intended to be a party to any
offense; or (6) solicited, encouraged, aided, or attempted to aid in the commission of the
offense.
A. Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
Tynes v. State Page 8
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to 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. "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." Hooper, 214 S.W.3d at 13.
Lucio v. State, No. AP-76,020, ___ S.W.3d ___, ___, 2011 Tex. Crim. App. LEXIS 1222, at
**43-44 (Tex. Crim. App. Sept. 14, 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 2792-93, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial
evidence are treated equally: "Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Finally, it is well established that the factfinder is entitled to judge the credibility of
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).
Tynes v. State Page 9
B. Applicable Law
The sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically-correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). “Such
a charge is one that accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Villarreal, 286 S.W.3d at 327; see Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997).
As indicted in this case, a person is guilty of aggravated robbery if he “commits
robbery” and “uses or exhibits a deadly weapon.” TEX. PENAL CODE ANN. § 29.03(a)(2).
A person commits robbery “if, in the course of committing theft . . . and with intent to
obtain or maintain control of the property, he intentionally, knowingly, or recklessly
causes bodily injury to another or intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death.” Id. § 29.02(a) (West 2011). A
person commits theft if he “unlawfully appropriates property with intent to deprive the
owner of property.” Id. § 31.03(a) (West Supp. 2011).
The jury charge also contained language pertaining to the law of the parties. A
person commits the offense as a party if, “acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense.” Id. § 7.02(a)(2) (West 2011). In determining
whether the evidence is sufficient to prove that a defendant participated as a party in
Tynes v. State Page 10
committing an offense, we look to “events before, during, and after the commission of
the offense.” Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). If the evidence
shows that the defendant was present at the scene and encouraged the commission of
the offense by acts, words, or other agreement, the evidence is sufficient to convict
under the law of the parties. Wooden v. State, 101 S.W.3d 542, 547-48 (Tex. App.—Fort
Worth 2003, pet. ref’d). Further, evidence of flight from the scene and furtive behavior
is indicative of guilt. Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007); see also
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
C. Discussion
In the instant case, Tynes does not dispute that a robbery occurred. Instead,
Tynes contends that the evidence does not demonstrate that he participated in the
crime.
We find that the record contains sufficient evidence implicating Tynes’s
involvement in the robbery. Specifically, the record demonstrates that two men, one
wearing a black-hooded sweatshirt and the other wearing a yellow-hooded sweatshirt,
confronted and assaulted the Corbins while taking, among other things, jewelry, credit
cards, Sheila’s wallet, and the Corbins’ PT Cruiser. During the commission of these
acts, the men used a knife and a handgun—items identified at trial as deadly weapons.
According to Sheila, a third male was instructed to remain outside the Corbins’ house to
serve as a lookout and as the getaway driver. After taking the property and assaulting
the Corbins, the men got into the Corbins’ PT Cruiser and drove away. However,
shortly thereafter, the car was abandoned, and Stanford observed three males
Tynes v. State Page 11
congregating suspiciously on her property approximately fifteen minutes after the
robbery transpired. Stanford recalled that one of the males was wearing a yellow-
hooded sweatshirt and another was wearing a black-hooded sweatshirt—clothing that
matched the Corbins’ description of the clothing worn by the assailants. Stanford
identified the three males as Tynes and two of his associates, Matthews and Harrison.
Stanford was certain of their identities because the men were once friends of her
children. Thereafter, Stanford discovered several items in her trash can. Among the
items found were a knife that matched the description of the knife used in the
commission of the robbery and Sheila’s wallet, driver’s license, and social security card.
Police tested the items found in Stanford’s trash can and discovered that Tynes’s partial
DNA profile was on Sheila’s wallet, and the knife contained Harrison’s partial DNA
profile. The police also tested the abandoned PT Cruiser and discovered that Tynes’s
DNA was on the inside handle of the driver’s-side door and on the steering wheel.
Both Sheila and Scott denied knowing Tynes and testified that Tynes had never been a
passenger or driver in their PT Cruiser prior to the night of the incident.
Nevertheless, Tynes contends that: (1) the stolen property found in Stanford’s
trash can could have been placed there by someone else; (2) there is no proof as to when
Tynes’s DNA was left inside the Corbins’ PT Cruiser; and (3) the State “proved nothing
more than presence.” For several reasons, the evidence and governing case law
undermine Tynes’s arguments.
First, we note that it was not incumbent upon the State to exclude “every
reasonable hypothesis other than guilt” for the evidence to be considered sufficient. See
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Geesa v. State, 820 S.W.2d 154, 157-61 (Tex. Crim. App. 1991), overruled on other grounds
by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000); see also Lopez v. State, 267
S.W.3d 85, 97-98 (Tex. App.—Corpus Christi 2008, no pet.) (citing Harris v. State, 133
S.W.3d 760, 763-65 (Tex. App.—Texarkana 2004, pet. ref’d); Richardson v. State, 973
S.W.2d 384, 387 (Tex. App.—Dallas 1998, no pet.) (“[T]he mere existence of an
alternative reasonable hypothesis does not render the
evidence . . . insufficient . . . . [E]ven when an appellant identifies an alternative
reasonable hypothesis raised by the evidence, the standard of review remains the
same.”); Orona v. State, 836 S.W.2d 319, 322 (Tex. App.—Austin 1992, no pet.)). Second,
no evidence was presented suggesting that someone else placed the Corbins’ personal
property in Stanford’s trash can. Further, both Sheila and Scott testified that Tynes had
never been inside their vehicle prior to the night of the incident; therefore, the jury was
rational to infer that Tynes’s DNA was left inside the PT Cruiser on the night of the
incident. And finally, the knife found in Stanford’s trash can which matched the
description provided by the Corbins as the knife used in the robbery had Harrison’s
DNA on it, and Stanford observed: (1) Harrison, Matthews, and Tynes acting
suspiciously on her property shortly after the incident; and (2) that two of the males
were wearing hooded sweatshirts that matched the assailants’ clothing descriptions
provided by the Corbins.
Looking as we must to the events before, during, and after the incident, we
conclude that the jury was rational in determining that an aggravated robbery had been
committed and that Tynes was either one of the assailants who entered the Corbins’
Tynes v. State Page 13
house or the lookout and driver. See TEX. PENAL CODE ANN. §§ 29.02(a), 29.03(a)(2),
31.03(a); see also Clayton, 235 S.W.3d at 780; Powell, 194 S.W.3d at 507; Guevara, 152
S.W.3d at 50; Wooden, 101 S.W.3d at 547-48. As such, we further conclude that the State
proved that Tynes was more than merely present at or near the scene of the crime and
that Tynes actively solicited, encouraged, directed, aided, or attempted to aid others in
the commission of the robbery. See TEX. PENAL CODE ANN. § 7.02(a)(2). Accordingly,
we affirm Tynes’s conviction under the law of the parties. See id.; see also Powell, 194
S.W.3d at 507; Wooden, 101 S.W.3d at 547-48. Tynes’s first issue is overruled.
IV. COURT-APPOINTED ATTORNEY’S FEES
In his third issue, Tynes complains that there is insufficient evidence to support
the trial court’s assessment of court-appointed attorney’s and investigator’s fees.
Specifically, Tynes argues that because he was determined to be indigent before trial,
the trial court improperly ordered him to pay $3,427.50 in court costs, which included
attorney’s fees in the amount of $2,998.50.
For the purposes of assessing attorney’s fees, once an accused is found to be
indigent, he is presumed to remain so throughout the proceedings absent proof of a
material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p)
(West Supp. 2011); see also Mayer v. State, No. 10-10-00302-CR, 2011 Tex. App. LEXIS
1369, at *6 (Tex. App.—Waco Feb. 23, 2011, pet. ref’d) (mem. op., not designated for
publication). Furthermore, the record must reflect some factual basis to support the
determination that Tynes was capable of paying all or some of his attorney’s fees at the
time of the judgment. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2011);
Tynes v. State Page 14
Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see also
Stevenson v. State, No. 10-09-00358-CR, 2011 Tex. App. LEXIS 8302, at *3 (Tex. App.—
Waco Oct. 19, 2011, no pet. h.) (mem. op., not designated for publication).
Here, the State concedes that there is insufficient evidence in the record to
support the assessment of court-appointed attorney’s and investigator’s fees against
Tynes. In such cases, the proper remedy is to reform the judgment by deleting the
attorney’s fees and investigator’s fees. See Mayer v. State, 309 S.W.3d 552, 557 (Tex.
Crim. App. 2010); see also Cain v. State, No. 10-11-00045-CR, 2011 Tex. App. LEXIS 8159,
at *11 (Tex. App.—Waco Oct. 12, 2011, no pet. h.) (mem. op., not designated for
publication) (modifying the judgment to delete the finding ordering appellant to pay
his court-appointed attorney’s and investigator’s fees). We therefore sustain Tynes’s
third issue and modify the judgment to delete the finding that orders Tynes to pay his
court-appointed attorney’s and investigator’s fees.
V. CONCLUSION
We modify the trial court’s judgment to delete the finding that orders Tynes to
pay his court-appointed attorney’s and investigator’s fees. We affirm the judgment as
modified.
AL SCOGGINS
Justice
Tynes v. State Page 15
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed December 14, 2011
Do not publish
[CR25]
Tynes v. State Page 16