Bradley Wayne Shipley v. State ( 2014 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00114-CR
BRADLEY WAYNE SHIPLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court
Upshur County, Texas
Trial Court No. 16,356
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Bradley Wayne Shipley was convicted by a jury of burglary of a habitation. He pled true
to the State’s enhancement paragraph and was sentenced to thirteen years’ imprisonment and
ordered to pay a $10,000.00 fine. On appeal, Shipley argues (1) that the evidence is insufficient
to support his conviction, (2) that the testimony of an accomplice witness was not sufficiently
corroborated, (3) that the State’s notice of enhancement filed after jury selection was untimely,
and (4) that the trial court erred in (a) failing to instruct the jury on the accomplice-witness rule,
(b) disallowing cross-examination of the accomplice, (c) allowing the State to impeach Shipley
about his jailhouse tattoos, and (d) admitting evidence of unadjudicated offenses allegedly
committed by Shipley while he was a juvenile.
We conclude that the evidence was sufficient to support Shipley’s conviction and that the
accomplice-witness testimony offered at his trial was sufficiently corroborated. As a result, the
trial court’s failure to give the accomplice-witness instruction did not egregiously harm Shipley.
The record demonstrates that the trial court allowed the cross-examination of the accomplice and
that the complaint about Shipley’s jailhouse tattoos was unpreserved. We find that the State’s
notice of enhancement was timely filed and that Shipley’s complaint regarding unadjudicated
juvenile offenses was not preserved. Consequently, we affirm the trial court’s judgment.
I. Shipley’s Conviction is Supported by Legally Sufficient Evidence
A. Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the jury’s verdict to determine whether any rational jury could have found the essential elements
2
of burglary of a habitation beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency under the
direction of the Brooks opinion while giving deference to the responsibility of the jury “to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing
Jackson, 443 U.S. at 318–19).
Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge “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.” Id.
Paragraph one of the State’s indictment alleged, and the State was required to prove, that
Shipley intentionally or knowingly entered Jose Antonio Olmos’ home without his effective
consent and with the intent to commit theft. See TEX. PENAL CODE ANN. § 30.02 (West 2011),
§ 31.03(a) (West Supp. 2013); Stine v. State, 300 S.W.3d 52, 56 (Tex. App.—Texarkana 2009,
pet. dism’d, untimely filed).
3
B. The Evidence
Immediately upon entering the front door of their Pittsburg, Texas, home on a November
morning, Olmos and his wife, Mary Ann Munoz, discovered that the home had been ransacked.
They heard a noise from the back door and rushed to investigate the sound. Olmos saw two men
jumping over their backyard fence carrying goods stolen from their home. Olmos gave chase on
foot, and Munoz jumped into the family truck in an attempt to apprehend the thieves by blocking
their path. Munoz managed to stop one thief, whom she identified at trial as her nephew, Angel
Ramirez.
Ramirez’ mother, also Munoz’ sister, had previously been married to Olmos. Ramirez,
who lived with Shipley in Gilmer, Texas, at the time of the burglary, had grown up in Olmos’
Pittsburg home and knew it well. Olmos had taken care of Ramirez and had provided for
Ramirez while he lived with him. After apprehending Ramirez, Munoz began cursing at him for
his ingratitude and disrespect toward Olmos. Munoz’ nephew-in-law, Kerry Eugene Tarter,
surrendered himself to Munoz as an accomplice so that Ramirez would not have to shoulder all
the blame for the crime.
As Munoz was dealing with Ramirez and Tarter, Olmos arrived on the scene. Olmos
knew someone must have transported Ramirez and Tarter from Gilmer to Pittsburg, so he
jumped into the truck Munoz had been driving and began to search for another accomplice.
Olmos chased a suspicious black truck that he did not recognize, but he was unable to catch up to
the truck and returned home.
4
Meanwhile, Munoz walked with Ramirez and Tarter back to her driveway. When they
arrived, she discovered a pair of abandoned blue gloves that were similar to the gloves Ramirez
and Tarter were wearing. Munoz was questioning Ramirez and Tarter at the end of her driveway
when a man driving a black Dodge truck almost ran her over. Munoz testified at trial that she
could clearly see the driver, whom she identified as Shipley. According to both Munoz and
Olmos, Ramirez and Tarter identified Shipley as the driver of the black Dodge truck and as an
accomplice in the burglary. Tarter’s fiancée, Valentina Marie Lugo, testified that she received a
call from Shipley after the incident informing her that Ramirez and Tarter had been captured.
Ramirez and Tarter were arrested by Officer David Thompson. David Cruce, an
investigating officer, conducted subsequent interviews at which time Ramirez and Tarter
admitted to the burglary. Thompson and Cruce also testified that Ramirez and Tarter implicated
Shipley in the burglary. According to Cruce, Tarter also admitted to stealing gloves from
Walmart on the morning of the burglary. Charles Wayne Blankenship, an assistant manager in
loss prevention at Walmart, pulled security footage from the day of the burglary. The footage,
which was played for the jury, showed that Tarter and Ramirez exited a parked black Dodge
truck and entered the store while the driver waited. Cruce ran the truck’s license plate, and
discovered that it was registered to Shipley’s father.
After reviewing the Walmart footage, Cruce went to Shipley’s home and knocked on the
door. Cruce testified that Shipley appeared nervous and lied by saying that he had been home
the entire day. Shipley was eventually arrested.
5
At Shipley’s trial, Tarter testified that he, Ramirez, Shipley, and all of their significant
others had gathered at Shipley’s home on the night before the burglary. According to Tarter,
Ramirez came up with the idea to rob Munoz and Olmos. Tarter further testified that he,
Ramirez, and Shipley developed a plan for the burglary at the gathering the night before.
Pursuant to the plan, Tarter walked to Shipley’s home where Ramirez was staying. The
trio climbed into Shipley’s truck and drove to Walmart where Ramirez and Tarter stole three
pairs of blue latex gloves. Tarter testified that Shipley parked across the street from the
Olmos/Munoz home in a way that would hide them from view while they waited for Olmos and
Munoz to leave. Munoz and Olmos’ neighbor, Harlan Taylor, testified that he saw Shipley’s
truck parked near a cemetery close to his house and that the truck would have been hidden from
Munoz’ and Olmos’ views.
When Olmos and Munoz left their home, Tarter, Ramirez, and Shipley ran to their
backyard. Tarter testified that Shipley broke a window on the rear of the home with a pipe
wrench, allowing entry into the home. When Olmos and Munoz returned home, Tarter testified
that he and Ramirez ran in the same direction and that Shipley ran in the opposite direction,
permitting his escape. Munoz testified that while she recovered some items taken from her
home, other items were still missing.
Alissa Scott, Shipley’s cousin, was at Shipley’s house with Ramirez, Tarter, and their
significant others on the night before the burglary. Scott testified that she overheard Ramirez
and Tarter asking Shipley to give them a ride to Olmos’ house. Scott testified that she did not
know about the burglary and that she believed Ramirez and Tarter were going to be working
6
around Olmos’ house in exchange for payment. According to Scott, Shipley said that he lied to
the police about being home all day.
Shipley testified at his own trial. He denied involvement in the burglary and claimed he
was dropping off Ramirez and Tarter so that they could work at Olmos’ house. Shipley testified
that he went to his dad’s house immediately after dropping them off, but returned to see what
time they needed to be picked up. According to Shipley, on his way back to Olmos’ house, he
saw Ramirez and Tarter being chased, concluded they had done something illegal, which he
wanted no part of, and returned home. Shipley claimed he did not stop to assist Ramirez and
Tarter because of his criminal record. He testified that he lied to police about the incident
because he was on community supervision.
C. Analysis
The evidence meets the State’s burden to prove that Shipley committed burglary of a
habitation. Olmos, Munoz, Cruce, Thompson, Tarter, and others all testified that Shipley was
involved in the burglary. Shipley admitted that he drove to Walmart and dropped Ramirez and
Tarter off at Olmos’ house. Tarter testified that Shipley used a pipe wrench to break the window
through which the burglars entered the home and that Shipley ran in the opposite direction from
Ramirez and him when they were discovered by Olmos. 1 Ramirez and Tarter were wearing blue
latex gloves when they were apprehended. An additional pair of blue latex gloves was found
discarded in the driveway. The jury was free to determine that this pair of gloves belonged to
Shipley. Munoz testified that Shipley attempted to run her over in his vehicle, an act inconsistent
1
Olmos testified that the entry was without his consent.
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with Shipley’s assertions to the jury that he fled and did not want to be involved in any
wrongdoing. Shipley admitted to lying to investigators about the incident.
It was the jury’s responsibility “to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper, 214
S.W.3d at 13. Viewing the evidence in a light most favorable to the verdict, we find the
evidence legally sufficient to establish that Shipley intentionally or knowingly entered Olmos’
home without his effective consent and with the intent to commit theft. We overrule Shipley’s
first point of error.
II. The Accomplice’s Testimony Was Sufficiently Corroborated
“A conviction cannot be had upon the testimony of an accomplice unless corroborated by
other evidence tending to connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission of the offense.” TEX. CODE
CRIM. PROC. ANN. art. 38.14 (West 2005). Shipley argues that Tarter’s accomplice-witness
testimony was not sufficiently corroborated.
Legal sufficiency standards of review are not applicable to a review of accomplice-
witness testimony under Article 38.14 of the Texas Code of Criminal Procedure because
corroboration of such testimony is a statutory requirement imposed by the Texas Legislature.
See id.; Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (citing Druery v. State,
225 S.W.3d 491, 498 (Tex. Crim. App. 2007)). Thus, a challenge of insufficient corroboration is
not the same as a challenge of insufficient evidence to support the verdict as a whole. Cathey v.
State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999).
8
When evaluating the sufficiency of corroborating evidence under Article 38.41, we
“‘eliminate the accomplice testimony from consideration and then examine the remaining
portions of the record to see if there is any evidence that tends to connect the accused with the
commission of the crime.’” Malone, 253 S.W.3d at 257 (quoting Solomon v. State, 49 S.W.3d
356, 361 (Tex. Crim. App. 2001)). The tends-to-connect standard does not present a high
threshold as the “evidence need not prove the defendant’s guilt beyond a reasonable doubt by
itself.” Id.; see Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.—Austin 2002, no pet.).
“Rather, the evidence must simply link the accused in some way to the commission of the crime
. . . .” Malone, 253 S.W.3d at 257. As the Texas Court of Criminal Appeals has stated,
No precise rule can be formulated as to the amount of evidence required to
corroborate. The non-accomplice evidence does not need to be in itself sufficient
to establish guilt beyond a reasonable doubt. Nor must the non-accomplice
evidence directly link the accused to the commission of the offense. While the
accused’s mere presence in the company of the accomplice before, during, and
after the commission of the offense is insufficient by itself to corroborate
accomplice testimony, evidence of such presence, coupled with other suspicious
circumstances, may tend to connect the accused to the offense. Even apparently
insignificant incriminating circumstances may sometimes afford satisfactory
evidence of corroboration.
Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996) (citations omitted).
Eliminating Tarter’s testimony does little to break Shipley’s connection with the
burglary. Shipley was seen on a surveillance video recording driving Ramirez and Tarter to the
Walmart parking lot. Cruce’s investigation revealed that three pairs of gloves were taken from
Walmart. Shipley admitted to driving Ramirez and Tarter to Olmos’ house. Ramirez and Tarter
were apprehended while wearing their gloves. Another pair of gloves was found in Olmos’
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driveway. While in the driveway, Munoz was almost run over by Shipley’s truck. Munoz
identified Shipley at trial as the driver of the truck. Munoz, Olmos, Cruce, and Thompson all
testified that Ramirez and Tarter identified Shipley as a participant in the burglary. Lugo
testified that Shipley called her after the burglary to inform her that “they had got caught,”
implying at the very least that Shipley had knowledge of some wrongdoing conducted by
Ramirez and Tarter. When questioned, Shipley initially lied to the police.
We conclude that the nonaccomplice testimony tends to connect Shipley with the
burglary, and, consequently, we overrule Shipley’s second point of error.
III. Lack of an Accomplice-Witness Instruction Was Not Egregiously Harmful
Shipley argues that he was entitled to an accomplice-witness jury instruction and that the
trial court erred in failing to submit such an instruction. Our review of alleged jury charge error
involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see
Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009); Ngo v. State, 175 S.W.3d 738, 743
(Tex. Crim. App. 2005). Initially, we determine whether an error occurred and then “determine
whether sufficient harm resulted from the charging error to require reversal . . . .” Abdnor, 871
S.W.2d at 731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on
reh’g); see also Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).
The trial court shall “deliver to the jury . . . a written charge distinctly setting forth the
law applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). It is
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undisputed that Tarter was an accomplice in the burglary. 2 Shipley was entitled to an
accomplice-witness instruction indicating that a conviction is not valid without corroboration of
an accomplice’s testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.14. A trial court must
instruct the jury sua sponte in accordance with Article 38.14 where applicable. Freeman v. State,
352 S.W.3d 77, 82–83 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding trial judge
erred in failing to instruct jury sua sponte that testimony of accomplice was required to be
corroborated in accordance with Article 38.14). Thus, the trial court erred in omitting the Article
38.14 instruction.
Next, we discuss whether the failure to include the accomplice-witness instruction
harmed Shipley. The level of harm an appellant must demonstrate as having resulted from the
erroneous jury instruction depends on whether the appellant properly objected to the error.
Abdnor, 871 S.W.2d at 732. “Where the evidence clearly shows a witness is an accomplice as a
matter of law, the trial court must so instruct the jury, but if the appellant fails to object to the
omission of the instruction, as in [Shipley’s] case, he or she must prove egregious harm to
prevail on appeal.” Hall v. State, 161 S.W.3d 142, 149 (Tex. App.—Texarkana 2005, pet. ref’d);
see Ngo, 175 S.W.3d at 743–44 (citing Almanza, 686 S.W.2d at 171); see also Bluitt v. State, 137
S.W.3d 51, 53 (Tex. Crim. App. 2004). In determining whether egregious harm has been shown,
we “must take the entire record into account, as in any Almanza analysis.” Casanova v. State,
383 S.W.3d 530, 534 (Tex. Crim. App. 2012).
2
A person who has been indicted for the same or a lesser-included offense is an accomplice as a matter of law.
Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
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“Under the ‘egregious harm standard,’ the omission of a corroborating-evidence
instruction may be rendered harmless if [evidence] other . . . than the testimony of the
accomplice witness or informant does exist that fulfills the purpose of the instruction.” Simmons
v. State, 205 S.W.3d 65, 77 (Tex. App.—Fort Worth 2006, no pet.) (citing Herron v. State, 86
S.W.3d 621, 632 (Tex. Crim. App. 2002)). “This is said to be so because the instruction merely
informs the jury that it cannot use the testimony of the accomplice or the informant unless it is
first determined that other evidence exists connecting the defendant to the offense.” Id. Once it
is determined that such other evidence exists, the purpose of the instruction may have been
fulfilled, but this is not always true. Id. If the corroborating nonaccomplice evidence is “‘so
unconvincing in fact as to render the State’s overall case for conviction clearly and significantly
less persuasive,’” the omission of the instruction can be egregiously harmful. Hall, 161 S.W.3d
at 150 (quoting Herron, 86 S.W.3d at 632).
“A harm analysis for error in omitting the cautionary instruction on the requirement of
corroborating evidence must be ‘flexible,’ taking into consideration both the existence and the
strength of such other evidence.” Simmons, 205 S.W.3d at 77 (citing Herron, 86 S.W.3d at 632).
“In determining the strength of corroborating evidence, we are instructed that we must examine
(1) its reliability or believability and (2) the strength of its tendency to connect the defendant to
the offense.” Id. (citing Herron, 86 S.W.3d at 632).
Here, we have previously determined that Tarter’s testimony was sufficiently
corroborated by testimony from Munoz, Olmos, Cruce, Thompson, and Lugo. Shipley’s
involvement in the burglary was additionally supported by physical evidence, including the
12
Walmart surveillance footage, the third pair of gloves found on the driveway, and the broken
window on the back side of the home. Taking the entire record into account, we conclude that
Shipley was not egregiously harmed by the trial court’s omission of the accomplice-witness
instruction.
We overrule Shipley’s third point of error.
IV. The Trial Court Did Not Prevent Cross-Examination of Tarter
During cross-examination, Tarter testified that, after speaking with his attorney, he
understood (1) that he had the right to remain silent, (2) that he did not have to testify, (3) the
importance of testifying truthfully, and (4) the ramifications of testifying falsely. When Tarter
was asked whether he would be offered a negotiated plea agreement in exchange for testimony,
the State lodged the following objection:
[By the State]: Your Honor, I’m going to object. It’s been asked and
answered already under direct testimony. Not only has this witness said he’s been
promised nothing, and he has not, and I as an officer of the court I’m going to put
that on the record. I’ve made no promises with him. Second, he’s already
testified that everything he testified today to this jury he gave a video statement of
these same facts that the defendant has from November 16th of this last year. So
this has been asked and answered.
The trial court overruled the objection, stating that the line of questioning was allowed during
cross-examination. 3
3
“There exists a long line of federal and state authority holding a pending criminal charge is an appropriate area of
cross-examination.” Carroll v. State, 916 S.W.2d 494, 499 (Tex. Crim. App. 1996).
13
The cross-examination continued as follows:
Q. [By defense counsel] Mr. Tarter, you understand that your
testimony today is going to be considered as far as what type of plea offer you’re
going to get in front of the district attorney’s office, you understand that.
A. Yes, I understand that’s going to be looked at, but I don’t know
what’s going to happen after today.
Q. Now you were told that there was no promise as far as what the
plea offer is going to be; is that correct?
A. It’s -- exactly.
Q. Okay. But you were told if you didn’t testify truthfully that, you
know, you may not have a good plea offer.
[By The State]: Your Honor, I’m going to --
A. The only way --
[By The State]: -- object because that’s calling for a
hearsay statement of what he’s been told outside the courtroom. That’s hearsay.
And number two, Counsel needs to be careful not to pierce the attorney/client
privilege that this defendant still has with his own client.
THE COURT: I’m going to sustain the first part of your
objection.
Shipley argues that the trial court’s second ruling “appear[ed] to shut off further cross
examination” into any potential bias Tarter might have had.
However, the trial court’s ruling sustained only a hearsay objection, and there is no
argument by Shipley that the hearsay objection was improperly sustained. 4 Instead of limiting
cross-examination regarding potential bias, the trial court encouraged it by reminding the parties
4
Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted” and is generally
not admissible unless allowed “by other rules prescribed pursuant to statutory authority.” TEX. R. EVID. 801(d), 802.
14
that the line of questioning was appropriate for cross-examination and by dismissing the State’s
warning of potential waiver of attorney/client privilege. Shipley’s fourth point of error is
without merit and is overruled.
V. Shipley Failed to Preserve Any Error Stemming from Cross-Examination
Concerning his Tattoos
During Shipley’s direct examination, he testified that he pled guilty to indecency with a
child when he was fourteen years old because he was young, scared, and did not have money for
an attorney. Thereafter, Shipley had been prosecuted for failure to register as a sex offender
because he had falsified his address on three separate occasions. Yet, Shipley explained the
falsifications to the jury by stating that he did not want to impact his current wife’s custody battle
with her ex-husband by letting the ex-husband discover that she was living with Shipley.
During cross-examination, Shipley testified that he was not involved in the burglary and
that he fled the scene and lied to police because of his criminal history. The State, in an effort to
rebut the impression of Shipley’s favorable character, pursued the following line of questioning:
Q. [By the State] Those tattoos you have covered up on your arms,
you have quite a few of them, don’t you?
A. Yes, sir, I do.
Q. Those tattoos, did you receive those in prison?
A. Some -- most of them, yes, sir.
Q. Okay. And those tattoos have meaning, don’t they?
A. Some of them.
15
Q. Okay. In fact you like to sign your text messages or excuse me
you like to sign statements in the past with certain gang affiliations, don’t you?
[By Defense Counsel]: Your Honor, I’m going to object
for relevance.
[By the State]: Goes to his credibility, Your Honor.
THE COURT: Overruled.
Q. . . . You have certain gang affiliations that you’ve acquainted
yourself in the penitentiary, correct?
A. No, sir, I’m not affiliated with any gang, sir.
....
Q. Which ones of those did you get in prison?
A. All of them except for one up here.
....
Q. Iron cross and swastika, I know what that means and you know
what that means, don’t you?
A. Yes, sir, I know exactly what it means.
Q. Okay. And it means what, tell the jury.
A. To me it means I don’t believe in any racial relationships, not
necessarily most people look at white supremacy or white pride. I mean, that’s
not how I look at it. That’s not -- that’s not its meaning to me, you know what
I’m saying.
Q. Mr. Shipley, it’s Aryan Brotherhood, isn’t it?
A. No, sir, it --
Q. And that is their gang sign that they have in the penitentiary and
they are a prison gang, Aryan Brotherhood. And you while in prison associated
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and affiliated yourself with that prison gang and that’s why you have the tattoo.
You’re wearing the colors, isn’t it?
A. No, a swastika goes for almost every Aryan gang and even white
people that’s not in the gang. I mean, it goes for almost every single one that they
have out there. It’s not just a swastika and iron cross. That has nothing to do with
-- doesn’t always mean it has anything to do with a gang. It’s not got a patch
around it. It’s not got a diamond around it or a square around it. The square and
the diamond is for AB and AC. This is plain.
Shipley complains that the trial court erred in allowing the State to question him about his
tattoos. 5 However, Shipley’s only relevance objection during this entire line of questioning was
a relevance objection related to the State’s suggestion of gang affiliation. 6 He did not object to
the State’s questions about his tattoos. The trial objection must comport with the issue raised on
appeal. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).
Furthermore, the State continued to ask questions about Shipley’s tattoos, without
objection, and Shipley continued to answer those questions at length. When a party receives an
adverse ruling, he must preserve error by objecting each time the evidence in question is offered
or obtain a running objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003);
5
“As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was
made to the trial court by a timely request, objection, or motion . . . .” TEX. R. APP. P. 33.1(a)(1).
6
‘“The general rule is that if a defendant exercises his right to testify he is subject to the same rules governing
examination and cross-examination as any other witness, whether he testifies at the guilt-innocence stage or at the
punishment stage of the trial.’” Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992) (quoting Cantu v. State,
738 S.W.2d 249, 255 (Tex. Crim. App. 1987)). “In Texas, the scope of cross-examination is wide open. Once an
appellant decides to testify at trial he opens himself up to questioning by the prosecutor on any subject matter which
is relevant.” Id. Relevant evidence is any evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be without the
evidence. TEX. R. EVID. 401. Credibility of a witness is relevant and is proper fodder for cross-examination. TEX.
R. EVID. 611(b). In certain circumstances, evidence of gang membership can bear on the witness’ veracity.
McKnight v. State, 874 S.W.2d 745, 746 (Tex. App.—Fort Worth 1994, no pet.) (citing United States v. Abel, 469
U.S. 45, 49 (1984)); but see Barlow v. State, 175 S.W.3d 839, 842–43 (Tex. App.—Texarkana 2005, pet. ref’d).
17
Ethington v. State, 819 S.W.2d 854, 859 (Tex. Crim. App. 1991); Martin v. State, 151 S.W.3d
236, 240 (Tex. App.—Texarkana 2004, pet. ref’d). While Shipley failed to obtain an adverse
ruling in the first place, even if he had, he would have waived the objection by failing to either
interpose it each time the evidence in question was offered or seek a running objection.
Shipley failed to object to the relevance of his jailhouse tattoos, as opposed to an alleged
gang affiliation. He also failed to object to the State’s continued questioning about his tattoos.
Consequently, Shipley’s testimony concerning his tattoos was admitted into evidence without
objection. We find that Shipley failed to preserve his fifth point of error for review and, as a
result, overrule it.
VI. The State Gave Timely Notice of Enhancement
The right to notice of the State’s intention to use prior convictions as enhancements is
rooted in due process. Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006). Thus,
prior convictions used as enhancements must be pled in some form so the defendant has an
opportunity to prepare a defense to them. Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim.
App. 2010); Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).
Two days before commencement of the guilt/innocence phase of trial, the State filed a
notice of its intent to enhance Shipley’s range of punishment based on an October 2007 final
felony conviction of failure to comply with sex-offender registration requirements. The notice
contained the cause number of the 2007 conviction, stated that the judgment was issued by the
188th Judicial District Court of Gregg County, and stated that Shipley had received a sentence of
four years’ imprisonment for the offense. Shipley argues that the timing of the State’s notice of
18
intent to enhance, which was filed after jury selection, constituted a violation of his due process
rights.
The notice was filed two days before the commencement of the guilt/innocence phase.
Shipley did not claim that he was surprised by the enhancement and did not request a
continuance to better prepare his defense. In fact, Shipley testified during the guilt/innocence
phase that he was convicted of failure to register as a sex offender in Gregg County in 2007 and
that he served a four-year term of imprisonment because he falsely provided his grandmother’s
address instead of his then-current address.
“[T]he determination of whether proper notice of enhancements was given does not
require that notice be given within a particular period of time before trial or before the guilt
phase is completed.” Pelache, 324 S.W.3d at 577. “[W]hen a defendant has no defense to the
enhancement allegation and has not suggested the need for a continuance in order to prepare one,
notice given at the beginning of the punishment phase satisfies” due process requirements.
Villescas, 189 S.W.3d at 294–95; Pelache, 324 S.W.3d at 577. Shipley’s testimony during
guilt/innocence established that he had no defense to the enhancement allegation, and he did not
ask for a continuance to prepare any defense. Therefore, due process was satisfied when the
State provided notice of intent to enhance after jury selection.
We overrule Shipley’s sixth point of error.
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VII. Shipley Preserved No Error Regarding the Admission of his Juvenile Records
The Texas Family Code establishes a procedure through which prosecuting attorneys can
obtain a criminal defendant’s juvenile adjudication records. TEX. FAM. CODE ANN. § 58.007(g)
(West Supp. 2013).
The State followed the necessary procedure and obtained Shipley’s records of his
juvenile adjudication. When the State sought to admit the juvenile records, Shipley objected that
the exhibit was inadmissible despite a prior stipulation to its admissibility. On appeal, Shipley
concedes that records of a criminal defendant’s juvenile adjudications are admissible during the
punishment phase of trial. Yet, for the first time on appeal, Shipley argues, without citation to
authority, that the records offered by the State in this case contained evidence of unadjudicated
offenses. 7
At trial, Shipley objected to the exhibit as inadmissible because “he was informed the
records were sealed.” The argument that the document contained some objectionable
information was neither one that the trial court considered, nor was it apparent from the context
7
Shipley’s juvenile records included, among other items, (1) the petition setting forth six counts of aggravated sexual
assault and six counts of indecency with a child, which allegedly occurred over a three-year period, (2) the grand
jury’s finding of probable cause that Shipley engaged in the acts alleged in the petition, (3) a Children’s Assessment
Center interviewer’s report containing the victim’s detailed statements about the alleged acts, (4) Shipley’s
stipulation of evidence and judicial confession to two counts of indecency with a child, (5) the judgment
adjudicating Shipley guilty of a single count of indecency with a child, (6) a detention order finding that Shipley was
likely to abscond, and (7) a directive to apprehend Shipley.
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of the discussion. Shipley’s point of error on appeal does not comport with the objection he
raised at trial. 8 See Swain, 181 S.W.3d at 367.
Moreover, “[t]he trial court is not required to sort through challenged evidence to
segregate the admissible from the inadmissible.” Ross v. State, 154 S.W.3d 804, 813 (Tex.
App.—Houston [1st Dist.] 2004, pet. ref’d) (citing Willover v. State, 70 S.W.3d 841, 847 (Tex.
Crim. App. 2002); see Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995)). Shipley
concedes that portions of the forty-five-page exhibit were admissible. Because Shipley failed to
refer the trial court to the portions of the exhibit which he deemed inadmissible, he failed to
preserve his complaint for appellate review. See id.; Whitaker v. State, 286 S.W.3d 355, 369
(Tex. Crim. App. 2009).
We overrule Shipley’s last point of error.
VIII. Conclusion
We affirm the trial court’s judgment.
Jack Carter
Justice
Date Submitted: February 19, 2014
Date Decided: March 14, 2014
Do Not Publish
8
The State argues that it could offer evidence of Shipley’s background and character as well as any extraneous crime
or bad act admissible under Article 37.07 of the Texas Code of Criminal Procedure.
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