Lacey Jr., Theron Lecinq v. State ( 2013 )

AFFIRMED as MODIFIED; and Opinion Filed June 28, 2013.
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-00755-CR
No. 05-11-00756-CR
THERON LECINQ LACEY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F08-20873-S, F09-61076-S
MEMORANDUM OPINION
Before Chief Justice Wright 1 and Justices Lang-Miers and Fillmore
Opinion by Justice Lang-Miers
Appellant Theron Lecinq Lacey, Jr. appeals from two convictions for aggravated robbery
with a deadly weapon. In one issue on appeal, appellant argues that the trial court violated his
constitutional privilege against self-incrimination by allowing the State to read into evidence a
portion of appellant’s testimony during the punishment phase of a previous trial on another
charge. We modify the trial court’s judgments to correct clerical errors and affirm as modified.
1
Due to the retirement of the Honorable Mary Murphy from this Court on June 7, 2013, Chief Justice Carolyn Wright participated in the
issuance of this Memorandum Opinion. See TEX. R. APP. P. 41.1(a).
BACKGROUND
Appellant was charged by indictment with two aggravated robberies with a deadly
weapon. One offense involved the aggravated robbery of the owner of a wine and beer store.
The second offense involved the aggravated robbery of an employee of a tobacco shop.
Appellant pleaded not guilty to both offenses and they were tried together to a jury. During the
trial, the State offered into evidence a portion of appellant’s testimony from the punishment
phase of a previous trial where he was convicted of aggravated robbery. In that previous
testimony, appellant waived his privilege not to testify and testified on his own behalf seeking
leniency from the jury. As part of his testimony in that earlier trial, he confessed to the two
offenses charged here. The defense objected in this trial that admitting that testimony would
abridge appellant’s Fifth Amendment privilege under the United States Constitution.
In response to the objection, and after asking the State about the applicability of the
limited purpose doctrine, the trial judge stated that he had compared Simmons v. United States,
390 U.S. 377, 394 (1968), and Crosson v. State, 36 S.W.3d 642, 643–45 (Tex. App.—Houston
[1st Dist.] 2000, no pet.), with Ramirez v. State, 74 S.W.3d 152, 154–56 (Tex. App.—Amarillo
2002, pet. ref’d). The court further stated that “in Ramirez defendant testified at a probation
revocation hearing and the court of criminal appeals later opined that [rule of evidence
801(e)(2)(A)] would allow the introduction of those statements at the probation revocation.” The
court concluded that “in this case the situation is analogous” because “the punishment portion”
of the previous trial involving appellant “is similar to the probation revocation.” The court ruled
that appellant’s testimony at the punishment phase of the previous trial was admissible under rule
of evidence 801(e)(2)(A). See TEX. R. EVID. 801(e)(2)(A). The defense responded that the
court’s ruling that the prior testimony was admissible under rule 801(e)(2)(A) was an
“evidentiary analysis” and “improper” and that the proper analysis was a constitutional analysis
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based on the Fifth Amendment to the United States Constitution as applicable to the states
through the Fourteenth Amendment. The court then responded that, although “it would appear
on its face that it is simply an evidentiary argument[,]” the court had “looked at it from both
sides” and “looked at it in the context under the limited purpose doctrine[.]” The defense then
argued that the limited purpose doctrine “is still a valid consideration and valid analysis of a
situation such as this[.]” The defense asserted that “at the point in time that the defendant
testified in the last proceeding he had no motive to fully expand and develop the testimony on
these other issues, he was simply up there, as the Court said, in an effort to try to mitigate his
punishment.” The defense contended that appellant’s previous testimony had not been “fully
developed, fully adduced and cross examined” and argued that admission “would be wholly
improper.” The court overruled the defense’s objection, allowed the defense a continuing
objection, and allowed the State to read the testimony into the record.
In the testimony from the punishment phase of the previous trial, appellant admitted that
he “went into the Pipe[ D]reams and demanded money” with a gun and, although he did not
intend to shoot the person who worked there, he “did shoot at him[.]” He also testified that, two
days earlier, he “went in that wine store and . . . pulled that gun” “at a woman by herself” and
“demanded her livelihood and her money[.]”
The jury convicted appellant of both offenses, and the court set his punishment at thirty-
years’ imprisonment for the first offense and seventy-five years’ imprisonment for the second
offense. On appeal, appellant argues that the trial court violated his constitutional privilege
against self-incrimination by allowing the State to read into evidence portions of his testimony
from the punishment phase of the previous trial. 2
2
The State contends that, as of the date the State filed its brief, the clerk’s record for appellate case number 05-11-00756-CR did not
contain a certification of appellant’s right to appeal and that appellant’s appeal of that cause must be dismissed if the certification is not part of
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STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s decision to admit evidence for an abuse of discretion. McCarty
v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). We will uphold a trial court’s decision to
admit evidence when it is reasonably supported by the record and correct under any theory of
law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003).
Hearsay is a statement, other than one made by the declarant while testifying at trial or
hearing, that is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Hearsay
statements are not admissible except as provided by statute, the rules of evidence, or a rule
prescribed pursuant to statutory authority. TEX. R. EVID. 802. However, a statement is not
hearsay if it is offered against a party and is the party’s own statement. TEX. R. EVID.
801(e)(2)(A); see Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999).
Under the Fifth Amendment to the United States Constitution—which is binding on the
states through the Fourteenth Amendment—and a parallel provision in the Texas Constitution, a
person has the privilege to avoid self-incrimination and shall not be compelled to give evidence
against himself. Chapman v. State, 115 S.W.3d 1, 5 (Tex. Crim. App. 2003); Reese v. State, 877
S.W.2d 328, 335 (Tex. Crim. App. 1994). But a person may waive this constitutional privilege if
he does so voluntarily, knowingly, and intelligently. Brumfield v. State, 445 S.W.2d 732, 735
(Tex. Crim. App. 1969). “And it is well established that when an accused voluntarily takes the
stand he waives his privilege against self-incrimination.” Id.
ADMISSION OF PREVIOUS TESTIMONY
Appellant argues that the trial court violated his privilege against self-incrimination by
admitting the testimony he gave at the punishment phase of the previous trial because “the
the record. See TEX. R. APP. P. 25.2(d). But after the State filed its brief, the trial court clerk submitted a supplemental clerk’s record containing
the certification. See TEX. R. APP. P. 34.5(c).
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testimony was given for a limited purpose in the prior proceeding” “in order to mitigate the
punishment in that case.” The State argues that the trial court did not violate appellant’s
privilege against self-incrimination because appellant waived this privilege when he voluntarily
took the stand and testified in his prior trial. We agree with the State.
Appellant argues that the limited purpose doctrine supports his position. That doctrine,
established by Simmons, 390 U.S. at 394, and other state and federal cases, “was formulated so
that an accused is not required to surrender one constitutional right in order to gain the benefit of
another.” Nelson v. State, 765 S.W.2d 401, 403 (Tex. Crim. App. 1989). Specifically, Simmons
held that when a defendant testified to support a motion to suppress evidence based on the Fourth
Amendment, his testimony was not later admissible against him on the issue of guilt unless he
did not object to its admission. Simmons, 390 U.S. at 394; see Crosson, 36 S.W.3d at 645 (citing
Simmons and concluding that ruling during suppression hearing “was constitutional error
because a defendant cannot be made to give up one constitutional right in order to assert
another”). But the present case, unlike Simmons and similar cases, does not involve the accused
surrendering the constitutional privilege not to testify to assert another constitutional right. See
Nelson, 765 S.W.2d at 402–03 (concluding that “the ‘limited purpose’ doctrine of Simmons and
like decisions, state and federal, may well be inapposite” to issue of whether accused’s testimony
in preliminary hearing out of jury’s hearing during guilt/innocence stage was properly admissible
during punishment stage and discussing the doctrine’s purpose of allowing an accused to avoid
surrendering one constitutional right to assert another); Anderson v. State, 659 S.W.2d 932, 935
(Tex. App.—Fort Worth 1983, no pet.) (comparing Simmons and concluding that questions on
cross-examination did not violate the Fifth Amendment and that “this is not a situation where
appellant was compelled to surrender one constitutional right in order to assert another
constitutional right”).
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Rather, as the trial court recognized, the present case is analogous to Ramirez, 74 S.W.3d
at 154–56. Ramirez committed an offense while he was on probation for a prior offense. Id. at
154. After his arrest for the later offense, the State filed a motion to revoke Ramirez’s probation.
At the probation revocation hearing, Ramirez testified in his own defense about the new offense.
Id. At the subsequent and separate trial for the later offense, the court admitted Ramirez’s
testimony from the probation revocation hearing. Id. Ramirez argued on appeal that the trial
court erred in admitting his testimony from the probation revocation hearing under the hearsay
exception in rule of evidence 801(e)(2)(A) without considering how its admission violated his
privilege against self-incrimination under the United States and Texas Constitutions. Id. The
appellate court concluded that the statements were not hearsay under rule of evidence
801(e)(2)(A) and that admission of the statements did not violate the appellant’s privilege against
self-incrimination. Id. at 155–56. The court held that the cases Ramirez cited, including
Crosson, 36 S.W.3d at 645, were distinguishable and that Ramirez did “not cite any cases that
involve the admission of testimony from a prior revocation hearing where a defendant
voluntarily testified on his own behalf and we have found none.” Ramirez, 74 S.W.3d at 155–
56. The court concluded that, when Ramirez voluntarily testified in his defense at the probation
revocation hearing, he waived his privilege against self-incrimination and the trial court did not
err by admitting that testimony. Id. at 156; see also Chavez v. State, 508 S.W.2d 384, 386 (Tex.
Crim. App. 1974) (“[A]n accused, taking the stand on his own behalf, waives the [Fifth
Amendment] privilege, so that his testimony may be used against him at a subsequent trial of the
same case.”); Wallace v. State, 707 S.W.2d 928, 934 (Tex. App.—Texarkana 1986), aff’d on
other grounds, 782 S.W.2d 854 (Tex. Crim. App. 1989) (same). But see Nelson, 765 S.W.2d at
409 (Teague, J., concurring) (criticizing Chavez). We conclude that the trial court did not err in
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admitting the testimony appellant gave at the punishment phase of the prior trial. We resolve
appellant’s sole issue against him.
MODIFICATION OF JUDGMENTS
The trial court’s judgment in case number 05-11-00756-CR is entitled “Judgment of
Conviction by Court—Waiver of Jury Trial” and indicates that appellant pleaded guilty and that
the terms of plea bargain were open. The record indicates, however, that appellant pleaded not
guilty, his case was tried to a jury, and no plea bargain was involved. In addition, the judgments
in case number 05-11-00755-CR and case number 05-11-00756-CR misspell appellant’s name.
We conclude that these items reflected in the trial court’s written judgments were clerical errors.
This Court has the power to modify incorrect judgments to make the record speak the
truth when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30
(Tex. App.—Dallas 1991, pet. ref’d). And our authority to modify incorrect judgments “is not
dependent upon the request of any party, nor does it turn on the question of whether a party has
or has not objected in the trial court.” Asberry, 813 S.W.2d at 529–30.
We modify the trial court’s judgment in case number 05-11-00756-CR to indicate that the
judgment was by conviction of a jury, that appellant’s plea to the offense was not guilty, and that
the verdict of the jury was guilty, to delete reference to a plea bargain, and to correctly spell
appellant’s name as Theron Lecinq Lacey, Jr. We also modify the trial court’s judgment in case
number 05-11-00755-CR to likewise correctly spell appellant’s name.
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CONCLUSION
We resolve appellant’s sole issue against him, modify the trial court’s judgments, and
affirm the trial court’s judgments as modified.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110755F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THERON LECINQ LACEY, JR., Appellant On Appeal from the 282nd Judicial District
Court, Dallas County, Texas
No. 05-11-00755-CR V. Trial Court Cause No. F08-20873-S.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Chief Justice Wright and Justice Fillmore
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We MODIFY the trial court's judgment to correctly spell appellant’s name
Theron Lecinq Lacey, Jr.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 28th day of June, 2013.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THERON LECINQ LACEY, JR., Appellant On Appeal from the 282nd Judicial District
Court, Dallas County, Texas
No. 05-11-00756-CR V. Trial Court Cause No. F09-61076-S.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Chief Justice Wright and Justice Fillmore
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We MODIFY the trial court’s judgment to indicate that the judgment was by
conviction of a jury, that appellant’s plea to the offense was not guilty, and that
the verdict of the jury was guilty, to delete reference to a plea bargain, and to
correctly spell appellant’s name as Theron Lecinq Lacey, Jr.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 28th day of June, 2013.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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