Demondre Deshawn Holiness v. the State of Texas ( 2021 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00039-CR
DEMONDRE DESHAWN HOLINESS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 2027955
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
A Hopkins County jury convicted Demondre Deshawn Holiness of unlawful possession
of a firearm by a felon and assessed a punishment of ten years’ imprisonment. See TEX. PENAL
CODE ANN. § 46.04 (Supp.). On appeal, Holiness argues that the evidence is legally insufficient
to support the jury’s verdict of guilt and that definitions in the trial court’s jury charge
constituted an impermissible comment on the weight of the evidence.1 Because we find that
legally sufficient evidence supported the jury’s verdict and that there was no jury charge error,
we affirm the trial court’s judgment.
I. Factual Background
Police officers arrested Holiness after he engaged them in a high-speed chase in a vehicle
stolen from David Trigiani. Troy Farmer, a private citizen, testified that the stolen vehicle pulled
up in front of his house and that Holiness “jumped out, looked at [him], reached back in the
car[,] . . . grabbed something . . . [, and] then proceeded to run” from peace officers. According
to Farmer, Holiness was wearing a backpack as he fled.
Sean Hoffman, an officer with the Sulphur Springs Police Department, said that he had
heard from other officers that “something was thrown” and “a gun [was] mentioned later on as
[they] started searching.” Thomas Colt Patterson, a deputy with the Hopkins County Sheriff’s
Office (HCSO), testified that other officers at the scene of Holiness’s arrest asked him for help in
locating a weapon “that might have been stashed or thrown into the wood line or taller grass”
where the stolen vehicle was found. Patterson could not locate the gun.
1
In companion cause numbers 06-21-00037-CR and 06-21-00038-CR, Holiness appeals his convictions for
unauthorized use of a motor vehicle and evading arrest with a motor vehicle.
2
Jason Lavender, a deputy with the HCSO, testified that he found rifle ammunition and a
box of .38 caliber pistol ammunition in the stolen BMW. Trigiani testified that no one in his
family owned a gun and that he did not purchase any ammunition.
Kenneth Dean, a jail administrator for the HCSO, testified that the jail used a call
recording system to record inmate calls. Holiness’s jailhouse calls were admitted into evidence.
On one recording, Holiness can be heard telling a friend, “[G]o get my gun, bro,” and “[G]o get
my pole.” He can also be heard giving his friend directions to the gun’s location between two
particular bushes, stating that he does not want someone else to find it, and directing his friend to
get the “pole” before it rains. Shea Shaw, an HCSO investigator, testified that the term “pole” is
often used to refer to a gun.
II. Legally Sufficient Evidence Supported the Jury’s Verdict of Guilt
A. Standard of Review
“In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.); 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)). “Our rigorous legal
sufficiency review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323
S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction
of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve
3
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007)).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Id. at 298 (quoting Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury 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.’” Id. (quoting Malik, 953 S.W.2d at 240).
B. Analysis
Under the applicable statute and the indictment, to obtain a conviction, the State was
required to prove beyond a reasonable doubt that Holiness, (1) having been previously convicted
of a felony, (2) intentionally and knowingly (3) possessed a firearm (4) before the fifth
anniversary of his release from supervision under parole. See TEX. PENAL CODE ANN.
§ 46.04(a)(1). In its indictment, the State alleged that Holiness,
having been convicted of the felony offense of fraudulent use/possession of
identifying information, where the number of items are fewer than five, on the
21st day of March 2019, in cause number F-1921211, in the 292nd Judicial
District Court of Dallas County, Texas, in a case on the docket of said Court and
entitled The State of Texas v. Demondre Deshawn Holiness, intentionally or
knowingly possess[ed] a firearm before the fifth anniversary of the defendant’s
release from confinement following conviction of said felony.
4
The State introduced the March 2019 underlying state jail felony conviction resulting in a
sentence of six months’ confinement in state jail, as well as Holiness’s April 16, 2019, jail intake
photographs, which proved that Holiness was within five years of any release from confinement,
and Holiness admitted on dash camera footage that he was recently released from custody.2 Yet,
because no firearm was found, Holiness challenges the sufficiency of the evidence showing that
he possessed any firearm.
Holiness admits that a recorded jailhouse call, which was admitted into evidence,
established that he had a firearm. During the call, Holiness told his friend that he threw his
weapon on the ground and instructed him to go between two specific bushes to retrieve it.
Holiness told his friend to get the gun, which he called a “pole,” before it rained because he did
not want to lose it or have others find it. Holiness then instructed the friend to pawn the weapon.
Even so, Holiness argues that the corpus delecti rule precludes a finding that he possessed
a firearm based solely on his extrajudicial confession. See Miller v. State, 457 S.W.3d 919, 920
2
As we have previously noted,
Section 46.04 does not “necessarily require proof of the date of release from confinement in all
cases.” Tapps v. State, 257 S.W.3d 438, 445 (Tex. App.—Austin 2008), aff’d on other grounds,
294 S.W.3d 175 (Tex. Crim. App. 2009). As explained by our sister court:
Under Section 46.04, the period during which firearm possession by a felon is
forbidden begins on the date of conviction (the date one is “convicted of a
felony”) and ends on the fifth anniversary of the person’s release from
confinement or the person’s release from any form of supervision or parole,
whichever date is later. Thus, the minimum period that a felon will be
prohibited from possessing a firearm—assuming the felon is released from
confinement or supervision on the date of conviction or is never confined[—]is
five years from the date of conviction. The date of release from confinement is
necessary to determine the maximum length of this period specifically when the
period extends beyond five years from the date of conviction. The date of
release from confinement is not necessary when the alleged possession occurs
within five years of the date of conviction because the period of prohibition
extends for this duration in any event.
Id. (citations omitted).
Fagan v. State, 362 S.W.3d 796, 800 (Tex. App.—Texarkana 2012, pet. ref’d).
5
(Tex. Crim. App. 2015); see also Fisher v. State, 851 S.W.2d 298, 302 (Tex. Crim. App. 1993).
The term “corpus delicti” means the “harm brought about by the criminal conduct of some
person.” Gribble v. State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990). The Court of Criminal
Appeals has explained the corpus delicti rule, stating, “When the burden of proof is ‘beyond a
reasonable doubt,’ a defendant’s extrajudicial confession does not constitute legally sufficient
evidence of guilt absent independent evidence of the corpus delicti.” Hacker v. State, 389
S.W.3d 860, 865 (Tex. Crim. App. 2013).
The corroborating evidence requirement ensures that a person admitting to a crime is not
convicted without independent evidence that the crime occurred. Salazar v. State, 86 S.W.3d
640, 644 (Tex. Crim. App. 2002). “The corroborating evidence need not prove the underlying
offense conclusively; there simply must be some evidence that renders the commission of the
offense more probable than it would be without the evidence.” McCann v. State, 433 S.W.3d
642, 646 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Gonzales v. State, 190 S.W.3d
125, 131 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)). “[T]he extrajudicial statement itself
is not ignored. It may be used in connection with the other facts and circumstances to aid the
proof of the corpus delecti.” Harris v. State, 521 S.W.3d 426, 428 (Tex. App.—Amarillo 2017,
pet. ref’d) (citing Salazar v. State, 86 S.W.3d 640, 644–45 (Tex. Crim. App. 2002) (stating that
the rule is satisfied “if some evidence exists outside of the extra-judicial confession which,
considered alone or in connection with the confession, shows that the crime actually occurred”);
Watson v. State, 227 S.W.2d 559, 562 (Tex. 1950)). We must, therefore, consider whether
independent evidence existed to support the jury’s finding that Holiness possessed a firearm.
6
Here, Farmer testified that Holiness reached back into the stolen BMW to grab something
before running away. Although Farmer did not see the item grabbed, Hoffman testified that
other officers on the scene of the chase said that “something was thrown,” and Patterson was
asked for help in locating a weapon that “might have been stashed or thrown.” While neither
Trigiani nor his family owned any weapons, ammunition was found inside the stolen vehicle.
We find that this evidence corroborated Holiness’s statements that he threw a gun in between
two bushes during the chase. As a result, we find that sufficient evidence supported the jury’s
finding of guilt, and we overrule Holiness’s first point of error.
III. There Was No Jury Charge Error
“We employ a two-step process in our review of alleged jury charge error.” Murrieta v.
State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Initially, we determine whether error occurred and
then evaluate whether sufficient harm resulted from the error to require reversal.” Id. (quoting
Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871
S.W.2d at 731–32)).
“The purpose of the jury charge is to inform the jury of the applicable law and guide
them in its application to the case.” Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex.
Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). “A
trial judge must maintain neutrality in providing such information and guidance.” Id. (citing
Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003)). “He or she may not express any
7
opinion on the weight of the evidence or draw the jury’s attention to particular facts.” Id. (citing
Brown, 122 S.W.3d at 798, 801). To refrain from commenting on the weight of the evidence,
Article 36.14 of the Texas Code of Criminal Procedure provides that a jury
charge: (1) must be in writing; (2) must “distinctly set[] forth the law applicable
to the case[”;] (3) cannot “express[] any opinion as to the weight of the evidence”;
(4) may “not sum[] up the testimony”; and (5) cannot “discuss[] the facts or us[e]
any argument in [the] charge calculated to arouse the sympathy or excite the
passions of the jury.”
Id. (all but second alteration in original) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14).
“This rule is designed to prevent a jury from interpreting a judge’s comments as a judicial
endorsement or imprimatur for a particular outcome.” Id. (citing Bartlett v. State, 270 S.W.3d
147, 150 (Tex. Crim. App. 2008) (“[A] trial court should avoid any allusion in the jury charge to
a particular fact in evidence, as the jury might construe this as judicial endorsement or
imprimatur.”)).
Holiness argues that the trial court commented on the weight of the evidence by
providing the following definitions:
Intentionally Possessed a Firearm
A person intentionally possesses a firearm if the person has the conscious
objective or desire to possess the firearm.
Knowingly Possessed a Firearm
A person knowingly possesses a firearm if the person is aware that he
possesses a firearm.
According to Holiness, these definitions were non-statutory definitions. We disagree.
“Section 6.03 of the Texas Penal Code sets out: four culpable mental states—
intentionally, knowingly, recklessly, and criminally negligently; two possible conduct
8
elements—nature of the conduct and result of the conduct; and the effect of the circumstances
surrounding the conduct.” Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015). As a
result, the definition of the mens rea applicable to an offense is a statutory definition. See Cook
v. State, 884 S.W.2d 485, 488 (Tex. Crim. App. 1994). As applicable here, “[a] person acts
intentionally, or with intent, with respect to the nature of his conduct, . . . when it is his
conscious objective or desire to engage in the conduct,” TEX. PENAL CODE ANN. § 6.03(a), and
“[a] person acts knowingly, or with knowledge, with respect to the nature of his conduct . . .
when he is aware of the nature of his conduct,” TEX. PENAL CODE ANN. § 6.03(b).
Because the jury charge must be tailored to the law applicable to the case, “the language
in regard to the culpable mental state must [also] be tailored to the conduct elements of the
offense.” Price, 457 S.W.3d at 441. In fact, “[a] trial court errs when it fails to limit the
language in regard to the applicable culpable mental states to the appropriate conduct element.”
Id. (citing Cook, 884 S.W.2d at 491). We find that the trial court’s definitions properly tailored
the appropriate statutorily defined mens rea to the conduct element of the alleged offense. As a
result, we conclude that there was no jury charge error.3
3
Holiness’s consolidated brief contains an argument that the trial court erred in submitting a punishment charge that
included good conduct time. In support, Holiness cites to Article 37.07, Section 4(a), of the Texas Code of Criminal
Procedure, which only applied to Holiness’s conviction in the evading arrest companion case. See TEX. CODE CRIM.
PROC. ANN. art. 37.07, § 4(a) (Supp.). As a result, we do not believe Holiness’s brief raises any complaint about the
inclusion of good conduct time in this case. If it does, the complaint is meritless since the inclusion of good conduct
time was specifically authorized by Section 4(c) of Article 37.07, which applies to third-degree felonies. See TEX.
CODE CRIM. PROC. ANN. art. 37.07, § 4(c) (Supp.) (“In the penalty phase of the trial of a felony case in which the
punishment is to be assessed by the jury rather than the court, if the offense is punishable as a felony of the second
or third degree . . . the court shall charge the jury in writing as follows: []The length of time for which a defendant
is imprisoned may be reduced by the award of parole. []Under the law applicable in this case, the defendant, if
sentenced to a term of imprisonment, may earn early parole eligibility through the award of good conduct time.
Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out
9
IV. Conclusion
We affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: September 13, 2021
Date Decided: October 1, 2021
Do Not Publish
prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may
also take away all or part of any good conduct time earned by the prisoner.”).
10