Michael Wayne Riley v. the State of Texas ( 2021 )

REVERSED and REMANDED and Opinion Filed October 20, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01402-CR
MICHAEL WAYNE RILEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1770289-M
MEMORANDUM OPINION
Before Justices Schenck, Smith, and Garcia
Opinion by Justice Smith
A jury convicted appellant, Michael Wayne Riley, of the offense of criminal
mischief in the amount of $2,500 or more but less than $30,000. The State alleged
that he committed criminal mischief by intentionally and knowingly damaging or
destroying complainant’s motor vehicle by striking complainant’s motor vehicle
with his motor vehicle. The trial court sentenced appellant to eighteen months’
confinement.
On appeal, appellant contends that the trial court erred by admitting a video
from approximately two years prior to the offense in which appellant called
complainant the “n” word. Because we conclude that the admission of the video
was not error under the facts of this case, we affirm appellant’s conviction for
criminal mischief. As to the punishment phase, the parties agree that the trial court
committed reversible error by failing to consider community supervision because
trial counsel and the court mistakenly believed that appellant was ineligible for
community supervision. We agree with the parties that appellant was eligible for
community supervision. Thus, we remand the case to the trial court for a new
punishment hearing consistent with this opinion.
Background
Appellant and complainant had been next door neighbors since February
2012, and did not get along. Their issues began in 2013 and continued to 2017. In
August 2013, complainant was sweeping grass clippings back onto appellant’s
sidewalk after he believed appellant had put them on his driveway and sidewalk.
Appellant threatened him from the window, and complainant heard appellant
chamber a round in a gun. Complainant pulled his gun from his holster and called
the police. In March 2015, appellant tried to run complainant’s wife off the road and
screamed obscenities at her. There were also several occasions in which appellant
followed complainant as he drove from his neighborhood to work.
On January 31, 2017, complainant was on his way to work and noticed
appellant several times while they were passing each other in traffic. Complainant
testified that he shook his head at appellant, but no words were exchanged before
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appellant drove his truck into the driver’s side door of complainant’s vehicle. When
appellant hit complainant’s vehicle with his front right bumper, it pushed
complainant’s vehicle out of the lane and into the right lane where it hit the curb and
came to a stop. Appellant’s truck also came to a stop.
Appellant then backed up, and complainant pulled forward believing that
appellant was going to hit him again. Appellant drove away, jumped the median
and, in the process, hit two other vehicles. One of the other drivers testified that he
was sitting at a red light when he heard a loud crash behind him. Appellant
sideswiped the left front side of his car, hit the car in front of him, and squeezed in
between his car and the other car to get on the service road. Both complainant and
the other driver called 9-1-1 and followed appellant to a parking lot. The 9-1-1
operator told complainant to stop following appellant, so he complied; appellant
drove away.
Both complainant and the other driver filed reports with the police.
Complainant’s vehicle sustained $8,512.62 in damages. The State indicted appellant
for criminal mischief, and a jury convicted him. This appeal followed.
Admission of the Video
In his first issue, appellant argues that the trial court erred when it admitted a
video that depicted him calling complainant the “n” word. He asserts that his cross-
examination of complainant about the August 2013 incident did not open the door
to “a further irrelevant and highly prejudicial incident” and that the probative value
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of the video is grossly outweighed by its prejudicial impact because it occurred at
least two years prior to the offense. Appellant contends that the error was harmful
because it inserted a highly offensive word into the case and, although it was possible
the jury could convict him based on the underlying facts, “it was hardly an
overwhelming case.”
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1991) (op. on reh’g). We will reverse a trial court’s ruling only if it is outside the
“zone of reasonable disagreement.” Id. Evidence is relevant when it has any
tendency to make a fact of consequence in determining the action more or less
probable than it would be without the evidence. TEX. R. EVID. 401. Rule 404(b)(2)
provides that extraneous evidence may be admissible for other purposes, “such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). Extraneous evidence may
also be admissible to rebut a defensive theory. De La Paz v. State, 279 S.W.3d 336,
344–47 (Tex. Crim. App. 2009).
Appellant concedes that the State is entitled to present rebuttal evidence that
tends to refute a defensive theory even if such evidence encompasses an extraneous
offense. That is precisely what happened here.
Appellant’s defense at trial was complainant was the aggressor, complainant
was threatening and chasing appellant, and complainant hit appellant in the collision.
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On cross-examination of complainant, defense counsel elicited testimony and
introduced photographs that showed an incident on August 29, 2013, in which
complainant was sweeping grass clippings back onto appellant’s sidewalk and
holding a .9-millimeter pistol. The pictures depicted complainant with a broom in
one hand and the .9-millimeter pistol in the other. When defense counsel began to
elicit this testimony, the State cautioned that it believed defense counsel’s questions
were opening the door “to a whole lot of everything.” Defense counsel explained
that he was presenting the evidence because it “goes to the motive of the witness
sometime before this [offense] occurred.” The trial court instructed the State that it
would still need to approach if it wanted to introduce extraneous evidence and
allowed the defense to continue with its cross-examination of complainant.
Complainant explained that he came home for lunch and noticed grass
clippings on his driveway and sidewalk, so he swept them back onto appellant’s
sidewalk. He further explained that his gun was holstered on his hip because he had
a concealed handgun license. Complainant testified that appellant took the pictures
of complainant from his front window and said, “I see you. I see you, you stupid
[‘n’ word].” Appellant elicited this testimony from complainant and made no
objection or attempt to stop the line of questioning. Complainant further testified
that appellant laughed when he told him he was going to continue to sweep the
clippings back. Appellant told complainant, “I will put a F’ing hole in your head,
you stupid [‘n’ word].” Complainant heard what he thought was a rifle or a round
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being chambered in a gun, so he dropped the broom, got behind the mailbox, and
pulled his gun. He said he never pointed it toward appellant. Complainant claimed
that the pictures depicting him holding the gun were taken when the police were on
their way, not before the two exchanged words. The police arrived, and complainant
gave a statement. Appellant would not come to the door, so the police told
complainant to file a report, which he did.
After defense counsel’s cross-examination of complainant, the State argued
that appellant opened the door to what occurred on August 29, 2013, but also to
allegations that appellant followed complainant to and from work on other
occasions, that appellant chased people off the road, and that appellant made racist
comments toward complainant, including on the video. The State also argued that
the extraneous evidence was admissible to show motive, intent, and lack of mistake
as to the instant offense.
The only piece of evidence at issue in this appeal is the video, which shows
an argument between appellant and complainant after the August 29, 2013 incident.
The parties reference the 2013 incident in the video; however, the parties did not
agree as to when the argument on the video occurred. Complainant believed that it
took place a few months after the August 2013 incident; possibly November or
December 2013. Appellant’s wife testified (after the video had already been
admitted) that the argument took place on February 26, 2015.
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Appellant objected at trial that his cross-examination of complainant
regarding the August 2013 incident did not open the door to the admission of the
video: “I don’t think that – being that far removed, it would have any automatic
opening the door to that.” The trial court ruled that the defense opened the door and
admitted the evidence.
On appeal, appellant couches his argument as a violation of rule 403: the
video’s probative value is grossly outweighed by its prejudicial impact because the
argument shown in the video occurred two years prior to the collision. However, at
trial, appellant neither argued that the video, or using the “n” word in front of the
jury, was inflammatory or highly prejudicial nor specifically raised a rule 403
objection to the extraneous evidence. Assuming, without deciding, that appellant’s
remoteness objection at trial was sufficient to inform the trial court that he was
raising a rule 403 objection, we hold that the trial court did not abuse its discretion
in admitting the video over appellant’s remoteness objection.
Rule 403 provides that the trial court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403. We evaluate the following four factors
when conducting a rule 403 analysis: (1) the probative value of the evidence; (2) the
potential to impress the jury in some irrational, yet indelible way; (3) the time needed
to develop the evidence; and (4) the proponent’s need for the evidence. State v.
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Mechler, 153 S.W3d 435, 440 (Tex. Crim. App. 2005). This balancing test “is
always slanted toward admission, not exclusion, of otherwise relevant evidence.”
De La Paz, 279 S.W.3d at 343.
Here, the video depicted an argument between the parties that referenced the
August 29, 2013 incident, an incident that appellant put into evidence to show that
complainant was the aggressor on January 31, 2017, the day of the offense.
Although the video was taken approximately two years before the offense, possibly
over three years before, appellant’s cross-examination had already elicited testimony
about an event that occurred three and one-half years before the offense. Thus, at
the time the trial court ruled that the video was admissible, the jury had before it
evidence of appellant’s and complainant’s bad relationship stretching from August
29, 2013, to January 31, 2017. The video referenced the August 2013 incident and
was an example of the general nature of the parties’ relationship during that time
frame.
Furthermore, the video was probative of appellant’s motive and intent on the
day of the offense because it demonstrated appellant’s animosity toward
complainant. It also rebutted appellant’s defensive theory that complainant was the
aggressive neighbor and that it was him that caused the collision in 2017, not
appellant. Thus, the probative value of the video weighs in favor of admission.
As to the second factor, we cannot say that the video itself had the potential
to impress the jury in some irrational but indelible way. While we agree that the “n”
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word is highly inflammatory and could tempt the jury to find appellant guilty based
on the emotions that such a word evokes, defense counsel had already elicited
testimony from complainant regarding appellant calling him the “n” word during the
August 2013 incident. It is also somewhat difficult to hear each of the times
appellant calls complainant the “n” word in the video. After playing the video, the
prosecutor asked complainant what appellant called him, and appellant does not
challenge that testimony on appeal, or any other testimony in which complainant
outlined the other times in which appellant called him the “n” word.1 What can
clearly be heard in the video is the two arguing about who previously pulled a gun
on who, and complainant stating that anytime appellant threatens him he is going to
bring his gun. Thus, a review of the video itself does not necessarily weigh against
admission.
The time to present the evidence to the jury was minimal and, therefore, the
third factor weighs in favor of admission. The video was played in two parts; the
first was seven seconds long and the second was twenty-five seconds long. The
State’s examination of complainant concerning the video argument spanned a mere
three pages of the record.
1
We also note that appellant did not offer a redacted version of the video without audio of
appellant saying the “n” word. He simply argued that the entire video should be excluded
because it was too remote, and the State had not opened the door to its admission.
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The State’s need for the evidence in this case was high because appellant
presented complainant as an aggressive neighbor who pulled a gun on him in 2013
and who was the cause of the 2017 collision. To rebut that evidence, the State
needed to show how appellant actually treated complainant throughout the years
leading up to the offense. The short video depicted one such situation in which
appellant was angry and aggressive toward complainant. Thus, the final factor
weighs in favor of admission.
Because our review of the rule 403 balancing test weighs toward admissibility
and because the evidence was relevant to rebut a defensive theory and to show
motive and intent, we cannot say that the trial court abused its discretion in admitting
the video over appellant’s remoteness objection. We overrule appellant’s first issue.
Trial Court’s Failure to Consider Full Range of Punishment
In his second issue, appellant contends that the trial court committed
reversible error when it failed to consider the full range of punishment applicable to
his conviction. Specifically, appellant asserts that the trial court failed to consider
community supervision. The State agrees that this was reversible error.
Prior to trial, the trial court admonished appellant that, if the jury returned a
verdict of guilty, he was not eligible for community supervision. Neither the State,
nor defense counsel corrected the trial court or raised an objection. When defense
counsel asked the trial court during the punishment phase whether it would like to
have a presentence investigation report prepared, the State commented that appellant
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was not “probation eligible.” Defense counsel stated in its closing argument that he
knew the court could not consider probation. Thus, it appears from the record that
the parties and the trial court believed that appellant was not eligible for community
supervision and, therefore, the trial court did not consider community supervision
when it assessed appellant’s punishment at eighteen months’ confinement.
The Court of Criminal Appeals has determined that a defendant cannot waive,
by inaction, the right to be sentenced by a judge who properly considers the full
range of punishment applicable to the conviction; there must be an effective express
waiver by the defendant in order for an appellate court to hold that the error has not
been preserved for appellate review. Grado v. State, 445 S.W.3d 736, 739, 741 (Tex.
Crim. App. 2014) (categorizing such right as a category two Marin right) (citing
Marin v. State, 851 S.W.2d 275, 278–80 (Tex. Crim. App. 1993), overruled on other
grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)). Here, appellant
did not expressly waive his right to be sentenced under the full range of punishment.
Article 42A.054 sets out the limitations on judge-ordered community
supervision and includes a laundry list of offenses for which article 42A.053 does
not apply. TEX. CODE CRIM. PROC. ANN. art. 42A.054. Criminal mischief is not
included, nor is there a general limitation on judge-ordered community supervision
for state jail felonies. Id. Article 42A.053 allows a judge to suspend the imposition
of a sentence and place a defendant on community supervision after conviction.
TEX. CODE CRIM. PROC. ANN. art. 42A.053(a)(1). However, article 42A.053 also
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provides that a defendant is not eligible for community supervision if the defendant
is sentenced to serve “a term of confinement under Section 12.35.” TEX. CODE CRIM.
PROC. ANN. art. 42A.053(c)(2). Section 12.35 governs punishment ranges for state
jail felonies. TEX. PENAL CODE ANN. § 12.35.
In contradiction to article 42A.053(c)(2), the legislature enacted article
42A.551(d), which provides, “On conviction of a state jail felony punished under
Section 12.35(a), Penal Code, . . . the judge may: (1) suspend the imposition of the
sentence and place the defendant on community supervision; or (2) order the
sentence to be executed.” TEX. CODE CRIM. PROC. ANN. art. 42A.551(d).
We agree with appellant that the more specific provision regarding
community supervision for state jail felonies should apply. See In re Dotson, 76
S.W.3d 393, 395 (Tex. Crim. App. 2002) (“One of our general rules of statutory
construction is that a more specific statute or rule will prevail over a more general
one.”); Ramirez v. State, No. 08-02-00410-CR, 2003 WL 22461821, at *2–3 (Tex.
App.—El Paso Oct. 30, 2003, no pet.) (mem. op., not designated for publication)
(comparing former provisions in article 42.12 and holding defendant was eligible
for community supervision because more specific language of 42.12, § 15(a), now
codified as 42A.551, controls over general language of 42.12, § 3(e)(2), now
42A.053); Embree v. State, No. 05-01-01052-CR, 2003 WL 1492950, at *7 (Tex.
App.—Dallas Mar. 25, 2003, pet. ref’d) (not designated for publication) (comparing
former provisions in article 42.12 and explaining trial court could give community
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supervision when defendant was punished under article 12.35(a) for a state jail
felony but not under 12.35(c) for an enhanced state jail felony).2 Articles 42A.053
and 42A.054 can be found in Subchapter B, “Placement on Community
Supervision,” which broadly sets out when a defendant may be placed on community
supervision for all levels of offenses. Article 42A.551 is located in Subchapter L,
“State Jail Felony Community Supervision,” and specifically sets out the parameters
for community supervision for state jail felonies. We hold that article 42A.551
applies and, therefore, the trial court erred when it failed to consider community
supervision as part of the full range of punishment applicable to appellant.
The failure of a trial court to consider the full range of punishment violates
due process. Grado, 445 S.W.3d at 739. Therefore, we must review the error for
harm. 3 Under either the constitutional harm standard or the non-constitutional harm
2
But see Alford v. State, No. 02-16-00407-CR, 2018 WL 1192459, at *1 (Tex. App.—Fort
Worth Mar. 8, 2018, no pet.) (mem. op., not designated for publication) (citing article
42A.053(c)(2), but not comparing with article 42A.551, and holding defendant was not eligible
for judge-ordered regular probation because she was pleading guilty to a state jail felony);
Allen v. State, No. 05-94-01880-CR, 1996 WL 98720, at *4 (Tex. App.—Dallas Mar. 7, 1996,
no pet.) (not designated for publication) (citing former article 42.12 generally, but not former
article 42.12, §15 specifically, and setting out four circumstances in which a trial court must
refuse to grant probation including when the defendant is sentenced for a state jail felony).
3
Appellant presents his harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex. Crim.
App. 1985) (op. on reh’g) and argues that he suffered egregious harm. But this is not a case
of unobjected-to jury charge error. The State does not set out a standard for reviewing harm
in its brief but agrees that the proper remedy is to remand the case to the trial court for a new
punishment hearing. The State cites to Cabrera v. State, 513 S.W.3d 35, 41 (Tex. App.—
Houston [14th Dist.] 2016, pet ref’d), which does not conduct a harm analysis in remanding
the case for a new punishment hearing. This Court has previously reviewed such an error
under Rule 44.2(b). See Brooks v. State, No. 05-18-01401-CR, 2019 WL 6606367, at *3–4
(Tex. App.—Dallas Dec. 5, 2019, no pet.) (mem. op., not designated for publication).
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standard, we cannot conclude that the error in this case was harmless. See TEX. R.
APP. P. 44.2.
The parties agree that appellant was harmed and, although the trial court
sentenced appellant to eighteen months, which is on the upper end of the punishment
range, we cannot say beyond a reasonable doubt the trial court’s failure to consider
community supervision did not affect appellant’s punishment. See TEX. R. APP. P.
44.2(a) (constitutional error requires a judgment to be reversed unless the court
determines beyond a reasonable doubt that the error did not contribute to the
conviction or punishment). Even if we were to review the error under the non-
constitutional harm standard, we hold that the trial court’s error in failing to consider
the full range of punishment affected his substantial rights. See TEX. R. APP. P.
44.2(b) (any other error that does not affect substantial rights must be disregarded).
Thus, appellant was harmed by the trial court’s failure to consider whether to
suspend the sentence and place appellant on community supervision. Appellant’s
second issue is sustained.
Conclusion
We reverse appellant’s sentence of confinement for a term of eighteen months
and remand this cause for a new punishment hearing consistent with this opinion.
See TEX. CODE CRIM. PROC. ANN. art. 44.29(b).
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In all other respects, we affirm the trial court’s judgment.
/Craig Smith/
CRAIG SMITH
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
101402F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL WAYNE RILEY, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1770289-M.
No. 05-19-01402-CR V. Opinion delivered by Justice Smith.
Justices Schenck and Garcia
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings pursuant to TEX.
CODE CRIM. PROC. ANN. art. 44.29(b).
Judgment entered October 20, 2021
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