Cassius Dwayne Clay v. the State of Texas ( 2022 )

NUMBER 13-22-00071-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CASSIUS DWAYNE CLAY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Jackson County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Silva
Appellant Cassius Dwayne Clay appeals his convictions for aggravated assault
with a deadly weapon against a family member, a first-degree felony, continuous family
violence, a third-degree felony, and unlawful possession of a firearm by a felon, a third-
degree felony. See TEX. PENAL CODE ANN. §§ 22.02(b)(1) (aggravated assault), 25.11(a),
(e) (continuous family violence), 46.04(a), (e) (unlawful possession of a firearm); see also
TEX. FAM. CODE ANN. §§ 71.0021(b), 71.003, 71.005. By a single issue, Clay argues the
trial court erred by admitting a letter allegedly written by him to the complainant because
it was not properly authenticated. See TEX. R. EVID. 901. We affirm.
I. BACKGROUND
On December 15, 2020, a grand jury indicted Clay for aggravated assault with a
deadly weapon against a family member, continuous family violence, and unlawful
possession of a firearm by a felon. The indictment included three enhancement
paragraphs for prior felony convictions, with the third enhancement paragraph indicating
it applied only to the offenses of aggravated assault and continuous family violence. See
TEX. PENAL CODE ANN. § 12.42(d).
At trial, Edna Police Department (EPD) Officer Bridget Bustamonte testified that
she and EPD Officer Nathan Besler responded to a call for a domestic disturbance at
approximately 10:15 p.m. on November 23, 2020. Jackson County Sheriff’s Office Deputy
Timothy Gonzales arrived on scene after Officers Bustamonte and Besler. Officers
immediately made contact with the complainant, Jeanna Ennels, who notified the officers
that she had been shot by Clay. Deputy Gonzales examined Ennels and observed a bullet
wound “[o]n the right side of her neck[,] behind her ear.” While on scene, Officer
Bustamonte recovered a small .22 caliber pistol.
Ennels testified that she met Clay through her friend, and she dated Clay for a
couple of weeks before they moved in together. According to Ennels, Clay was violent
towards her before the alleged shooting, including assaulting her on November 13, 2020.
Following the November 13 incident, EPD issued a criminal trespass warning against
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Clay that protected Ennels’s apartment. Ennels thereafter testified to the events leading
up to the shooting on November 23. Ennels elaborated that while she was on the phone
with Clay, he overheard an exchange between her and a coworker and accused her of
flirting with him. While driving home from work, Ennels’s vehicle ran out of gas, prompting
her to ask Clay to pick her up to get fuel. After adding fuel, her vehicle stalled again, and
she asked for Clay’s assistance once more. However, “by this time, [Clay] was agitated,”
and, instead of taking her to the gas station, Clay drove her down an unknown road for
“at least . . . thirty minutes” while calling her obscene names. Ennels attempted to jump
out of the car twice, but each time she opened the door, he sped up. Ennels told Clay the
relationship was over which prompted him to “backhand[] [her] in [her] mouth” causing
her lips to swell. When Clay finally stopped the vehicle, Ennels ran out and approached
another vehicle whose driver ended up taking her to the sheriff’s office. A sheriff’s deputy
drove Ennels to her apartment complex, and she went to a friend’s apartment in the same
complex.
According to Ennels, she eventually went to her own apartment but had to request
for maintenance to let her in and change her locks because Clay had her keys. After
about two hours of waiting, Ennels saw Clay leave his aunt’s apartment which was in the
same building as Ennels’s. Although Ennels was hiding, Clay spotted her and walked
towards her. Ennels tried running, but “before [she] knew it[,] he had [her] already.” Ennels
testified that Clay dragged her by her coat to the walkway of the apartment building, and
she heard a pop that “was so loud [her] ear started ringing.” Ennels felt a “jolt in [her]
chest,” “[l]ike as if somebody punched [her].” Ennels testified that her “body got real hot,”
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and she was “hollering:” “[Y]ou shot me, you shot me.” Ennels later testified that the bullet
traveled from behind her ear into her chest. According to Ennels, doctors were unable to
remove the bullet due to its proximity to her heart. Ennels further explained that after
shooting her, Clay began “punching [her] in [her] head.” Clay was dragging Ennels to
another place on the property when the officers arrived.
Relevant to this appeal, the State offered an exhibit which purported to be a
handwritten letter mailed from Clay to Ennels, sent from the Jackson County Detention
Center where Clay was housed. Although the letter was addressed by name to Clay’s
cousin, the letter itself was mailed to Ennels’s home address. Prior to its admission, the
following colloquy occurred:
[Defense]: Your Honor, I am going to object to relevance here and—
yeah, relevance, Your Honor.
....
[During bench conference:]
[Defense]: This doesn’t pertain to any counts, your Honor. It may be
relevant punishment evidence[,] but it doesn’t pertain to any
counts.
[State]: Your Honor, consciousness of guilt is relevant to every count
at all times.
The Court: I’m going to sustain—I am going to overrule the objection. And
you may proceed, [State].
....
[Defense]: It’s—it’s inadmissible because it’s unclear and it will cause jury
confusion. It’s not clear that [shooting Ennels is] what it’s
referring to and it’s written to another person. So[,] it’s going
to cause jury confusion, and that’s my objection.
The Court: Okay. I have reviewed the letter. It appears clearly to be
directed at [Ennels]. It is directed to her address. And the
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recitations contained in the letter are further indicia that it is
intended to be a communication with [Ennels].
So[,] I am going to overrule your objection to [the letter].
Ennels testified that the letter was from Clay and affirmed that the exhibit was a
fair and accurate copy of the letter as she received it. The letter included statements
referencing the alleged assault including, “I didn’t wake up that morning with the intent to
shoot you when you got home[.]” The letter also contained multiple references to a past
dating relationship between Clay and the letter’s recipient.
The State called sixteen witnesses and admitted approximately 140 exhibits during
the guilt-or-innocence phase of trial. The jury found Clay guilty on all three counts in the
indictment, and the trial court subsequently sentenced him to seventy-five years’
confinement for each offense, to run concurrently. 1 This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
A. Preservation of Error
On appeal, Clay argues the trial court erred by admitting the letter because the
State failed to properly authenticate it as a letter written by him and such error caused
him harm. Before addressing the merits of his argument, we must consider whether Clay
failed to preserve this error for review as the State argues. See TEX. R. APP. P. 33.1(a)(1).
“To preserve a complaint for appellate review, a party must have presented to the
trial court a timely request, objection, or motion stating the specific grounds for the ruling
desired.” Simmons v. State, 288 S.W.3d 72, 77 (Tex. App.—Houston [1st Dist.] 2009, pet.
1 The trial court found the enhancement paragraphs in the indictment to be “true.” Thus, each
offense’s punishment range was enhanced to 25–99 years based on Clay’s habitual felony offender status.
See TEX. PENAL CODE ANN. § 12.42(d).
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ref’d) (citing TEX. R. APP. P. 33.1(a)(1)). In addition, the party’s “contention must comport
with the specific objection made at trial.” Id. (citing Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002)). In other words, “[a]n objection stating one legal theory may not
be used to support a different legal theory on appeal.” Id. (citing Broxton v. State, 909
S.W.2d 912, 918 (Tex. Crim. App. 1995)). However, a party may use “a general or
imprecise objection” “where the correct ground for exclusion was obvious to the judge
and opposing counsel.” Lankston v. State, 827 S.W.2d 907, 908 (Tex. Crim. App. 1992)
(quoting Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977)). Requiring a
party to inform the court “what he wants [and] why he thinks he is entitled to it . . . clearly
enough for the [trial court] to understand him . . . gives the trial [court] and the opposing
party an opportunity to correct the error.” Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim.
App. 2009) (quoting Lankston, 827 S.W.2d at 909). When determining whether a
complaint is preserved for appellate review, “we consider the context in which the
complaint was made and the parties’ shared understanding at that time.” Id.B. Authentication
As a condition precedent to admissibility, the proponent of evidence must show
that it is “authentically what its proponent claims it to be.” Tienda v. State, 358 S.W.3d
633, 638 (Tex. Crim. App. 2012) (citing TEX. R. EVID. 901(a)). “The ultimate question [of]
whether an item of evidence is what its proponent claims then becomes a question for
the fact[]finder—the jury, in a jury trial.” Id. However, the trial court must perform a gate-
keeping function to determine “whether the proponent of the evidence has supplied facts
that are sufficient to support a reasonable jury determination that the evidence he has
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proffered is authentic.” Id.; see TEX. R. EVID. 104(a), 901(a). A trial court’s ruling on a
preliminary question, such as authenticity, is reviewed for an abuse of discretion. Tienda,
358 S.W.3d at 638. “If the trial court’s ruling that a jury could reasonably find proffered
evidence authentic is at least ‘within the zone of reasonable disagreement,’ a reviewing
court should not interfere.” Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (opinion on reh’g)).
“Evidence may be authenticated in a number of ways, including by direct testimony
from a witness with personal knowledge, by comparison with other authenticated
evidence, or by circumstantial evidence.” Id.; TEX. R. EVID. 901(b) (providing examples of
evidence satisfying the prerequisite of authentication). In addition to the preceding, a
writing may be authenticated based on “[a] nonexpert’s opinion that handwriting is
genuine, based on a familiarity with it that was not acquired for the current litigation.” TEX.
R. EVID. 901(b)(2).
III. ANALYSIS
Clay argues that his objection to the letter at trial was “sufficient to direct the trial
court’s attention to the complaint and thus adequate to preserve the complaint for review.”
Clay cites Hislop v. State, wherein our sister court determined that a hearsay objection to
a letter allegedly written by the defendant was sufficient to preserve for review a complaint
as to its authentication. 64 S.W.3d 544, 546 (Tex. App.—Texarkana 2001, no pet.).
Notably, Hislop’s objection was phrased: “Your Honor, until further evidence is exhibited
to show who wrote these letters, I’m going to object to their content being hearsay.” Id. at
545 (emphasis added). The appellate court noted that a letter allegedly written by
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defendant could not be hearsay because it would “fall[] within the category of admissions
by [the defendant] and is therefore not hearsay.” Id. at 545; see TEX. R. EVID. 801(e)(2)
(excluding statements by a party-opponent from the definition of hearsay). Like Clay’s
argument on appeal, Hislop argued “that the entire basis for his objection was the State’s
failure at that point to lay a predicate for the introduction of the letter to show that [he] was
its author.” Hislop, 64 S.W.3d at 545. Thus, the Hislop Court reasoned that the objection
was “sufficient to direct the trial court’s attention to the complaint and thus adequate to
preserve the complaint for review.” Id. at 546.
We find Hislop to be inapposite. Here, Clay repeatedly objected that the letter was
not relevant; he did not present a complaint that the foundation was insufficient to
demonstrate that he wrote the letter. At most, Clay posited that the letter may confuse the
jury because it was addressed to a person other than Ennels, and it was unclear what
situation the letter was “referring to.” Conceivably, Clay could have been arguing that the
letter’s probative value was substantially outweighed by its probative value by “confusing
the issues” or “misleading the jury.” See TEX. R. EVID. 403. However, it cannot be said that
Clay’s objection clearly challenged the identity of the letter’s author, i.e., whether the letter
was what the State claimed it was: a letter written by Clay. See id. R. 901(a); Tienda, 358
S.W.3d at 638. If Clay intended to question the authenticity of the document, his objection
was not so obvious or clear enough that the trial court or the State could understand him
while they were able to correct the error. See Pena, 285 S.W.3d at 464; Lankston, 827
S.W.2d at 909. Because his complaint on appeal does not comport with his objection at
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trial, Clay’s sole issue is overruled as unpreserved. 2 See TEX. R. APP. P. 33.1(a)(1); Pena,
285 S.W.3d at 464; Lankston, 827 S.W.2d at 909.
IV. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
28th day of July, 2022.
2 Under Texas Rule of Evidence 901(b)(4), evidence may be authenticated by “[its] appearance,
contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all
the circumstances.” TEX. R. EVID. 901(b)(4); see Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App.
2012). Here, the contents of the letter contained references to the alleged shooting and a romantic
relationship, which were consistent with Ennels’s testimony about the event and her relationship with Clay.
See TEX. R. EVID. 901(b)(4). Further, the letter was sent from the same jail where Clay was housed while
he was awaiting trial and addressed with his name on it. See id. Because the determination of whether the
evidence is authentic rests with the jury, we cannot say the trial court’s decision to admit the letter would
have been outside the zone of reasonable disagreement such that would constitute an abuse of discretion
of its gate-keeping function. See Tienda, 358 S.W.3d at 637–38; see also TEX. R. EVID. 104(a); 901(b)(4).
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