Clifford W. Graham v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00095-CR ______________________________



CLIFFORD WILLIAM GRAHAM, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 28746-A

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Before Morriss, C.J., Ross and Grant,* JJ. Opinion by Chief Justice Morriss

Concurring Opinion by Justice Ross

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*Ben Z. Grant, Justice, Retired, Sitting by Assignment

O P I N I O N

Clifford William Graham appeals from his jury conviction on his guilty plea for the offense of arson. He pled true to one enhancement, and the jury assessed his punishment at seventy years' imprisonment and a fine of $10,000.00. ⁽¹⁾

Graham contends on appeal (1) that the trial court erred by overruling his motion to suppress his confession, (2) that the trial court erred by permitting television cameras in the courtroom over his objection, (3) that the jury improperly considered the law on parole, and (4) that the evidence is both legally and factually insufficient to support his conviction.

Graham's Confession

We first address the suppression issue. A pretrial hearing was conducted on Graham's motion to suppress. However, at the end of the hearing, one witness was not available, and the trial court did not rule at that time. We have examined the record and cannot find any point at which the trial court later ruled on the suppression motion or at which the matter was later broached for discussion. In the absence of either an explicit or implicit ruling by the trial court, there is nothing about which to complain. Tex. R. App. P. 33.1(b). Further, we cannot conclude the court made an implicit ruling in the absence of any language suggesting it had any intention to do so.

Finally, we recognize that, when the statement was admitted into evidence, counsel affirmatively stated he had no objection to its introduction. When a court overrules a pretrial motion to suppress evidence, the defendant need not subsequently object to the admission of the same evidence at trial to preserve error. Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985), ⁽²⁾ overruled on other grounds, Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997); Fierro v. State, 969 S.W.2d 51, 55 (Tex. App.-Austin 1998, no pet.); Hardin v. State, 951 S.W.2d 208, 210 (Tex. App.-Houston [14th Dist.] 1997, no pet.). Those same cases, however, also hold that the defendant waives his or her pretrial objection if he or she, as did Graham, affirmatively asserts at trial that he or she has no objection to the admission of the evidence. Fierro, 969 S.W.2d at 55; Hardin, 951 S.W.2d at 210; Gearing, 685 S.W.2d at 329. We find that this contention has not been preserved for review.

Cameras in the Courtroom

Graham next contends the trial court erred by allowing television cameras in the courtroom during the trial. Graham argues this is error and harmful because there was evidence that, at one point, he had called a television station to see if he had made the news.

Graham bases his claim of error on Estes v. Texas, 381 U.S. 532 (1965). In Estes, a widely publicized and media intensive case, the defendant's trial was conducted in a "circus atmosphere" due to the intrusion of press and television equipment in the courtroom. In that opinion, the majority held that, in light of the great notoriety of the trial, due process of law was denied the accused by the televising and broadcasting of the proceedings.

Neither the Texas Legislature nor Texas courts have directly addressed televising courtroom proceedings in criminal cases. Each court, however, has "all powers necessary for the exercise of its jurisdiction," Tex. Gov't Code Ann. § 21.001(a) (Vernon Supp. 2003), and is to "control proceedings so that justice is done." Tex. Gov't Code Ann. § 21.001(b) (Vernon Supp. 2003). Trial courts have broad and plenary power to regulate trials. Ex parte Jacobs, 664 S.W.2d 360 (Tex. Crim. App. 1984). The courts have that inherent power over "the every day administration of justice" when handling criminal cases. See Matchett v. State, 941 S.W.2d 922, 932 (Tex. Crim. App. 1996). "[A]bsent a constitutional provision, statute, or rule to the contrary, the trial court has the power to control the procedural aspects of a case." Marx v. State, 987 S.W.2d 577, 588 (Tex. Crim. App. 1999) (Keller, J., dissenting).

We acknowledge that the "circus atmosphere" decried by the United States Supreme Court remains undesirable and inappropriate for criminal prosecutions. We also recognize that broadcast camera equipment circa 2001 is a far cry from the black and white pedestal cameras used in 1964. It is typically fairly unobtrusive, and there is nothing in this record to suggest the existence of the type of inappropriate atmosphere described in Estes. We also recognize that the Texas Supreme Court, in its Rules of Civil Procedure, has set out specific guidelines for the use of cameras in civil proceedings. Tex. R. Civ. P. 18c. Similar rules exist governing the use of broadcast equipment in appellate courts. Tex. R. App. P. 14.1, 14.2. Although this does not control our analysis, it emphasizes the fact that, in the absence of aggravating factors, broadcast activity in a courtroom is not, standing alone, inappropriate when properly controlled by the court. We conclude that, under this record, the trial court did not abuse its discretion by permitting the media to remain in the courtroom.

Even if error were shown, counsel has not directed this Court to anything in the record to suggest that an inappropriate situation was caused by the presence of the broadcast media in the courtroom. We find Graham's suggestion that the jury might have reasoned the media was there at his request or desire to be, at most, improbable. Accordingly, we find any error that may have occurred was harmless. We overrule this contention of error.

Considering Parole

Graham next contends error is shown in assessing punishment because the jury improperly considered parole during its deliberations.

We generally presume the jury follows the trial court's instructions in the manner presented. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (parole charge and allegation of juror misconduct in considering parole); see Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996) (jury presumed to follow court's instructions as given); Waldo v. State, 746 S.W.2d 750, 751 (Tex. Crim. App. 1988) (jury presumed to follow instruction to disregard evidence).

In Colburn, the court held that the presumption is rebuttable, but that the appellant had pointed to no evidence in rebuttal, and that a jury note suggesting the jury discussed parole at a preliminary point was not sufficient to rebut the presumption. Thus, the court presumed the jury followed the court's instructions and thereafter did not consider the possibility of parole in reaching its verdict. Colburn, 966 S.W.2d at 520.

In this case, Graham also points to a jury note as showing the jury's improper actions. In that note, the jury presented the court with the following question:

A sentence of 60 yr. or a sentence of 80 yr. would both be eligible for parole after 15 yr. less time earned for good conduct.

Yes No

[/s/] Ron Shore

There is nothing else in the record to illuminate the jury's deliberations or to suggest that, unlike Colburn, this is more than a preliminary question raised by the jury. Colburn held that this type of question alone is insufficient to rebut the presumption that the jurors followed the instruction not to consider parole in its deliberations and its final assessment of punishment. This situation is not distinguishable from that addressed in Colburn. Accordingly, we overrule the contention of error.

Sufficiency of the Evidence

Graham next contends the trial court erred in convicting him because the evidence was legally and factually insufficient to support the conviction under state statutory and constitutional requirements and also under federal constitutional rights. This contention of error is based on the presumption that this Court would conclude his statement was improperly admitted into evidence and thus would not be considered as proof of his guilt. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and look to see whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we must evaluate all the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

In contrast, a factual sufficiency review dictates the evidence be viewed in a neutral light, favoring neither party. Johnson, 23 S.W.3d at 7. In determining the factual sufficiency of the evidence to establish the elements of the offense, we view all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

In this case, the conviction is supported by Graham's statement, by his plea of guilty, by his stipulation to the evidence that he had committed the crime, and by his own testimony during the course of the trial. We find the evidence both legally and factually sufficient to support the verdict.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

CONCURRING OPINION

The United States Supreme Court has concluded that Estes v. Texas, 381 U.S. 532 (1965), did not announce a constitutional rule that all photographic, radio, and television coverage of criminal trials is inherently a denial of due process. Chandler v. Florida, 449 U.S. 560 (1981). However, because no rule-making authority in Texas has expressly authorized such coverage in criminal cases, trial courts should not permit it in those proceedings. As pointed out by the majority, Tex. R. Civ. P. 18c provides for such coverage in civil cases, and Tex. R. App. P. 14.1 and 14.2 likewise authorize such coverage. But, these rules provide specific guidelines governing such coverage in those respective proceedings. We have no corresponding guidelines governing photographic, radio, and television coverage of criminal trials, and in the absence of such, trial courts should not allow it, especially over a party's objection, as in this case. ⁽³⁾

Nevertheless, the United States Supreme Court stated in Chandler:

[A] defendant has the right on review to show that the media's coverage of his case-printed or broadcast-compromised the ability of the jury to judge him fairly. Alternatively, a defendant might show that broadcast coverage of his particular case had an adverse impact on the trial participants sufficient to constitute a denial of due process.

Chandler, 449 U.S. at 581.

As no such showing was made in Chandler, neither was there in this case. For this reason, I concur in the result.

Donald R. Ross

Justice

Date Submitted: October 1, 2002

Date Decided: January 10, 2003

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1. Graham is presently before this Court in two appeals. They are from convictions for separate offenses of arson and are each enhanced by the same prior felony conviction. The jury assessed identical punishments in each case.

2. In relevant part, the court found that, although a failure to rule, followed by a statement by counsel that he had no objection to introduction of the evidence, normally waived the error, in that case the trial court did explicitly choose to rule on the motion to suppress after the State rested. The court found that, although unorthodox, this was adequate to preserve the complaint for appellate review. This reasoning has recently been followed by the Corpus Christi Court of Appeals in Morrison v. State, 71 S.W.3d 821, 826 (Tex. App.-Corpus Christi 2002, no pet.).

3. In Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993), the Texas Court of Criminal Appeals held another civil rule of procedure applicable to criminal cases. If the same application is made of Tex. R. Civ. P. 18c, the televising of the proceeding in this case was error because that rule requires the consent of the parties for such televising and Graham clearly did not consent.

v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978). In cases where there is independent evidence of a burglary, the unexplained personal possession of recently stolen property may constitute sufficient evidence to support a conviction. See Harris v. State, 656 S.W.2d 481, 483 (Tex. Crim. App. 1983); Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.—Texarkana 2001, no pet.). Mere possession of stolen property does not give rise to a presumption of guilt, but, rather, it will support an inference of guilt of the offense in which the property was stolen. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). To warrant an inference of guilt based solely on the possession of stolen property, it must be established that the possession was personal, recent, and unexplained. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984); Grant v. State, 566 S.W.2d 954, 956 (Tex. Crim. App. [Panel Op.] 1978). The inference of guilt is not conclusive, however, and the sufficiency of the evidence must still be examined according to applicable evidentiary standards of appellate review. Hardesty, 656 S.W.2d at 77.

            Also, the possession must involve a distinct and conscious assertion of right to the property by the defendant. Grant, 566 S.W.2d at 956. If the defendant offers an explanation for his or her possession of the stolen property, the record must demonstrate the account is false or unreasonable. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). Whether a defendant's explanation for possession of recently stolen property is true or reasonable is a question of fact to be resolved by the trier of fact. Dixon, 43 S.W.3d at 552.

            There is ample evidence to show that a burglary occurred at Norrell's home and several firearms and numerous coins were stolen. The record also reflects that Norrell did not give anyone permission to enter his home or take any of the stolen items.

            It is undisputed that Rollerson was in possession of coins stolen from Norrell's home the day after the burglary. The evidence shows that Rollerson was attempting to sell the coins to Westside Checking. This was a distinct and conscious assertion of right to the property by Rollerson. See Tabor v. State, 88 S.W.3d 783, 787 (Tex. App.—Tyler 2002, no pet.). The only explanation offered by Rollerson for his possession of the coins was that he had received them from "a friend." However, there is nothing in the record to indicate Rollerson gave the friend's name or any other details about how he came into possession of the coins.

            Whether the appellant's explanation is reasonable is an issue to be determined by the trier of fact. The falsity of the explanation may be shown by circumstantial evidence. Adams, 552 S.W.2d at 815. Evidence was presented that Rollerson told some acquaintances that he had some coins he wanted to cash. Other evidence shows that Rollerson had previously exchanged some other coins belonging to Norrell at a different store. The trial court's determination that Rollerson's sparse explanation was false or unreasonable is not contradicted by the evidence.

            Viewed in the light most favorable to the verdict, the evidence showed that, just one day after the burglary, Rollerson had possession of numerous coins stolen from Norrell's home. The evidence also showed that Rollerson established a distinct and conscious assertion of right to those coins by attempting to sell them. See Tabor, 88 S.W.3d at 787. Finally, the evidence showed that Norrell did not give Rollerson permission to take or sell the coins. We hold that a rational trier of fact could have found beyond a reasonable doubt that Rollerson burglarized Norrell's home based on his personal, recent, and unexplained possession of Norrell's property.

            Viewed in a neutral light, we find the evidence discussed above was strong enough to support a finding of guilt beyond a reasonable doubt. Rollerson did not provide any compelling direct evidence regarding how he obtained Norrell's coins. Rollerson's cross-examination of the State's witnesses did not produce strong evidence that someone else committed the burglary. The trial court was in the best position to judge the credibility of Rollerson's theory of the case. The record does not reflect that a beyond-a-reasonable-doubt standard could not have been met.

            Accordingly, we hold that the evidence presented at trial was both legally and factually sufficient to support Rollerson's conviction for burglary of a habitation.

Theft of a Firearm

            A person commits the offense of theft if, without the effective consent of the owner, the person appropriates property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a). The record shows that firearms and coins were taken from Norrell's home without his consent. As discussed above, the evidence is both legally and factually sufficient to show that Rollerson was the person responsible for taking those items. Therefore, for the reasons already discussed, we hold the evidence is both legally and factually sufficient to support Rollerson's conviction for theft of a firearm.

Felon in Possession of a Firearm

            A person commits the offense of unlawful possession of a firearm if that person has been convicted of a felony and possessed a firearm at any location other than the premises at which the person lives. Tex. Pen. Code Ann. § 46.04(a)(2). Rollerson stipulated at trial that he had been convicted of the felony offenses of burglary of a habitation and failure to stop and render aid May 19, 1998. We have already found the evidence to be both legally and factually sufficient to show that Rollerson burglarized Norrell's home and stole a firearm. These actions necessarily entail that Rollerson possessed a firearm at one point. Therefore, given that Rollerson stipulated he had a felony conviction, we find the evidence legally and factually sufficient to support Rollerson's conviction for the offense of unlawful possession of a firearm.

Deadly Weapon Finding Improper

            The trial court made an affirmative finding that Rollerson used and exhibited a firearm during the commission of each offense or during the immediate flight therefrom. Rollerson challenges the sufficiency of the evidence to support these findings.

            There is no evidence in the record that Rollerson carried a firearm into Norrell's home during the burglary. The trial court appears to have based its findings solely on Rollerson's possession of the firearms stolen during the burglary. To review evidence for legal sufficiency, this Court must view the evidence in the light most favorable to the verdict and determine if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). When applied to the special issue regarding the use or exhibition of a deadly weapon during the commission of a felony offense, the question facing this Court is whether a rational trier of fact could find beyond a reasonable doubt that the mere possession of firearms facilitated the associated felony. Gale v. State, 998 S.W.2d 221, 223–24 (Tex. Crim. App. 1999).

            The Texas Court of Criminal Appeals has said, "'[U]sed . . . a deadly weapon' during the commission of the offense means that the deadly weapon was employed or utilized in order to achieve its purpose. Whereas 'exhibited a deadly weapon' means that the weapon was consciously shown or displayed during the commission of the offense." Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). Even simple possession of a firearm may be sufficient to support a deadly weapon finding if such possession facilitates the associated felony. Id. at 941.

            In Patterson, the appellant was convicted of possession of a controlled substance. A search team executing a search warrant at a private residence found the appellant sitting on a couch in the living room. A loaded .45 caliber revolver was found by the arresting officer concealed between the appellant's leg and the end of the sofa. The officer also found the appellant's wallet and a pistol "boot" holding ammunition for a .45 caliber weapon on a table next to the couch. Id. at 939. The court found there was sufficient evidence to uphold the jury's finding that he used or exhibited a deadly weapon in the course of possessing the contraband. Id. at 942. The court approved the intermediate court's determination "that a rational trier of fact could find that appellant 'used' the firearm during the commission of the felony offense of possessing the contraband, in a sense that the firearm protected and facilitated appellant's care, custody, and management of the contraband." Id.            The Texas Court of Criminal Appeals has held that, where the associated felony is unlawful possession of a firearm by a felon, an affirmative deadly weapon finding cannot be based solely on the defendant's possession of the firearm. Narron v. State, 835 S.W.2d 642 (Tex. Crim. App. 1992); Ex parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992). As noted, the trial court's finding was based solely on Rollerson's mere possession of a firearm. Therefore, the affirmative deadly weapon finding pertaining to Rollerson's conviction for the offense of unlawful possession of a firearm by a felon is improper.

            The deadly weapon findings pertaining to the burglary and theft convictions are also improper. Unlike other burglary cases, there is no evidence that Rollerson handled the firearm in such a manner that would indicate he intended to use it for some purpose other than simply stealing it. In Gregg v. State, 820 S.W.2d 191 (Tex. App.—Fort Worth 1991, no pet.), during the burglary, the appellant found a shotgun in the closet of the master bedroom of the complainant's home, loaded the gun, and placed it on top of the bed in that room. The court held the appellant's actions were sufficient to support a deadly weapon finding because,

Certainly he would not have gone to the trouble to load the gun and place it in such an accessible position had he simply intended to steal the gun; rather, the gun was "used" for the purpose of effectuating this burglary in that the appellant could have fired it upon being surprised or caught in the home by the complainant or a family member, the police, or anyone else. Although he was not in actual physical possession of the shotgun at the time of his arrest on the premises, appellant's act of finding, loading, and moving the gun, constituted sufficient control and possession of the gun as to support a finding that he "used" the gun during the commission of the offense.

Id. at 193. The clear implication from Gregg is that, if the defendant had "simply intended to steal the gun" without the other factors of loading and moving it, a finding that the gun was "used" could not have been sustained.

            In contrast, here there is no evidence Rollerson loaded the firearm, or positioned it in such a way that he could use it against someone if he was surprised. The record shows that no one was home when Rollerson committed the burglary and theft. Rollerson was not confronted by law enforcement officials until the next day, and he did not possess a firearm at that time. Rollerson's possession of the firearm did not facilitate the burglary, as that crime would have been complete whether or not he found and possessed the weapon. Nor did the firearm facilitate his flight from the burglary, as he was not confronted by anyone, either civilian or law enforcement officials. His possession of the firearm did not facilitate the theft, as it was his very act of possession that constituted the crime.

            As the court stated in Petty, "In the present case, the weapon was not 'used' in furtherance of any collateral felony. Thus, because there was no associated felony facilitated by the Applicant's possession of the deadly weapon, the holding in Patterson dictates that the affirmative finding of the use of a deadly weapon was error." Petty, 833 S.W.2d at 145–46. The same is true here. Therefore, the trial court erred by entering an affirmative deadly weapon finding with respect to the burglary and theft convictions.

            We affirm the convictions, but reform the judgment to delete the affirmative deadly weapon findings with respect to all three convictions.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          March 24, 2006

Date Decided:             May 17, 2006

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