Fredrick Eugene Williams v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00185-CR
FREDRICK EUGENE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 47,613-B
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
After Frederick Eugene Williams was arrested for criminal trespass at a McDonald’s
restaurant in Longview, Officer David Cheatham transported him to the Longview Police
Department (LPD). During the eighteen-minute transport, Williams threatened, inter alia, to blow
Cheatham’s head off, to beat him to death, and to put a bullet in his head. As a result, Williams
was convicted by a jury, as indicted, for the offense of retaliation 1 and was sentenced to fifteen
years’ imprisonment. 2
On appeal, Williams complains that (1) his arrest and detention were illegal, (2) his post-
arrest threats were protected speech because of the arresting officers’ abuse of authority, (3)
insufficient evidence supports his conviction, (4) the trial court reversibly erred in admitting an in-
car recording, and (5) the trial court’s response to a jury note was an impermissible comment on
the weight of the evidence. We find that (1) Williams failed to preserve his complaints (a)
regarding his arrest and detention, (b) that his post-arrest threats were protected speech because of
the officers’ alleged abuse of authority, and (c) regarding the trial court’s response to a jury note;
(2) sufficient evidence supports his conviction; and (3) the trial court did not abuse its discretion
by admitting the recording. However, we modify the trial court’s nunc pro tunc judgment to reflect
the correct district court, and we affirm the trial court’s judgment, as modified.
1
See TEX. PENAL CODE ANN. § 36.06(a)(1)(A).
2
Williams’ punishment was enhanced because of a prior felony conviction. See TEX. PENAL CODE ANN. § 12.42(a).
2
I. Preservation of Error
Generally, to preserve a complaint for appellate review, the complaining party must have
made a timely request, objection, or motion in the trial court that “stated the grounds for the ruling
that the complaining party sought . . . with sufficient specificity to make the trial court aware of
the complaint, unless the specific grounds were apparent from the context,” and obtain a ruling or
a refusal to rule on the complaint by the trial court. TEX. R. APP. P. 33.1(a). Almost all error, even
constitutional error, may be forfeited if not asserted in the trial court. See Reyna v. State, 168
S.W.3d 173, 177–79 (Tex. Crim. App. 2005).
Although Williams has stated his first and second issues separately, they are dependent on
each other, and he combines his argument concerning them. As we understand his argument,
Williams asserts that Cheatham had no probable cause to arrest him for criminal trespass, and
therefore his initial arrest was unlawful. Since there was no probable cause to arrest him, he argues,
Cheatham abused his authority when he forcibly confined and restrained Williams. Consequently,
he concludes, the threats that he made against Cheatham while he was restrained and under arrest
were protected speech since they were a protest against the unlawful use of authority.
However, Williams did not preserve these complaints by presenting them to the trial court.
He did not challenge the legality of his initial arrest or Cheatham’s abuse of authority in a motion
to suppress, and he made no objection to the admission of testimony or other evidence of his threats
against Cheatham based on the illegality of his arrest or Cheatham’s abuse of authority. See
3
Davidson v. State, 422 S.W.3d 750, 754 (Tex. App.—Texarkana 2013, pet. ref’d). 3 Williams also
never asserted that the threats were protected speech as a protest against an unlawful arrest and
abuse of authority. Consequently, Williams has not preserved these complaints for our review.
See TEX. R. APP. P. 33.1(a). We overrule Williams’ first and second issues.
Williams also complains in his fifth and sixth issues that that the trial court committed
reversible error when it made an impermissible comment on the weight of the evidence in its
response to a jury note. During jury deliberations, the jury sent a note requesting another verdict
form. After a discussion with the State and Williams, the trial court proposed to respond, “The
verdict form you have is the official verdict. Please make any corrections you deem necessary to
make sure the verdict form reflects your correct verdict.” When asked if there was any objection,
Williams responded, “That sounds good.” Thus, at trial, Williams agreed with the trial court’s
proposed response. When a party agrees with a trial court’s proposed response to a jury note, it
procedurally defaults any claimed error in the trial court’s answer to the jury note. See Word v.
State, 206 S.W.3d 646, 652 (Tex. Crim. App. 2006); Green v. State, 912 S.W.2d 189, 193 (Tex.
Crim. App. 1995). Therefore, Williams has presented nothing for our review. We overrule
Williams’ fifth and sixth issues.
II. Sufficient Evidence Supports the Jury’s Verdict
In his third issue, Williams complains that the jury’s verdict was not supported by legally
sufficient evidence. In evaluating legal sufficiency, we review all the evidence in the light most
3
While having no precedential value, we may take guidance from unpublished cases “as an aid in developing reasoning
that may be employed.” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref’d) (quoting
Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
4
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. Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010) (plurality op.) (citing 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 legal
sufficiency review focuses on the quality of the evidence presented. 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 conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” 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).
In drawing reasonable inferences, the jury “may use common sense and apply common
knowledge, observation, and experience gained in the ordinary affairs of life.” Duren v. State, 87
S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. struck) (citing Manrique v. State, 994 S.W.2d
640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)). Further, the jury is the sole judge of
the credibility of the witnesses and the weight to be given their testimony, and it may “believe all
of a witnesses’ testimony, portions of it, or none of it.” Thomas v. State, 444 S.W.3d 4, 10 (Tex.
Crim. App. 2014). We give “almost complete deference to a jury’s decision when that decision is
based on an evaluation of credibility.” Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App.
2008).
In our review, we consider “events occurring before, during and after the commission of
the offense and may rely on actions of the defendant which show an understanding and common
5
design to do the prohibited act.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). It is not required that
each fact “point directly and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.” Id.
Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a
defendant, and guilt can be established by circumstantial evidence alone. Ramsey v. State, 473
S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004)). Further, “we must consider all the evidence admitted at
trial, even if that evidence was improperly admitted.” Fowler v. State, 517 S.W.3d 167, 176 (Tex.
App.—Texarkana 2017), rev’d on other grounds by 544 S.W.3d 844 (Tex. Crim. App. 2018)
(citing Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004)).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by
a hypothetically correct jury charge. 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. Under its indictment and the applicable statute, the State was required
to prove beyond a reasonable doubt that Williams (1) intentionally or knowingly (2) threatened
Cheatham (3) by an unlawful act, to wit, capital murder, murder, aggravated assault, or assault
against a peace officer, (4) in retaliation for or on account of (4) the service or status of Cheatham,
6
(5) who Williams knew was a public servant, namely a peace officer employed by the City of
Longview. See TEX. PENAL CODE ANN. § 36.06(a)(1)(A).
In his argument, Williams does not challenge the sufficiency of the evidence to support the
jury’s implied finding that the State proved each of the elements required by Section 36.06 beyond
a reasonable doubt. 4 Rather, Williams relies on his first and second issues to argue that his threats
were justified because of his unlawful arrest and Cheatham’s alleged abuse of his authority.
The Texas Penal Code states,
The threat of force is justified when the use of force is justified by this chapter. For
the purposes of this section, a threat to cause death or serious bodily injury by the
production of a weapon or otherwise, as long as the actor’s purpose is limited to
creating an apprehension that he will use deadly force if necessary, does not
constitute the use of deadly force.
TEX. PENAL CODE ANN. § 9.04. The Texas Court of Criminal Appeals has held, “Section 9.04 is
not a separate statutory defense; rather, it is incorporated into the law of self defense.” Gamino v.
State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). Therefore, if the evidence at trial showed
that Section 9.04 applied, then Williams would have been entitled to an instruction on self-defense
under Section 9.31 of the Texas Penal Code. 5 See id. However, even if Williams would have been
entitled to an instruction on self-defense, the trial court has no duty to include an instruction on a
4
The evidence at trial showed that Cheatham was wearing his LPD uniform when he responded to the criminal trespass
complaint at the McDonald’s restaurant. After Williams was arrested for criminal trespass and placed in Cheatham’s
marked patrol vehicle, he began cursing and spitting all over the backseat area of the vehicle. During his transport to
the LPD, Williams made a number of threats against Cheatham, including “You better hope I don’t find out where
you live,” “I’m going to blow your goddamn head off,” “I’ll spit in your face,” and “[I’ll] beat your bitch ass to
death.” In referring to Cheatham’s family, Williams told him, “I’ll round all you bitches up and put a bullet in all you
bitches’ head.” He also said he might pay someone to shoot Cheatham and told him, “Your better hope your car is
bulletproof.” We find this evidence legally sufficient to support the jury’s verdict.
5
See TEX. PENAL CODE ANN. § 9.31.
7
defensive issue unless requested by the defendant. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim.
App. 2013).
If an instruction on self-defense is requested and given by the trial court, then this defensive
issue would be included in the jury’s deliberation, 6 and we would include it in our sufficiency
analysis. See Braughton, 569 S.W.3d at 608–09 (explaining the framework for evaluating a claim
of insufficient evidence when the defendant claims self-defense). However, in this case, Williams
did not request an instruction on self-defense, and the trial court did not include such an instruction
sua sponte. Consequently, the jury was never asked to consider self-defense as part of its
deliberations, and we may not include it as part of our sufficiency analysis.
Because Williams only challenges the sufficiency of the evidence regarding his Section
9.04 defense, which was not asserted at trial, and since we find that sufficient evidence supports
the jury’s verdict, we overrule Williams’ third issue.
III. The Trial Court Did Not Abuse its Discretion by Admitting the In-Car Recording
In his fourth issue, Williams complains that the trial court abused its discretion by admitting
Cheatham’s in-car recording of Williams’ transport to the LPD. The in-car recording shows
Williams frequently spitting inside the car, constantly cursing Cheatham, and making the threats
against Cheatham and his family as set forth in footnote 4. It also shows Cheatham’s reactions to
Williams’ words and actions. Williams argues that admitting the video recording into evidence
6
“[T]he issue of self-defense is an issue of fact to be determined by the jury.” Braughton v. State, 569 S.W.3d 592,
609 (Tex. Crim. App. 2018).
8
was unfairly prejudicial and that it should have been excluded under Rule 403 of the Texas Rules
of Evidence. 7
A trial court’s Rule 403 determination is reviewed for an abuse of discretion. Pawlak v.
State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013). “[A] trial court does not abuse its discretion
when it admits or excludes evidence pursuant to Rule 403 so long as its decision is within the zone
of reasonable disagreement.” James v. State, 555 S.W.3d 254, 260 (Tex. App.—Texarkana 2018,
pet. dism’d, untimely filed) (citing De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App.
2009)).
In our analysis of the trial court’s ruling under Rule 403, we should consider (1) how
compellingly the evidence tends to make a fact of consequence more or less probable, (2) the
potential that the evidence will impress the jury in some irrational but indelible way, (3) the time
needed to develop the evidence, and (4) the proponent’s need for the extraneous-offense evidence.
Id. (citing Hartsfield v. State, 305 S.W.3d 859, 873 (Tex. App.—Texarkana 2010, pet. ref’d)
(citing Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002))). “Rule 403 favors
admissibility, and ‘the presumption is that relevant evidence will be more probative than
prejudicial.’” Id. (quoting Montgomery, 810 S.W.2d at 389). Only if the danger of unfair prejudice
substantially outweighs the probative value of the evidence will we find that the trial court abused
its discretion in admitting the evidence. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App.
2002).
7
See TEX. R. EVID. 403 (providing that relevant evidence may be excluded if its probative value is substantially
outweighed by, inter alia, unfair prejudice).
9
In this case, the State needed to show that Williams made the threats against Cheatham as
it had alleged. Williams’ defensive argument at trial was that his threats were the result of
Cheatham and other officers forcefully detaining him, taunting him, and escalating an already
stressful situation. Since all of Williams’ threats were made while he was alone with Cheatham,
the State needed the in-car recording to confirm not only Cheatham’s testimony, but to refute
Williams’ defensive theory. Also, allowing the jury to hear a recording of the threats actually
spoken by Williams compellingly demonstrated the nature and extent of those threats. Further,
the recording was only approximately eighteen minutes long, so the State did not expend an
inordinate amount of time in developing this evidence. Finally, although the recording shows
Williams spitting in the car and cursing Cheatham, it is unlikely that a rational jury would not be
able to separate Williams’ conduct from his threats in its consideration of the indicted offense.
Williams does not challenge the probative value and the admissibility of the video
recording of his threats, or the State’s need for this evidence. Rather, he focuses his argument on
the fact that the recording also showed Williams spitting and cursing the officer. He argues that
the jurors would have been shocked by that behavior and that his threats would have become
inextricably bound up with that other conduct. While we agree that his behavior was offensive,
we believe the danger that it impressed the jury in an irrational and indelible way was slight.
Based on this record, we find that the danger of unfair prejudice did not substantially
outweigh the probative value of the recording. Therefore, we find that the admission of the
recording by the trial court was within the zone of reasonable disagreement and that the trial court
did not abuse its discretion. We overrule Williams’ fourth issue.
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IV. Modification of the Judgment
The clerk’s record shows that the indictment and all of the pleadings and discovery in this
case were filed in the 124th Judicial District Court, but that the Honorable David Brabham, judge
of the 188th Judicial District Court, sat as the substitute judge for the trial of this case. The nunc
pro tunc judgment of conviction in this case mistakenly recites in its heading that the case was in
the 188th District Court.
This Court has authority to modify judgments to speak the truth when the necessary
information is available to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28
(Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).
Accordingly, we modify the trial court’s judgment to show that the nunc pro tunc judgment of
conviction was in the 124th District Court.
For the reasons stated, we modify the trial court’s nunc pro tunc judgment of conviction to
reflect that the judgment of conviction is in the 124th Judicial District Court, and we affirm the
trial court’s judgment, as modified.
Ralph K. Burgess
Justice
Date Submitted: June 6, 2019
Date Decided: July 10, 2019
Do Not Publish
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