Joseph Alexander Swansey v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00342-CR
NO. 09-18-00343-CR
NO. 09-18-00344-CR
NO. 09-18-00345-CR
NO. 09-18-00346-CR
NO. 09-18-00347-CR
NO. 09-18-00348-CR
__________________
JOSEPH ALEXANDER SWANSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 411th District Court
Polk County, Texas
Trial Court Cause Nos. 25,406, 25,407, 25,408,
25,409, 25,410, 25,411, 25,412
__________________________________________________________________
MEMORANDUM OPINION
Joseph Alexander Swansey appeals from his convictions on seven felonies,
which are all based on one incident when Swansey fired a rifle at a house where his
1
former girlfriend “Sally” and five others, including her current boyfriend, lived.1 The
record from the trial shows that in March 2017, the Polk County Sheriff’s Office
sent Deputy Josh Sanders to a house in Polk County to investigate a complaint
Sally’s boyfriend “John” made that morning about a text message that Swansey sent
Sally. The message stated that “he was going to come kill [John].”
Swansey drove a truck into the driveway of the home. After he pulled into the
driveway, Swansey rolled down the window of his truck and fired a rifle at the
people standing in front of the house. The group outside the house included
Swansey’s former fiancé, “Sally,” John, members of their respective families, and
Deputy Sanders. John’s mother was inside the home.
Subsequently, to address the shooting, the State filed seven separate
indictments against Swansey, trial court cause numbers 25,406-25,412. The cases
were then handled before a jury in a consolidated trial involving all seven of the
cases. Swansey resolved trial court cause number 25,406, the case in which the State
indicted him for the attempted capital murder of Deputy Sanders, by pleading guilty
to a lesser offense, aggravated assault on a public servant. Even though he pleaded
1
Except for the deputy sheriff and Swansey, who was also at the house, the
names we have used in the opinion referring to the others who were at the house
when the shooting occurred are fictitious. See Tex. Const. art. I, § 30 (granting crime
victims “the right to be treated with fairness and with respect for the victim’s dignity
and privacy throughout the criminal justice process”).
2
guilty in that case, Swansey had the jury decide his punishment in that case and the
parties tried issues of guilt and punishment in the remaining six cases, causes 25,407-
25,412. In those cases, which addressed the shots he fired at everyone else who was
at John’s house, the State tried Swansey on six counts of aggravated assault that
involved his use of a deadly weapon.
In the guilt-innocence phase of his trial in trial court cause number 25,407, the
case involving Swansey’s indictment for shooting at John, the jury found Swansey
guilty of aggravated assault with a deadly weapon. In the remaining cases (cause
numbers 25,408, 25,409, 25,410, 25,411, and 25,412), however, the cases involving
other indictments, the jury found Swansey guilty on five counts of deadly conduct,2
a lesser-included offense from the more serious offense of aggravated assault.
In the punishment hearing that followed, the jury found that Swansey should
serve a substantial sentence. In the case involving his conviction in cause number
25,407, the jury gave Swansey a ninety-nine-year sentence based on shooting at
Deputy Sanders. In the case involving Swansey’s conviction for shooting at John,
the jury assessed a nineteen-year sentence. In the remaining five cases, which
2
Tex. Penal Code Ann. § 22.05(b) (“A person commits an offense if he
knowingly discharges a firearm at or in the direction of: (1) one of more individuals;
or (2) a habitation, building, or vehicle and is reckless as to whether the habitation,
building, or vehicle is occupied.”).
3
involved convictions on five counts of deadly conduct, the jury assessed ten-year
sentences. In all seven of the cases, the jury also assessed fines of $10,000.
Swansey raised eight issues in the brief he filed to support his appeal. In
Swansey’s first issue, he argues the trial court erred when it denied his motion for
mistrial. Swansey made the motion for mistrial while Texas Ranger Brandon Bess
was on the stand. During Ranger Bess’s testimony, the prosecutor objected to a
question that Swansey’s attorney asked Ranger Bess on the basis that the question
called for hearsay. The record shows Swansey’s attorney asked Ranger Bess to
testify whether Swansey told him why he “broke off the attack[.]” The prosecutor,
expounding on his hearsay objection, then said: “Why [Swansey] broke off the
attack, there’s one way to get that before this jury, and it’s not through this witness.”
Swansey moved for mistrial, arguing that the question amounted to a comment by
the prosecutor that criticized Swansey for exercising his right not to testify in the
trial.
In issue two, Swansey complains about another of the trial court’s ruling
admitting evidence in the guilt-innocence phase of his trial. In this issue, Swansey
suggests the trial court erred when, at the State’s request, the court allowed the jury
to hear a motorist testify that, following the shooting at John’s house, Swansey shot
4
at her after he passed her in his truck.3 Relying on Rule 404 of the Texas Rules of
Evidence, Swansey argues that the motorist’s testimony, which described his
conduct when he passed another motorist after the shooting, was conduct of an
extraneous crime or bad act that the trial court should have excluded in his trial.4
Swansey’s next three issues, issues three through five, complain about various
errors that he argues occurred in the punishment phase of his trial. In issue three,
Swansey argues the trial court erred by admitting six recordings of telephone calls
that he made from jail following his arrest. Swansey suggests the trial court erred in
admitting the recordings into evidence either because they were not relevant, or
because they were more prejudicial than probative on the issues that were relevant
in punishment. In issue four, Swansey complains the trial court erred by allowing
the State to call Dr. Sheri Gaines, a psychiatrist, to rebut his mother’s testimony
about Swansey’s mental condition and to express an opinion that Swansey is so
dangerous he cannot be reformed. In issue five, Swansey argues the trial court erred
by excluding testimony he wanted to introduce through Ranger Bess to show that
Swansey apologized to the officer for firing a rifle at John’s home.
3
See Tex. R. Evid. 404 (Character Evidence; Crimes or Other Acts).
4
Id.
5
 In issues six and seven, Swansey argues the trial court erred by taxing him
with certain costs of court. To support his argument, Swansey notes the Court of
Criminal Appeals has declared certain costs, which the trial court required him to
pay in the seven judgments, to be unconstitutional. In his last issue, issue eight,
Swansey contends that, because the State tried him in a single proceeding, the trial
court could not render a judgment that fined him more than once and that in these
judgments, the judgments require that he pay seven $10,000 fines.
For the reasons explained below, we conclude that Swansey’s first two issues,
which concern alleged errors in the guilt-innocence phase of his trial, lack merit. We
affirm Swansey’s conviction in all seven of the cases. Turning to Swansey’s
remaining issues, which address the punishment phase of his trial, we conclude that
the trial court erred by admitting parts of the recorded telephone conversations that
occurred between Swansey and members of his family while he was in jail. We
further conclude that the record does not provide fair assurance sufficient to establish
that those errors did not affect Swansey’s substantial rights. Based on our conclusion
that errors affecting Swansey’s substantial rights occurred during the punishment
phase of the trial, we reverse the seven judgments limited to the verdicts on
punishment only. To remedy these errors, we remand the cases, trial court causes
25,406-25,412, to the trial court for new trials on punishment.
6
Factual Background
We discuss the background facts only as required to explain our resolution of
the issues in Swansey’s brief. As Swansey acknowledges, most of the facts that led
to the shooting are undisputed. The testimony in the trial shows that Swansey and
Sally broke up in late 2016 or early 2017. When they broke up, she moved out. The
month Sally left Swansey, she began dating John. Shortly after that, Sally and John
began living together, along with John’s two children and Sally’s and Swansey’s
son, “Bill.”
On March 6, 2017, Bill fell ill. When Swansey learned Bill was ill, he wanted
to see Bill. Sally would not allow him to do so. Angry that Sally was not letting him
see his son and upset that she was living with John, who had been one of Swansey’s
best friends, Swansey sent Sally a text message in the early morning hours of March
7, 2017. In the message, Swansey stated he intended to kill John. When John learned
that Swansey had threatened to kill him, he reported the threat to the Polk County
Sheriff’s Office. The Sheriff’s Office sent Deputy Sanders to investigate John’s
complaint. Deputy Sanders pulled his SUV into the driveway of John’s home. The
SUV has emergency lights and is marked with the word “SHERIFF” in large letters
on the SUV’s back door.
7
John and Sally came outside to talk to Deputy Sanders. While Deputy Sanders
was waiting for John to complete his written statement about the threat, a white truck
turned into the driveway. John recognized Swansey as the person driving the truck.
As Deputy Sanders approached the truck, he “saw a barrel of a rifle come out of the
driver’s side window.” Deputy Sanders moved behind his SUV and drew his pistol.
Swansey opened fire. Deputy Sanders fired back. Deputy Sanders testified the
shootout lasted about one or two minutes. Several bullets from Swansey’s rifle hit
the deputy’s SUV. Others struck areas inside and outside John’s home. The
testimony in the trial described the positions of the people inside and outside John’s
home when the shooting occurred. Photographs in evidence show the damage bullets
from Swansey’s rifle did to the SUV and the house. When Swansey quit shooting,
he backed out of the driveway and took off. Sanders gave chase in his SUV. After
backing out of the driveway, Deputy Sanders activated his emergency lights.
Swansey refused to stop. Soon after, Deputy Sanders lost sight of Swansey’s truck.
While making his getaway, Swansey passed a car driven by “Barbara.”5
Barbara testified in the trial. Barbara explained that she began following Swansey’s
truck when she noticed he was being chased by a police officer. At one point,
5
“Barbara” is a fictitious name. Swansey fired his gun several times at
Barbara’s car when he passed her in is truck. Barbara’s testimony about this shooting
is an extraneous crime that is the subject of Swansey’s complaint in issue two.
8
Swansey, while driving his truck, fell behind Barbara’s car. When Swansey caught
up, he discharged his gun at Barbara’s car when he passed her in his truck. Shortly
after that, Swansey lost control of his truck while turning, which allowed Deputy
Sanders to catch up. After that, Deputy Sanders found Swansey and placed him
under arrest.
In closing argument, Swansey’s attorney argued that Swansey did not
knowingly or intentionally threaten anyone other than Deputy Sanders with his gun.
In the case involving the indictment that charged Swansey with firing at John, the
jury found Swansey guilty of aggravated assault with a deadly weapon, a first-degree
felony.6 In the other five cases, which involved the shots Swansey fired toward the
house while Sally, three children, and John’s mother were there, the jury found
Swansey guilty on five counts of deadly conduct. 7 As previously mentioned,
Swansey pleaded guilty to the indictment charging him with committing an
aggravated assault against a public servant, which is the case that involved
Swansey’s conduct in shooting at Deputy Sanders.
6
See Tex. Penal Code Ann. § 22.02(b) (the aggravated assault elevates the
penalty to a first-degree felony if the defendant uses a deadly weapon in committing
the assault or uses a deadly weapon during the commission of an assault against a
public servant acting under color of the servant’s office).
7
See id. § 22.05.
9
 Analysis
Motion for Mistrial
In his first issue, Swansey argues the trial court erred by denying his motion
for mistrial. According to Swansey, when the prosecutor made a hearsay objection
to the question his attorney posed to Ranger Bess, the prosecutor made a comment
highlighting the fact that Swansey was not going to testify during the trial.
Swansey’s argument suggest the prosecutor knew Swansey would not testify,
but the record does not support that claim. The prosecutor lodged the hearsay
objection to a question that Swansey’s attorney asked in the guilt-innocence phase
of the trial during the State’s case-in-chief. And the prosecutor did not specifically
mention Swansey in his objection. Instead, the prosecutor, while explaining the basis
of his hearsay objection, said “there’s one way to get that before this jury, and it’s
not through this witness.” The transcript of the trial shows that Swansey did not
immediately move for a mistrial when the prosecutor made the above comment.
Swansey did raise his objection, however, a short time later when the court recessed
the trial for lunch. 8 The trial court heard the motion during the lunch break. The State
8
In part, the State argues Swansey failed to perfect his complaint about the
comment because he did not object when the comment occurred. The transcript from
the trial shows that Swansey asked Ranger Bess around five more questions before
moving for a mistrial. The trial court denied the motion before the prosecutor
responded to Swansey’s motion, and the court did not state the reason it was denied.
10
suggests in its brief that Swansey failed to preserve the alleged error because he
failed to object immediately when the prosecutor made the comment in the trial. But
we need not decide whether the short delay that is at issue here resulted in a waiver
of Swansey’s right to complain to resolve whether the record shows that any
reversible error based on the comment occurred. 9
When ruling on a motion for mistrial, courts are to grant the motions “[o]nly
in extreme circumstances, where the prejudice is incurable[.]”10 When the motion
concerns an allegedly improper comment by the prosecutor about the defendant’s
right not to testify, “the offending language must be viewed from the jury’s
standpoint and the implication that the comment referred to the defendant’s failure
to testify must be clear.” 11 Thus, comments that do not directly refer to a defendant’s
failure to testify are generally not sufficiently “clear” when the comment merely
Ranger Bess had not been excused as a witness, and he returned after lunch to
complete his testimony. After lunch, Ranger Bess returned to the witness stand and
Swansey finished questioning him about the investigation he did into the shooting.
9
See Tex. R. App. P. 33.1(a)(1) (requiring a timely request, objection, or
motion that makes the trial court aware of the complaint to preserve error). To
resolve the issue, we assume without deciding the short delay did not operate as a
waiver of Swansey’s complaints about the comment for the purposes of this appeal.
10
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wood v. State,
18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (explaining that a mistrial halts a trial
proceeding when error is so prejudicial that expenditure of further time and expense
would be wasteful and futile).
11
Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001).
11
implies or alludes to a defendant’s failure to testify.12 “The test is whether the
language used was manifestly intended or was of such a character that the jury would
necessarily and naturally take it as a comment on the defendant’s failure to testify.”13
The record before us does not meet the above tests. The comment arose when
the State was presenting its case-in-chief. And it occurred in the context of an
argument the prosecutor raised complaining that the question Swansey’s attorney
asked Ranger Bess called for hearsay.14 In the comment, the prosecutor did not
identify Swansey as the person who was the only witness who could testify about
Swansey’s statement. And when the prosecutor made the comment, nothing in the
record shows he knew that Swansey was not planning to testify at some point in the
guilt-innocence phase of the trial.15 For these reasons, we cannot construe the
statement as one that was “manifestly intended” as a comment on Swansey’s failure
to testify. 16 Thus, we cannot say the jury would have necessarily taken the
12
Id.
13
Id.
14
Tex. R. Evid. 802 (The Rule Against Hearsay).
15
Perhaps the prosecutor thought Swansey would testify in his trial. In
opening statement, Swansey’s attorney told the jury that he believed the jury would
find Swansey not guilty, explaining “I can just tell you that you will see his intent
was aimed at the officer in that vehicle.” The prosecutor possibly concluded from
this comment that Swansey’s attorney intended to call him to testify in the trial.
16
See Bustamante, 48 S.W.3d at 765.
12
prosecutor’s argument to mean that Swansey was not planning to testify in the trial.17
We conclude the trial court did not abuse its discretion by denying Swansey’s
motion.18
Extraneous Evidence
In his second issue, Swansey argues the trial court abused its discretion by
allowing the State to question Barbara about Swansey shooting at her when he
passed her in his truck. 19 According to Swansey, Barbara’s testimony about the fact
Swansey shot at her was inadmissible because it was evidence of a bad act or crime
and therefore inadmissible under Rule 404(b) of the Texas Rules of Evidence. In
appeals challenging the admissibility of evidence under Rule 404, we review a trial
court’s ruling that allowed the jury to consider the evidence for abuse of discretion.20
A trial court does not abuse its discretion if its ruling was correct under any theory
of law that applies to the defendant’s case.21
17
Id.
18
Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010) (“A trial
judge’s denial of a motion for mistrial is reviewed under an abuse of discretion
standard[.]”).
19
Swansey objected to Barbara’s testimony in the trial and preserved his right
to complain in his appeal that her testimony about shooting at her was inadmissible
in a trial that involved the shots Swansey fired at Deputy Sanders and at John’s
home. The trial court overruled Swansey’s objection and allowed Barbara to testify.
20
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (citing Prible
v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005)).
21
Id. (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)).
13
While Rule 404(b) has many exceptions, it generally prohibits parties from
introducing evidence showing that a defendant committed another crime, wrong, or
act when the other crime, wrong, or act the witness is referring to is not the crime,
wrong, or bad act that is on trial.22 In its brief, the State argues that the trial court
had the discretion to admit Barbara’s testimony because it revealed the facts and
circumstance relevant to showing the context in which the offenses for which
Swansey was on trial occurred. According to the State, the trial court had the
discretion to allow Barbara to testify that Swansey shot at her after leaving John’s
house because it is contextual evidence that is permissible under exceptions to Rule
404(b).
Rule 404(b) contains numerous exceptions. 23 And even the exceptions
specifically listed in Rule 404(b) are not exhaustive.24 For example, some of the
exceptions to Rule 404(b) allow trial courts to admit evidence showing a defendant
committed an extraneous crime if the evidence about the extraneous crime is relevant
to proving the defendant’s “motive, opportunity, intent, preparation, plan,
22
Tex. R. Evid. 404(b)(1) (“Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”).
23
Id. 404(b)(2).
24
Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on
rehearing).
14
knowledge, identity, or absence of mistake or accident” on the crime on which the
defendant is tried. 25 At trial, the State argued Barbara’s testimony put the crime in
context. Explaining the same-transaction, contextual evidence exception, the Court
of Criminal Appeals explained that evidence about an extraneous crime or bad act
may “be admissible as same-transaction, contextual evidence where ‘several crimes
are intermixed, or blended with one another, or connected so that they form an
indivisible criminal transaction and full proof by testimony, . . . , of any one of them
cannot be given without showing the others.’”26
Here, the record supports the trial court’s ruling to admit Barbara’s testimony
as same-transaction, contextual evidence. The testimony in the trial supports the
inference that Swansey was aware the police were chasing him after he left John’s
house. Under the circumstances, the trial court could reasonably infer that Swansey
fired at Barbara to injure her or to disable her car in an effort to create a distraction
that required the officers chasing him to discontinue the chase so they could
investigate whether Barbara needed immediate care. Under Texas law, evidence
about the efforts defendants make to avoid arrest may be relevant to prove the
25
Devoe, 354 S.W.3d at 469.
26
Id. (quoting Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000)).
15
defendant committed the crime for which he was tried.27 Thus, evidence showing
the defendant engaged in conduct designed to avoid arrest after committing the crime
that is the subject of the trial is evidence from which the jury can infer the defendant
was attempting to evade his arrest because he knew he committed the crime or
crimes involved in the trial.28
Here, none of the evidence shows Swansey would have fired at Barbara for
any reason other than to evade arrest on the crimes at issue in his trial. Even if another
explanation existed, and we see none, they “would go to the weight, not the
admissibility, of the evidence.”29 We conclude the trial court did not abuse its
discretion by admitting the evidence that Swansey shot at Barbara after leaving
John’s home. Because the trial court did not abuse its discretion by admitting
Barbara’s testimony, we overrule Swansey’s second issue.
27
See Fentis v. State, 582 S.W.2d 779, 781 (Tex. Crim. App. 1976) (evidence
showing the defendant shot a police officer who approached the defendant in
Garland, Texas was admissible in a case involving a murder even though the murder
occurred in Houston more than three months before because showing the defendant
fled arrest is a fact probative of the defendant’s knowledge that he was guilty of
committing a murder).
28
Id.
29
Id.
16
 Recordings of Telephone Conversations from the Jail
In issue three, Swansey complains that, in the punishment phase of the trial,
the trial court erred by admitting portions of the recorded conversations he had with
members of his family while he was in jail. Swansey objected to the recordings
arguing they were not relevant and were overly prejudicial when the State sought to
introduce them at trial. In response to his objections, the trial court listened to the
parts of the recordings the State wanted the court to admit in a hearing outside the
presence of the jury. The court then allowed the State to introduce most of the
recordings the prosecutor wanted the jury to hear in the trial. In its brief, the State
argues that all the conversations the jury heard were relevant and not unduly
prejudicial because they reveal character traits relevant to deciding John’s
punishment for the crimes the jury found he committed in the trial. 30
In the trial, Swansey’s objections to the recordings focus on the same two
concerns: whether the recordings are relevant to issues of punishment and whether
they were unduly prejudicial. In one of the recordings, for example, Swansey can be
heard discussing with his mother why he didn’t want to accept an offer requiring
him to serve a fifty to sixty-year sentence. In others, Swansey mentions the sentences
30
There recordings contain a warning audible to the caller and to the person
who picks up the phone at the beginning of the calls. The warning states “[a]ll phone
calls are subject to monitoring and recording.”
17
that were received by other defendants in other cases, so those cases revolved on
conduct that Swansey then discusses and compares to his. In another recording,
Swansey explained he did not agree that crimes against police officers should be
punished more severely than when the crime involved private citizens. In another,
Swansey criticizes his attorney because he felt the attorney had not communicated
with him enough about his options so he could avoid going to trial. In yet another,
Swansey is heard making derogatory comments about an inmate whom he believed
to be a homosexual. None of the testimony relevant to Swansey’s convictions,
however, show that a sexual animus against homosexuals was a factor in his conduct
involving the cases on which he was tried.
During the hearing to decide whether to admit the recordings, the prosecutor
argued the recordings were relevant because they revealed Swansey’s personal
assessment of his culpability for the crimes. Swansey’s attorney argued that parts of
the recordings were not relevant and if they were relevant, they would be unduly
prejudicial. The trial court sustained Swansey’s objections in part, and it excluded
any statements where anyone stated the exact terms of the plea bargain the
prosecutor offered to Swansey in return for pleading guilty in the seven cases. But
the trial court then allowed the jury to hear Swansey describe why he did not want
to accept a plea offer that would have required him to serve a fifty to sixty-year
18
sentence. In that recording, Swansey’s mother states that if Swansey didn’t like the
offer, he shouldn’t take it. Thus, while the jury did not hear the exact terms of the
proposed plea bargain, it heard the basic terms of the plea that Swansey was offered.
To resolve the dispute, we must first decide whether the parts of the recordings
that Swansey objected to were relevant to the issues the jury should have considered
in punishment. In a punishment hearing, the court may allow the parties to introduce
evidence “as to any matter the court deems relevant to sentencing, including but not
limited to the prior criminal record of the defendant, his general reputation, his
character, [and] the circumstances of the offense for which he is being tried[.]”31
Thus, the Legislature has authorized trial courts to allow the jury to hear the wide-
range of information the jury needs to fashion an appropriate sentence. 32 That said,
trial courts must still restrict the evidence in punishment hearings to the evidence
that is “relevant to sentencing.” 33 Stated another way, the statute does not allow trial
courts to disregard the Rules of Evidence.34 An abuse-of-discretion standard applies
to evidentiary rulings that trial court’s make in the punishment phase of a trial.35
31
Tex. Code. Crim. Proc. Ann. art. 37.07, § 3(a)(1); Beham v. State, 559
S.W.3d 474, 478-79 (Tex. Crim. App. 2018).
32
Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009); Erazo v.
State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004).
33
Ellison v. State, 201 S.W.3d 714, 722 (Tex. Crim. App. 2006).
34
Id.
35
Id.
19
Trial courts do not abuse their discretion if the ruling the defendant challenges is a
ruling that falls within the zone of reasonable disagreement.36
Turning to whether the parts of the recordings that Swansey objected to were
relevant, we note that relevant evidence is evidence that tends to make the existence
of any fact or consequence more or less probable than it would be without the
evidence.37 And relevant evidence may still be excluded if it is unduly prejudicial.38
Evidence is unduly prejudicial when its probative value is substantially outweighed
by the danger of unfair prejudice. 39 “Rule 403 favors the admission of relevant
evidence and carries a presumption that relevant evidence will be more probative
than prejudicial.”40
In part, Swansey argues the trial court should not have allowed the jury to hear
the comments he made in the recordings suggesting he did not think it should matter
whether one of the victims was a police officer. Swansey’s recorded statement
reveals that in his opinion, the lives of police officers deserve no greater protection
than the lives of others. In our opinion, Swansey’s view about police officers is at
least arguably relevant in a case involving a punishment that involved a crime against
36
Id.
37
Tex. R. Evid. 401.
38
Id. 403.
39
Id.
40
Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010).
20
an officer who was on duty when Swansey assaulted the officer. Statements that
reveal how a defendant views the types of people who are victims of the crime the
defendant committed are relevant to how severely the defendant should be punished
for his conduct. And in cases involving public servants, the Penal Code provides a
more severe penalty when the crime is against a public servant who is discharging
his duties.41 Because Deputy Sanders was one of Swansey’s victims and the deputy
was on duty when the crime occurred, Swansey’s comments about police officers
were relevant to his punishment. And the evidence, while prejudicial, was not
unfairly prejudicial to the issues in punishment in the context of this trial.42
That said, we cannot reach the same conclusion about the statements Swansey
made discussing why he decided to reject a plea that would have required him to
serve a fifty to sixty-year sentence. When statements concern plea bargains, the
Court of Criminal Appeals has made it clear that the relevance of discussions about
41
See Tex. Penal Code Ann. § 22.02(b)(2)(B) (elevating aggravated assaults
that cause a serious bodily injury or involve the use of a deadly weapon from a
second degree felony to a first degree felony if the aggravated assault is committed
against “a person the actors know is a public servant while the public servant is
lawfully discharging an official duty”).
42
Tex. R. Civ. P. 403 (allowing court to exclude “relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice”)
(emphasis added).
21
plea bargains are at best minimal.43 Allowing evidence about a potential plea bargain
also carries a significant risk of unfair prejudice because such discussions have a
significant risk they will mislead the jury regarding the things it should be
considering in assessing an appropriate sentence. 44 In Smith v. State, for example,
the Court of Criminal Appeals found the danger of unfair prejudice outweighed the
probative value of evidence about a defendant’s plea bargain, presented an undue
risk of confusing the issues, and had a tendency to mislead the jury in discharging
its duty to assess an appropriate sentence. 45
Swansey’s statements discussing the prospects of pleading guilty in return for
a fifty to sixty-year sentence was not information relevant to the normative factors
juries should be considering in punishment. Section 37.07 of the Code of Criminal
Procedure describes the types of evidence generally admissible during punishment.46
43
Prystash v. State, 3 S.W.3d 522, 527-28 (Tex. Crim. App. 1999); Smith v.
State, 898 S.W.2d 838, 843-44 (Tex. Crim. App. 1995).
44
Id.
45
Smith, 898 S.W.2d at 843-44.
46
Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (a)(1) (in a non-exhaustive list
identifying the matters relevant to punishment, the Legislature identifies as relevant
to the defendant’s criminal record, his general reputation, his character, opinions
about his character, the circumstances of the offense for which the defendant was
tried, evidence of any extraneous criminal or bad acts the State shows the defendant
committed beyond reasonable doubt, and any adjudications of delinquency the
defendant committed when based on felonies or on misdemeanors punishable by a
sentence in a jail). In the recordings, Swansey told family members that his attorney
had been “paid off[,]” had “set him up[,]” had failed to meet and communicate with
22
Here, information about a proposed plea as well as the statements Swansey made
discussing the sentences received by other defendants was highly prejudicial to his
right to have the jury consider the sentencing range the trial court instructed the jury
to consider. And when the jury heard Swansey describe the sentences that other
defendants in other cases received, the jury did not have the type of detailed
information that would have allowed it to determine whether those cases were
similar or dissimilar to the circumstances involved in the cases on which Swansey
was tried. The jury did not know, for example, whether the cases against those
defendants were weak or strong, did not know anything about whether any of those
defendants had criminal records, and from Swansey’s discussion about the other
cases, did not have sufficient information to determine whether the crimes
committed by others that Swansey mentioned were cases that were comparable to
Swansey’s.
In a punishment hearing, the jury is generally asked to consider a sentence in
a broadly defined range. On Swansey’s conviction for the aggravated assault of a
public servant, for example, the court instructed the jury to consider sentences of life
him about his case, and refused to return calls and respond to letters. Swansey also
commented that he did not want to be jailed with a homosexual. His comments, even
if offensive, were not evidence from which a factfinder could infer that Swansey
committed an extraneous bad act or crime.
23
or a term of not more than ninety-nine years or less than five. 47 Other instructions
about the other convictions involved smaller ranges, but all of the cases included a
lower range. In Swansey’s cases, the jury assessed maximum punishments in six of
the seven cases after hearing Swansey explain why he thought a fifty or sixty-year
sentence was too long. We can’t now know whether the jury started at the lower
range in deliberations or whether, instead, it chose to discuss a sentence at a much
higher range given Swansey’s recorded statements that explained why he was
rejecting the opportunity he had to plead guilty.
Moreover, Swansey’s statements mention that plea negotiations are not the
only statements the jury heard in the recordings that have little to no relevance on
the normative issues relevant to punishment. The recordings include Swansey’s
comments suggesting he was unhappy with his attorney and that he did not want to
be in the same cell as another person he believed to be a homosexual. Swansey’s
personal feelings about homosexuality, however, were not relevant when no
evidence in his cases revealed a sexual animus against homosexuals motivated any
of his crimes. Given the context of the evidence before the jury in Swansey’s trial,
Swansey’s statements about not wanting to be housed with a homosexual do not
reveal that he is a person of good or bad character. His personal feelings about
47
Tex. Penal Code Ann. § 12.32.
24
homosexuals as a class do not amount to a prior bad act or crime. And nothing in the
recordings show that Swansey committed a crime against a homosexual while in jail.
Likewise, Swansey’s statements expressing frustration with his lawyer had no
bearing on a character trait relevant to punishment. Whether a person likes or dislikes
lawyers as a class or the lawyer representing the person in a particular case is not
relevant to the defendant’s character in a case that did not involve any victims against
whom the defendant committed a crime based on his dislike for lawyers. To sum it
up, based on this record, Swansey’s personal feelings the jury heard him discuss
about homosexuals and his lawyer is not evidence relevant to any issues that were
relevant to his punishment
Assuming the statements the trial court should have excluded as not being
relevant have any relevance to punishment, that relevance is outweighed by the
danger of unfair prejudice. In the context of the trial, such evidence presents a very
high risk of misleading or confusing the jury. 48 We conclude the trial court erred by
failing to exclude the recorded statements to the extent they describe Swansey’s
views about homosexuals, his frustration with his attorney, and his plea bargain.
Having found error, we must decide whether the error affected Swansey’s
substantial rights. To be sure, the overwhelming evidence in the record shows that
48
Tex. R. Evid. 403.
25
Swansey engaged in extremely violent conduct even though none of the shots hit
their mark. His crimes were motivated by anger and jealousy, as he fired shots at a
group that included his former girlfriend, her new boyfriend, and the children
standing in front of John’s house. While we agree the punishment for that conduct
should be severe, the question here is whether we have fair assurance that the errors
admitting evidence did not affect his punishment.49 If we have such assurance, we
may still affirm the judgment even though there were errors admitting evidence
when viewing the record as a whole. 50
We consider a non-exhaustive list of factors to decide whether the errors
affected the result. The factors include whether erroneously admitting the statements
we have described affected the severity of the sentences, the strength of the evidence
proving Swansey’s guilt, the State’s theory of the case, the defendant’s theory of the
case, the parties’ closing arguments, and whether the State emphasized the error in
closing.51
Here, the evidence that Swansey committed all seven crimes is overwhelming.
The evidence shows the police caught Swansey red-handed. John identified Swansey
49
Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
App. 2002).
50
Motilla, 78 S.W.3d at 355.
51
Id. at 355-56.
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as the shooter as soon as he drove into the driveway. There was no evidence that
Swansey tried to conceal his identity with a disguise. The evidence established that
Swansey had several prior convictions for committing crimes, including two felonies
that he committed just two months before firing the rifle at John’s home. One of
Swansey’s prior felonies involved a conviction for assaulting Sally by impeding her
breath. The other is a felony abandonment case involving a child. Both tend to show
Swansey’s violent nature, and both are highly probative of his character since the
evidence shows he was on probation for these two felonies when he shot at John’s
home.
Turning to the mitigating evidence in the trial, Swansey argued that he was
suffering from longstanding mental problems and that he needed mental-health
treatment when the shooting occurred. But Swansey called no expert witnesses to
support that claim; instead, he relied on his mother, who testified that he suffered
from severe depression, anxiety, and bipolar disorder. He also called a friend, who
testified that Swansey had received psychiatric treatment at a facility before the
shooting occurred. Swansey also called one of his former employers, who testified
that Swansey was a good worker that he would rehire should he need to hire more
employees.
27
While we agree that harsh sentences were justified by the evidence before the
jury, we still do not have fair assurance that the jury would have given Swansey
maximum sentences in six of his seven cases had the trial court excluded the parts
of the recordings that have, at most, very little bearing on the issues relevant to his
punishment. Throughout the trial, the State’s theme was that Swansey was beyond
redemption and society needed to be protected from him. In the punishment phase,
and in opening argument, the prosecutor suggested the recorded conversations
would show why Swansey deserved a life sentence. According to the prosecutor, the
recordings would give the jury insight into Swansey’s “mindset, his views regarding
the crimes that you have found him guilty of, his attitude about the value of human
life, his – I guess his consideration of his own culpability, too, for the commission
of these crimes.” But being critical of a lawyer, disliking members of a group, and
refusing to settle a case do not justify increasing a sentence. Yet in Swansey’s trial,
some jurors might have considered the evidence the trial court excluded as relevant
to punishment given the emphasis the prosecutor placed on the recordings in his
opening argument.52 For instance, Swansey’s statements about rejecting a plea
bargain to avoid trial could have angered the jurors that felt they were forced to serve
on a jury when the dispute was over whether Swansey wanted an agreement that
52
See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a).
28
allowed him to serve a lower sentence than the one he was offered. The testimony
about the offer and the evidence about the sentences given other defendants may
have also affected the jury’s discussion of the range of sentence the trial court
instructed the jury to consider in its charge. For these reasons, the record does not
give us fair assurance that the erroneous admission of the parts of the recordings we
have described did not play some role in the severe sentences the jury assessed in
Swansey’s cases. Last, we note that the inadmissible parts of the recordings were not
cumulative of some other evidence already before the jury in some other form.
Viewing the record as a whole, we do not have fair assurance that the
erroneous admission of the complained-of recordings did not adversely affect the
sentences Swansey received in his trial.53 For that reason, we sustain Swansey’s third
issue.
Remaining Issues
In issue four, Swansey argues the trial court erred by allowing Dr. Gaines to
testify about Swansey’s mental condition and to express the opinion that he is
dangerous. In issue five, Swansey argues the trial court erred by excluding the
evidence he wanted to offer to show he expressed remorse. And in issues six through
See Chapman v. State, 150 S.W.3d 809, 818-19 (Tex. App.—Houston [14th
53
Dist.] 2004, pet. ref’d); Aleman v. State, 49 S.W.3d 92, 96 (Tex. App.—Beaumont
2001, no pet.).
29
eight, Swansey argues the trial court erred by erroneously taxing him with certain
costs of court and by ordering him to pay fines in each of his seven convictions when
the State tried him in a single proceeding. In response to issues six through eight, the
State concedes the trial court erred. The State suggests the judgment can be reformed
to correct the errors the trial court made when awarding taxable costs and fines.
Given our resolution of Swansey’s third issue, in which we granted Swansey
another hearing on punishment, we conclude the matters Swansey complains about
in issues four and five are moot. In the next punishment hearing the trial court
conducts on remand, it should reconsider whether the evidence about Swansey’s
mental condition, dangerousness, and remorse are relevant to the issues before the
jury in punishment. We cannot evaluate what the evidence in that hearing might
show. That said, we agree with the State that the trial court erred in the manner that
it calculated taxable costs and fines. We need not correct those errors, however, since
the trial court can correct its calculation on these matters after completing the new
punishment hearing we have ordered that it conduct.
Conclusion
As to the findings that Swansey is guilty of committing the crimes at issue in
his appeals, the trial court’s judgments are affirmed. As to punishment, however, the
judgments in trial court causes 25,406 through 25,412 are reversed. We remand
30
causes 25,406 through 25,412 to the trial court and order the trial court to conduct
another trial to decide issues related to Swansey’s punishment in these seven cases.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
_________________________
HOLLIS HORTON
Justice
Submitted on May 22, 2020
Opinion Delivered October 14, 2020
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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