Richard Earl Curtis v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00273-CR
RICHARD EARL CURTIS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 106th District Court
Garza County, Texas
Trial Court No. 21-3584, Reed A. Filley, Presiding
August 10, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant, Richard Earl Curtis, was convicted by a jury of burglary of a habitation,1
enhanced, with an affirmative finding on use of a deadly weapon. He was sentenced to
thirty-two years’ confinement. He appeals his conviction by two issues asserting (1) the
trial court erred in admitting evidence of extraneous offenses and (2) the evidence is
legally insufficient to establish his guilt. We affirm.
1 TEX. PENAL CODE ANN. § 30.02(a), (d).
BACKGROUND
Appellant and the victim are married. On January 6, 2020, after he had been
criminally trespassed from the victim’s residence, he knocked on the bedroom window
and asked her to open the door. When she refused, Appellant broke the window with a
stick or handle and made his way inside. He then threatened her with the stick and told
her he would beat her with the stick if she called law enforcement. Eventually, Appellant
left the residence.
ISSUE ONE—EXTRANEOUS OFFENSES
We review a trial court’s evidentiary ruling for abuse of discretion. Weatherred v.
State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Madrid v. State, Nos. 07-08-00424-
CR, 07-08-00477-CR, 2009 Tex. App. LEXIS 7532, at *5 (Tex. App.—Amarillo Sept. 28,
2009, no pet.) (mem. op., not designated for publication). Under it, we cannot reverse a
trial court’s ruling that falls within the “zone of reasonable disagreement.” Green v. State,
934 S.W.2d 92, 102 (Tex. Crim. App. 1996). Nor may we reverse if the decision is correct
on any theory of law applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex.
Crim. App. 2016).
During trial, a hearing was held outside the jury’s presence to determine the
admissibility of the following extraneous offenses:
1. June 20, 2020 – violent acts occurring inside the victim’s residence;
2. March 15, 2019 – Appellant threatened to kill the victim with a knife
inside her residence; and
3. January 23, 2008 – Appellant assaulted the victim in her residence and
left a red hand imprint on her cheek.
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Appellant objected that the incidents were not relevant during guilt/innocence and violated
Rules 401, 402, 403, and 404 of the Texas Rules of Evidence as well as article 38.371 of
the Texas Code of Criminal Procedure. The trial court overruled the objection.
Here, Appellant asserts the trial court’s admission of the extraneous incidents was
substantially prejudicial. We disagree.
Extraneous-offense evidence may be admissible when it has relevance apart from
character conformity. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
Article 38.371(a) provides an avenue for admissibility of evidence regarding the nature of
the relationship between the actor and the victim to assist the trier of fact in determining
whether a defendant has committed certain family violence related offenses. Franco v.
State, No. 08-18-00040-CR, 2020 Tex. App. LEXIS 4451, at *20, 22 (Tex. App.—El Paso
June 15, 2020, no pet.) (mem. op., not designated for publication) (noting the “Legislature
has determined under article 38.371 that the nature of the relationship itself is a
permissible, non-character-conformity purpose for which evidence is admissible”). “This
article applies to a proceeding in the prosecution of a defendant for an offense, or for an
attempt or conspiracy to commit an offense, for which the alleged victim is a person whose
relationship to or association with the defendant is described by Section 71.0021(b),
71.003, or 71.005, Family Code.” TEX. CODE CRIM. PROC. ANN. art. 38.371(a). Subsection
(b) of the same article provides: “[i]n the prosecution of an offense described by
Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party
may offer testimony or other evidence of all relevant facts and circumstances that would
assist the trier of fact in determining whether the actor committed the offense described
by Subsection (a), including testimony or evidence regarding the nature of the relationship
between the actor and the alleged victim.” Art. 38.371(b).
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At trial, the State offered various grounds for admission of the aforementioned
evidence. One such ground included “that all of this goes to the nature of the relationship
between” the victim and Appellant. The State argued for admissibility under Rule
404(b)(2) because assault family violence cases are “more complicated than the one
incident.”
No one disputes the victim was Appellant’s wife. They had a history of violence.
The evidence in question would be admissible under article 38.371 to depict the nature
of their relationship. James v. State, 623 S.W.3d 533, 545–46 (Tex. App.—Fort Worth
2021, no pet.). Appellant has not shown that admission of the extraneous offenses
substantially outweighed the danger of unfair prejudice. Issue one is overruled.
ISSUE TWO—LEGAL SUFFICIENCY OF THE EVIDENCE
Appellant asserts the State’s evidence was insufficient to support his conviction.
This, Appellant contends, is so given inconsistencies between the victim’s trial testimony
and earlier pretrial statements and the lack of evidence establishing the stick was a deadly
weapon.
The only standard a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense the State is required
to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d
854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010). We consider all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences therefrom, any
rational juror could have found the essential elements of the crime beyond a reasonable
doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). As to the
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testimony of witnesses, the trier of fact is the sole judge of the weight of the evidence and
credibility of the witnesses. TEX. CODE CRIM. PROC. ANN. art. 38.04; Dobbs v. State, 434
S.W.3d 166, 170 (Tex. Crim. App. 2014). We cannot re-evaluate the weight and credibility
determinations made by the factfinder, Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.
App. 1999), and we resolve any inconsistencies in the evidence in favor of the verdict.
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
To prove an aggravated assault was committed during the course of the burglary,
the State was required to show Appellant assaulted the victim by threatening her with
imminent bodily injury. TEX. PENAL CODE ANN. §§ 21.01(a)(2), 22.02(a)(2). Appellant
argues there is no evidence of a threat of imminent bodily injury to the victim.
The victim reluctantly testified and at times, contradicted her sworn statement. Yet,
the jury was presented with the victim’s sworn statement showing that while Appellant
held the stick, he threatened to beat her to death with it if she called police. Although the
stick was not recovered, the jury heard testimony from the victim how the stick was used
to break the bedroom window. Despite inconsistencies between the victim’s trial
testimony and earlier pretrial statements which raised credibility issues, the jury, as
factfinder, was free to believe or disbelieve any portion of the testimony and, as evinced
by the verdict, chose to believe the victim’s pretrial version.
Appellant also argues there is no evidence the “stick” was a deadly weapon. The
Court of Criminal Appeals has stated that “objects used to threaten deadly force are
deadly weapons.” McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Objects
that are not usually considered dangerous weapons may become so, depending on the
manner in which they are used during the commission of an offense. Drichas v. State,
175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The State is not required to prove an item
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can actually cause death or serious bodily injury to justify a deadly-weapon finding.
Daniels v. State, No. 07-21-00156-CR, 2022 Tex. App. LEXIS 3284, at *16 (Tex. App.—
Amarillo May 13, 2022, pet. ref’d). The State need only show that the manner in which
the item was used or intended to be used was “capable” of causing death or serious bodily
injury. See id. at *17. See also TEX. PENAL CODE ANN. § 1.07(a)(17)(B). Additionally, the
State is not required to prove the victim was injured to support a deadly-weapon finding.
King v. State, No. 07-21-00164-CR, 2023 Tex. App. LEXIS 73, at *6 (Tex. App.—Amarillo
Jan. 9, 2023, no pet.) (mem. op., not designated for publication) (citing Johnson v. State,
509 S.W.3d 320, 323 (Tex. Crim. App. 2017)).
According to the victim’s sworn statement, Appellant used a stick to break a
bedroom window and threatened to “beat [her] to death” if she called police. She testified
one of the officers said it was a “big” stick. We find there was sufficient evidence to
support Appellant’s conviction and the deadly-weapon finding. Issue two is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Alex Yarbrough
Justice
Do not publish.
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