Clifton v. State

• Docket Number: 01-22-00641-CR
• Decision Date: 24 August 2023
• Parties: ANTHONY TERRELL CLIFTON, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

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ANTHONY TERRELL CLIFTON, Appellant v. THE STATE OF TEXAS, Appellee

No. 01-22-00641-CR

Court of Appeals of Texas, First District

August 24, 2023

Do Not Publish. TEX. R. APP. P. 47.2(b).

On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1633925

Panel consists of Justices Goodman, Landau, and Rivas-Molloy.

MEMORANDUM OPINION

VERONICA RIVAS-MOLLOY, JUSTICE

A jury convicted Appellant Anthony Terrell Clifton of the offense of aggravated assault of a family member and the trial court assessed his punishment at fourteen-years' incarceration. Appellant raises nine issues on appeal. He argues (1) the trial court lacked jurisdiction because the grand jury did not present the indictment to the district court that empaneled the grand jury, (2) Sections 54A.006(d) and 54A.008(a)(15) of the Texas Government Code allowing associate judges to preside over voir dire proceedings, violate Article V, Section 7 of the Texas Constitution, (3-4) the trial court abused its discretion by barring him from asserting his rights under the Sixth Amendment's Confrontation Clause based on the doctrine of forfeiture by wrongdoing and by admitting out-of-court statements from a witness who was not available to be cross-examined, (5) the trial court's oral admonishments regarding his inability to possess firearms based on a felony conviction did not comply with the requirements of Section 176.1 of the Texas Administrative Code, (6) the trial court improperly admonished him that, as a convicted felon, he could no longer possess ammunition, (7) the trial court erred in assessing court costs not authorized by statute, (8) the trial court erred by failing to inquire on the record about his ability to pay fines and court costs and (9) the judgment contains five "deficiencies" that require the case be remanded to the trial court for "clarification."

We affirm Appellant's conviction and sentence, but we remand the case to the trial court for a correct assessment of court costs.

Background

On June 3, 2019, Jerika Sanders ("Sanders") called 9-1-1 for emergency assistance after she was involved in an altercation with her boyfriend, Appellant Anthony Terrell Clifton ("Clifton"). Sanders told the dispatcher "My boyfriend tortured me and locked me in the house and beat me up. I am bleeding. I need an ambulance." "He used a pole to beat me and a glass to stab me." Sanders identified Clifton as her assailant. The paramedics who arrived at the scene treated Sanders and transported her to the hospital.

Sanders described the assault to the paramedics, and she made recorded statements to Deputy Norman Fitts, an investigator with the Harris County Sheriff's Office, and prosecutors with the Harris County District Attorney's Office assigned to Clifton's case. According to Sanders, Clifton assaulted her in their apartment for two-and-a-half to three hours before she was able to call 9-1-1. Clifton slapped Sanders, punched her in the face, and beat her with a belt. At one point during the lengthy ordeal, Clifton grabbed a wine glass out of Sanders' hand, and he struck her face and head with the glass until it broke. Clifton then stabbed Sanders' face and hand with the broken wine glass. He also beat Sanders with a bathroom towel rack and a pole he found in the apartment.

Photographs taken of Sanders after the assault show the extent of Sanders' injuries. Sanders had dried blood on her face, forehead, and arms, puncture wounds on her head, hands, arms, and legs, and welts on her shoulders and legs. Her left eye was swollen shut and her lips were swollen. The cuts under Sanders' left eye, upper lip, and forehead required sutures.^[1]

Procedural Background

The State filed a complaint alleging Clifton had committed the offense of aggravated assault of a family member by "unlawfully, intentionally and knowingly caus[ing] bodily injury to Jerika Sanders, hereafter styled the Complainant, a person with whom [Clifton] had a dating relationship, by stabbing [Sanders], and [Clifton] used and exhibited a deadly weapon, namely, the sharp end of broken wine glass stem, during the commission of the offense." The State filed the complaint in the 178th District Court of Harris County (the "178th Trial Court"). A grand jury, empaneled by the 176th District Court of Harris County, returned a true bill of indictment concerning the conduct alleged in the complaint (the "176th District Court"). The indictment, which charged Clifton with committing the offense of aggravated assault of a family member, was delivered to the Harris County District Clerk and filed in the 178th Trial Court. The indictment was issued by "[t]he duly organized Grand Jury of Harris County, Texas" and signed by the "Foreman of the Grand Jury" for the 176th District Court. Clifton did not object to the indictment.

Except for the grand jury proceedings in the 176th District Court, all proceedings in Clifton's case were conducted in the 178th Trial Court. The associate judge of the 178th Trial Court presided over voir dire proceedings and the district court judge of the 178th Trial Court presided over the remainder of Clifton's trial.

On August 25, 2022, the day Clifton's trial was scheduled to begin, the State filed a motion requesting that the court find Clifton had "forfeited his Sixth Amendment right to confrontation with regard to the statements of Jerika Sanders," based on the doctrine of forfeiture by wrongdoing.^[2] The State alleged that Clifton "dissuaded [Sanders] from participating in the criminal prosecution of this case." The State argued, among other things:

[Clifton] repeatedly directed family members to contact [Sanders] from jail after he was arrested in 2019 and has continued to direct family members to contact [Sanders] to ensure she does not show up for trial as recently as the evening of 8/24/2022.

Throughout three years since [Clifton] stabbed [Sanders], despite a no contact order, he has continued to contact [Sanders] for the purpose of ensuring she does not show up to trial.

While on bond, [Clifton] contacted [Sanders] and attempted to persuade her to get back into a relationship with him.

[Clifton] told his mother [Viola Clifton] to contact [Sanders] and make sure she is not coming to court, because if she does not come, he believes the case will be dismissed.

On August 18, 2022 [Sanders] was subpoenaed to come to court, acknowledged the subpoena, and was cooperative.

On August 19, 2022 [Sanders] was cooperative and discussing travel arrangements with the victim advocate coordinator.

On August 20, 2022 Prosecutors met with [Sanders] over a zoom call, [Sanders] was cooperative, discussed courtroom attire, reviewed photos, and shared what happened to her on June 3, 2019.

On August 21, 2022 after repeatedly telling his mother to call [Sanders] to make sure she was not coming to court, [Clifton's] mother reported that she told [Sanders] she did not have to come, and bribed [Sanders] with 2,000 dollars of baby clothes.

As of August 22, 2022 [Sanders] did not respond to the State again.

August 24, 2022 [Clifton's] mother affirms that [Sanders] received the 2,000 dollars of baby clothes, and that [Sanders] is not coming to trial.

[Sanders] said she fears [Clifton's] family. [Sanders] knows of the court setting, but she refuses to testify.

The State requested a hearing on its motion and asked the court to "admit through the doctrine of forfeiture by wrongdoing" (1) Sanders' "statement to detectives at the hospital," (2) Sanders' "statement in a witness meeting on 8/20/22," and (3) "Jail calls made" by Clifton.

The trial court conducted an Article 38.49 hearing outside the jury's presence to determine whether the forfeiture by wrongdoing doctrine applied to Sanders' out- of-court statements rendering them admissible.^[3] At the hearing, the State offered as evidence recordings of several phone calls Clifton made from jail, as well as a transcript of relevant sections of the calls. The State also called four witnesses: Sergeant Mark Schmidt, Investigator Bilsen Espinosa, Deputy Norman Fitts, and Caseworker Maria Bahena.^[4]

Based on Clifton's phone calls and evidence that Sanders had been cooperative with the State until Clifton's mother bribed her with $2,000 worth of baby clothes to not testify at Clifton's trial, the trial court found by a preponderance of the evidence that Clifton acted with the intent to procure Sanders' absence at trial, and he thus forfeited his Sixth Amendment right to confront Sanders or object to the admission of Sanders' out-of-court statements as hearsay.

Clifton's trial began the next day. Clifton pleaded not guilty. When Sanders failed to appear for trial, the State admitted several of her out-of-court statements, including a report prepared by the Community Volunteer Fire Department containing statements Sanders gave to a paramedic describing the assault (State Exhibit 55), and Sanders' hospital records containing statements she made describing the assault and identifying Clifton as her assailant (State Exhibit 56).^[5]

The jury convicted Clifton of the offense of aggravated assault of a family member. The trial court assessed his punishment at fourteen-years' incarceration. This appeal followed.

Trial Court's Jurisdiction

In his first issue, Clifton argues that the judgment of conviction is void because the 178th Trial Court never acquired jurisdiction over his case. According to Clifton, Article 21.02(2) of the Texas Code of Criminal Procedure requires a grand jury to present its indictment to the same district court that empaneled the grand jury. See Tex. Code Crim. Proc. art. 21.02(2). Clifton argues that the grand jury failed to comply with Article 21.02(2) because, instead of presenting the...