Davis v. State

• Decision Date: 31 August 2016
• Docket Number: No. 04-15-00602-CR,04-15-00602-CR
• Parties: Roger DAVIS, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Roger DAVIS, Appellant v. The STATE of Texas, Appellee

No. 04-15-00602-CR

Fourth Court of Appeals San Antonio, Texas

August 31, 2016

MEMORANDUM OPINION

From the 187th Judicial District Court, Bexar County, Texas

Trial Court No. 2015CR4694

Honorable Steve Hilbig, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice

AFFIRMED

A jury found appellant Roger Davis guilty of felony assault—family violence, and the trial court sentenced Davis to thirty years' confinement. In six issues, Davis challenges his conviction. We affirm the trial court's judgment.

BACKGROUND

Davis's conviction arose out of an incident that occurred after his girlfriend, complainant Tiy Cain, drove herself and others to a family gathering. When Cain reached the location of the event, everyone except Cain went inside the apartment where the gathering was located. Cain remained outside. Sometime later, Cain's seven-year-old daughter alerted the family to an altercation involving her mother. The family went outside and found Cain visibly injured and upset; they immediately called police. Cain told responding officers Davis attacked her. She also identified Davis as her attacker in her written account of the event, which was given later that day. However, she later recanted her allegations, claiming another man — Ricky Armstrong — assaulted her, not Davis. Cain's sister testified she did not see Armstrong on the day of the assault; rather, she testified she saw Davis leaving in a vehicle immediately after the assault.

The State subsequently indicted Davis for assault—family violence pursuant to section 22.01(b)(2)(A) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2015). The offense charged was a felony based on the allegation that Davis had previously been convicted of assault—family violence. See id. After a trial, the jury returned a guilty verdict. The trial court sentenced Davis to thirty years' confinement and assessed a $1,000.00 fine. This appeal followed.

ANALYSIS

As noted above, Davis raises six issues on appeal. He contends: (1) the trial court erred in refusing his offer to stipulate to a jurisdictional offense; (2) the trial court failed to properly charge the jury with respect to the jurisdictional offense; (3) the trial court improperly denied his motion for mistrial based on the admission of certain witness testimony; (4) the trial court erred in overruling his objection to certain information contained in a State's exhibit; (5) the evidence is legally insufficient to prove the prior offense; and (6) his trial counsel was ineffective.¹

Stipulation to Jurisdictional Offense

Davis had previously been convicted of assault—family violence. The State alleged the prior conviction to enhance the current offense to a felony. Before voir dire, Davis claims he offered to stipulate to the prior conviction. See id. § 22.01(b)(2)(A); Reyes v. State, 314 S.W.3d 74, 81 (Tex. App.—San Antonio 2010, no pet.) (holding that proof of prior conviction is element of offense of felony assault—family violence and must be proved by State). Davis contends the trial court refused his offer to stipulate.

We disagree with Davis's claim that the trial court refused an offer to stipulate; rather, the court advised Davis the stipulation had to be in writing. No written stipulation was presented, nor did Davis object to the trial court's requirement of a written stipulation. Thus, at trial, the State presented evidence to meet its burden to prove the jurisdictional conviction.

On appeal, Davis argues the trial court's refusal of his offer to stipulate was error, resulting in the improper admission of the prior conviction in violation of Rules 403 and 404(b) of the Texas Rules of Evidence. See TEX. R. EVID. 403, 404(b). In response, the State contends Davis has failed to preserve this complaint for appellate review. Although we do not agree the complaint was waived, we hold the trial court did not err because Davis never stipulated to the prior offense in such a way as to relieve the State of its burden to prove the prior offense.

To convict Davis, the State had to prove beyond a reasonable doubt that Davis: (1) intentionally, knowingly, or recklessly, (2) caused bodily harm to Cain, with whom he had a dating relationship, and (3) had previously been convicted of assault—family violence. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). Thus, the State had to prove Davis had previously been convicted of assault—family violence. One of the ways the State can satisfy its burden is by way of a stipulation from the defendant, admitting the prior conviction. See Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007); Prihoda v. State, 352 S.W.3d 796, 807 (Tex. App.—San Antonio2011, pet. ref'd). The purpose of such a stipulation is to relieve the State of its burden with regard to this element, thereby protecting the defendant from possible prejudice associated with the State's production of evidence regarding the prior offense. See Martin v. State, 200 S.W.3d 635, 640-41 (Tex. Crim. App. 2006). In other words, if a defendant stipulates to a prior, jurisdictional conviction, he has in essence made a judicial admission, thereby removing the State's burden to prove that element of the offense. Id.

Contrary to the trial court's statement in this case, a stipulation need not be in writing. See Bryant v. State, 187 S.W.3d 397, 405 n.3 (Tex. Crim. App. 2005) (Cochran, J., concurring). However, although a stipulation does not have to be in writing, see id., and an offer to stipulate cannot be refused by the trial court, see Hernandez v. State, 109 S.W.3d 491, 495 (Tex. Crim. App. 2003), we hold the stipulation must be sufficiently specific to supply the information the State would be required to prove with regard to the prior offense. See Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. App. 2002); see also Bryant, 187 S.W.3d at 405 (Cochran, J., concurring) (stating that stipulation substitutes for evidence and is sufficient proof of facts stipulated to as long as stipulation is in official record and trial and reviewing courts may compare stipulation contents to indictment allegations). In Tamez, the court specifically held that a stipulation "to a previous conviction should suffice when it carries the same evidentiary value as the judgments of prior convictions." 11 S.W.3d at 202.

In this case, the only mention of stipulation occurred just before voir dire:

[Defense]: Well, Judge, just I'm concerned about prior criminal history and other issues. I just wanted to raise - -

The Court: Okay. Well, who are they going to? They're going to the Court. So there shouldn't be punishment issues at all.

[Defense]: There should not be . . . .

The Court: Correct. I assume this could be similar to the DWI. Does anybody - - are you going to stipulate to the priors or do you want them to put on evidence of it? I mean, has anybody approached that issue or not . . .

[Prosecution]: Your Honor. I don't have a written stipulation - -

The Court: No, I'm - - I mean, I'm not suggesting that ya'll do it. He was talking about priors and we all admit that there's going to have to be - - priors established as a predicate. And I don't know if any Court's ruled on it, but it seems like you could treat it as we do the DWIs.

[Defense]: And, Judge, I think there's actually two prior assaults - -

[Prosecution]: We've only alleged one.

[Defense]: So we'll stipulate to one and just want to make sure it's part of the limine, that they only - -

The Court: It needs to be a written stipulation, with everybody signed, so, if it's not prepared, I'm going to let them get into it on voir dire, I'm going to at least let them get into the idea that they have to prove up one prior - -

[Defense]: And, Judge, I understand that. Obviously if the Court would limit it to one, just to invoke the jurisdiction on the Court.

As previously noted, the trial court did not refuse a proffered stipulation. A fair reading of the exchange indicates the trial court was requesting more information with regard to the proposed stipulation than counsel's vague assertion that Davis would "stipulate to one." With regard to the charged offense, Davis's alleged stipulation was not sufficient to relieve the State of its burden to prove the existence of a prior assault—family violence offense; rather, the State was mandated to prove the existence of a specific prior offense, i.e., assault—family violence. Based on counsel's vague statement, we cannot discern the type of prior offense he was alluding to. As the exchange shows, Davis's counsel admitted the existence of two prior offenses. In Hollen v. State, 117 S.W.3d 798, 801-02 (Tex. Crim. App. 2003), the court held a jury should be informed of the stipulation in order to enable it to reach a verdict on the charged offense. Here, nothing was produced by Davis — orally or in writing — that would constitute a stipulation from which thejury could have been informed that Davis had previously been convicted of the specific offense of assault—family violence; conviction of some other prior offense would not be sufficient.

We refer to the decision in Zavala v. State, No. 03-05-00051-CR, 2007 WL 135979, at *1-*2 (Tex. App.—Austin Jan. 22, 2007, no pet.) (mem. op., not designated for publication). In that case, the appellant claimed that although he did not make a formal stipulation, "a fair reading of the discussions between all counsel and the trial court . . . clearly indicates the defense counsel was making a Tamez objection." Id. at *1. However, the appellant's trial counsel had merely asked the trial court to include the prior conviction in the enhancement paragraph at the punishment phase of the trial. Noting that Tamez requires a defendant to stipulate to the relevant prior conviction such that proof of the prior conviction was wholly dispensed with, the court held the appellant never...