Kapperman v. State
| Decision Date | 01 September 2022 |
| Docket Number | 01-20-00127-CR |
| Parties | KURT KAPPERMAN, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
KURT KAPPERMAN, Appellant
v.
THE STATE OF TEXAS, Appellee
No. 01-20-00127-CR
Court of Appeals of Texas, First District
September 1, 2022
Do Not Publish. Tex.R.App.P. 47.2(b).
On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1602677
Panel consists of Justices Landau, Hightower, and Rivas-Molloy.
MEMORANDUM OPINION
Rivas-Molloy Justice
A jury convicted Appellant Kurt Kapperman of the second-degree felony offense of online solicitation of a minor and, after finding the enhancement paragraph in the indictment to be true, assessed his punishment at sixty years'
imprisonment. On appeal, Appellant argues (1) there is insufficient evidence to support his conviction because he was not identified in court, (2) the trial court erred by excluding him from the courtroom for the entirety of his trial, (3) the trial court abused its discretion by failing to conduct an informal inquiry into his competency, (4) the trial court erred by denying his challenges for cause and his request for additional peremptory challenges, (5) Texas Government Code Section 74.056(a) is unconstitutional as applied in his case, (6) the trial court erred by failing to sentence him in open court, and (7) the trial court assessed the wrong consolidated court cost and total amount.
We affirm the judgment of conviction, but reverse and remand the cause for a new trial on punishment. See Tex. Code Crim. Proc. art. 44.29(b).
Background
Appellant Kurt Kapperman ("Kapperman") was arrested and charged with online solicitation of a minor following a joint sting operation conducted by the Houston Police Department ("HPD") and other law enforcement agencies. The case was tried to a jury over six days in January 2020.[1] As discussed in greater detail below, Kapperman was alleged to have contacted Detective W. Reiser ("Detective Reiser"), an undercover HPD officer, first using the social media platform
MocoSpace and later through text messages, ultimately soliciting sex. Kapperman believed Detective Reiser was a 15-year-old girl and he requested to meet with her for oral sex and sexual intercourse. Detective Riser identified a location where the two could meet. When Kapperman arrived at the location, HPD arrested him.
A. Voir Dire and Pretrial Proceedings: January 21 - 23, 2020
On the first day of Kapperman's trial, Tuesday, January 21, 2020, the trial judge welcomed the venire panel and introduced them to Kapperman, his defense counsel, and the assistant district attorneys representing the State. The trial judge excused the panel less than a half hour later after Kapperman "fell out of his chair, seemed to lose consciousness, and then began shaking." Two emergency responders who were on the venire panel checked on Kapperman and determined he was breathing and did not need CPR. After memorializing the morning's events on the record, the trial court dismissed the venire panel and sent Kapperman to the hospital where he was examined and discharged later that day.
The next morning, on Wednesday, January 22, 2020, Kapperman returned to court for a pretrial conference. During the conference, the trial judge informed Kapperman that he was charged with online solicitation of a minor, a second-degree felony punishable by two to twenty years' incarceration and a fine of up to $10,000.[2]
The punishment range in Kapperman's case, however, was enhanced to five to ninety-nine years or life in imprisonment and a fine of up to $10,000 because he had a prior, juvenile adjudication for aggravated sexual assault of a child.[3] The trial judge, the State, and the defense also discussed the evidence the State intended to present to the jury, other cases pending against Kapperman, and whether there was a plea offer on the table. At the end of the conference, the trial judge asked Kapperman if he wanted to consult with his attorney, and Kapperman replied that he did.
While awaiting an afternoon jury panel after the pretrial conference, Kapperman told the bailiff he was dizzy and might pass out. After talking with the
jail physician, an ambulance was summoned to take Kapperman to the hospital for a second day in a row. A docket notation states that Kapperman "was lying on the jail floor and shivering [when the ambulance arrived], much like yesterday when he fell out of his chair during voir dire."
Kapperman appeared in court again the next morning, Thursday, January 23, 2020. When the trial judge asked about his well-being, Kapperman informed the judge that he had been examined at the hospital the night before and "they said everything looked good." He also stated that medical personnel had referred him to a cardiologist based on his self-reported history of respiratory infections and seizures. Kapperman told the judge he had gotten very little sleep the night before because he had not returned to his jail cell until 4 a.m.
The trial judge told Kapperman that she was beginning to suspect he was exaggerating his health problems to avoid trial and she warned him against such antics. She told Kapperman that his case would proceed to trial regardless and that she would bring a nurse to sit with him through trial if he wanted. Kapperman responded that he did not need a nurse to sit with him and he denied he was exaggerating his medical condition. He then told the trial court that he did not "feel like really we're all the way ready for trial" and he lacked confidence in his attorney. The trial judge assured Kapperman that it was "a pretty simple" case and she was
confident that his appointed counsel would "do a good job." When asked if he had done everything he needed to do for trial, Kapperman's counsel responded:
My only concern, based on what I'm hearing this morning, is if he, in fact, is working with no sleep since 4:00 or 5:00 a.m. from the previous day. That concerns me from the standpoint I've got to rely on Mr. Kapperman to be attentive to help me. That's my concern with proceeding today.
The trial court acknowledged defense counsel's concerns and told the parties they would select a jury that morning and then return Kapperman to jail by noon to allow him to get a good night's rest before hearing testimony the next day.
Voir dire began after a brief recess. The court began by welcoming the new venire panel and asking Kapperman to stand as she introduced him to the panel, stating, "The man on trial is Mr. Kapperman, K-a-p-p-e-r-m-a-n. His name is Kurt." Voir dire proceedings remained largely unremarkable until the trial judge examined the individual venire members challenged for cause.
After questioning Juror No. 18, the trial court dismissed her for cause. Juror No. 18 stated she could not be fair to Kapperman because her husband had been a victim of sexual abuse as a child, and she had been working her church's coalition against sex trafficking for several years. As she was exiting the courtroom, Kapperman told Juror No. 18, "God bless you" purportedly loud enough for the other venire members to hear. After sending the venire panel out, the judge told Kapperman she was concerned he was attempting to influence potential jurors and
she admonished him against communicating with the venire members in any way, including waving, nodding, or winking at them.
The jury panel was brought back in and individual juror questioning resumed. The trial court granted Kapperman's challenges to the next two jurors and dismissed them. Defense counsel then challenged Juror No. 32 based on the argument she would hold Kapperman's decision not to testify against him. The trial court asked Juror No. 32 if she could follow the court's instructions not to consider Kapperman's decision not to testify for any purpose. The juror responded "Yes, ma'am," and the trial court denied Kapperman's challenge. At that point, Kapperman exclaimed, "This is just unconstitutional, man. This is a setup, man. It's just unconstitutional. It's a f***ing setup." After escorting Kapperman from the courtroom, the trial judge stated on the record (and outside the presence of the jurors):
For the record, the defendant has just been screaming. He threw his chair down. And so he has made a big scene in front of the jurors and the bailiffs had to kind of push him toward the back. Let's get some extra bailiffs down here. And we'll send the jury out to the hall when they get here and I will talk to him. I don't know what's going to happen. Just call some people and get them down here.
Kapperman returned to the courtroom in handcuffs with the venire panel present. The trial judge then sent the venire panel to another courtroom to wait until the court was ready to proceed with voir dire. When the judge tried to talk to Kapperman about his outburst, Kapperman complained that his handcuffs were too tight and he made derogatory remarks towards the bailiff. The trial judge told
Kapperman several times she needed to talk to him, but Kapperman kept insisting the handcuffs were too tight as he directed expletives towards the bailiffs including calling one a "f***ing uncle tom" and "f***ing bit***-*ss cop." At the court's instruction, the bailiffs checked Kapperman's handcuffs and a sergeant from the Sheriff's office confirmed that the bailiffs were following proper procedure. The bailiffs stated there was a finger's width between the defendant's wrists and the handcuffs. When the judge announced that the "handcuffs [were] properly placed," Kapperman then exclaimed, "This is why the police get away with things like this, man." Kapperman then complained about the treatment he received when he was first arrested, including the fact he was tased, which prompted the trial judge to announce, "All right. If he won't quit talking, we're going to gag him. Let me explain this to you, sir. The law requires that you hear the proceedings against you. It's in the constitution." At that...
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