Reynolds v. State

• Decision Date: 31 May 2007
• Docket Number: No. 06-05-00154-CR.,06-05-00154-CR.
• Citation: 227 S.W.3d 355
• Parties: Jacky Clay REYNOLDS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

227 S.W.3d 355

Jacky Clay REYNOLDS, Appellant, v. The STATE of Texas, Appellee.

No. 06-05-00154-CR.

Court of Appeals of Texas, Texarkana.

Submitted November 14, 2006.

Decided May 31, 2007.

Phil Smith, Sulphur Springs, for appellant.

Timothy Rountree, Asst. Dist. Atty., Sulphur Springs, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

Jacky Clay Reynolds was convicted of attempted indecency with one child by contact and was acquitted of a separate count of indecency with a child (F.S.) by contact.¹ Reynolds entered a plea of "[n]ot true" to the enhancement allegations contained in the indictment. After the jury made findings of "true" on two alleged enhancement paragraphs, Reynolds was sentenced to ninety-nine years' imprisonment. He appeals the conviction, alleging the following errors: (1) the jury charge on punishment failed to instruct the jury that it must find Reynolds' prior felony convictions used to enhance punishment "true" beyond a reasonable doubt; (2) a State's witness was allowed to testify as to the ultimate truthfulness of the child complainant; (3) the wrong person was allowed to testify as an outcry witness; and (4) a State's witness was improperly allowed to offer expert testimony.

Reynolds does not challenge the sufficiency of the evidence. This case involved a child Reynolds was babysitting on the night of March 24, 2004.

I. The Punishment Charge Failed to Require that Prior Felony Convictions Used to Enhance Punishment be Proved Beyond a Reasonable Doubt

Reynolds' first point of error complains that the trial court's punishment charge did not require that Reynolds' prior felony convictions, alleged by the State to enhance his range of punishment,² be proved beyond a reasonable doubt. Reynolds' other arguments are based on the failure to so instruct the jury. He argues the trial court improperly instructed both parties as to the proper burden of proof on that issue and allowed the State to describe an improper burden of proof to the jury in closing arguments.

The trial court's charge to the jury on punishment did not require that Reynolds' prior felony convictions, relied on by the State for sentence enhancement purposes, be proved beyond a reasonable doubt. The State is required to prove beyond a reasonable doubt prior convictions alleged for enhancement. See Ex parte Augusta, 639 S.W.2d 481, 485 (Tex. Crim.App.1982), overruled on other grounds by Bell v. State, 994 S.W.2d 173 (Tex.Crim.App.1999); see also Sanders v. State, 69 S.W.3d 690, 693 (Tex.App.-Texarkana 2002, pet. dism'd, untimely filed) (citing Augusta, 639 S.W.2d 481; Williams v. State, 899 S.W.2d 13, 14 (Tex.App.-San Antonio 1995, no pet.)); Martinez v. State, 969 S.W.2d 139, 140-41 (Tex.App.-Fort Worth 1998) (defendant pleading not true to enhancement allegations entitled to Geesa³ instruction), rev'd, 4 S.W.3d 758 (Tex. Crim.App.1999) (no requirement of Geesa instruction).

Reynolds affirmatively stated he had no objections to the trial court's punishment charge. It is useful, however, to reproduce the objections and comments made in closing argument. During his closing argument to the jury at the punishment phase, Reynolds' counsel referred to penitentiary ("pen") packets the State had offered to prove Reynolds' prior felony convictions. Counsel said, "You have to prove beyond a reasonable doubt —." The State then started to object, "Your Honor, I don't believe that's — that's proper. I don't think that's right. I'll withdraw my objection. . . ." Next,

[Counsel for Reynolds]: . . . You have to prove beyond a reasonable doubt that these convictions —

[The State]: Your Honor, I'm going to object to him going outside of the Jury Charge and — which is not in there, and — I mean, I'll let him argue his case. . . .

Reynolds' attorney continued to assert in his argument that the State could not prove, beyond a reasonable doubt, that Reynolds was the person previously convicted in the judgments contained in the pen packets. During the defense closing argument, the trial court asked the attorneys to the bench. The conference was not transcribed, but both parties indicate that the trial court told them the standard for proving prior convictions was by a preponderance of the evidence.⁴ The trial court erred in omitting from the punishment charge a requirement that the enhancement allegations be proved beyond a reasonable doubt.

This error occurred at punishment. The State's punishment evidence consisted of the Sulphur Springs assistant chief of police, Robert Stidham, and one of Reynolds' neighbors. Stidham compared fingerprints obtained from Reynolds after the jury's guilty verdict to fingerprints in Reynolds' pen packets. He testified that the fingerprints he took from Reynolds matched the fingerprints in the pen packets bearing Reynolds' name and identifying information. Stidham also identified Reynolds from the photographs in the pen packets. Freddy Roberts testified he had lived for years next door to the house where Reynolds and his mother had lived. Roberts said he was aware Reynolds had "gone away" for a time, but did not know personally whether Reynolds had gone to prison.⁵

Reynolds did not object to the trial court's charge until it had been read, argued, and submitted to the jury. We therefore will treat this as unobjected-to error, requiring Reynolds to prove he suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g). The jury charge included an instruction that the jury, before considering an extraneous offense, must find that such offense was true beyond a reasonable doubt.

In punishment trials, several types of evidence may be presented. If the State has alleged that the defendant has been previously convicted of felony offenses and is seeking to enhance the punishment to a higher level, it must prove those allegations beyond a reasonable doubt. Augusta, 639 S.W.2d 481; Williams, 899 S.W.2d at 14; see Flowers v. State, 220 S.W.3d 919, 920-21 (Tex.Crim. App. 2007) (indicating that, while certified copies of final judgments and sentences may be a preferred means of proving the prior conviction, it is not the only method).

Generally, enhancement allegations are proved by introducing pen packets which contain copies of the judgments of the previous convictions and fingerprints of the defendant who served the sentence in the Texas Department of Criminal Justice (TDCJ). Even when the State is not seeking to enhance punishment, it may seek to introduce evidence of the defendant's prior criminal record for the jury to consider in assessing punishment. Again, this is often done by introducing pen packets or judgments of conviction. However, in the latter case, the Texas Court of Criminal Appeals has held that, in such instances, when identity is not an issue, it is not necessary to instruct the jury that the State must prove the previous convictions beyond a reasonable doubt, as the convictions themselves necessarily evidence that the defendant was guilty beyond a reasonable doubt. Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App.2004). Judge Johnson had opined in an earlier concurring opinion that, even for enhancement purposes, the State is not required to prove the defendant guilty of each element of the prior convictions alleged; since that has already been done at previous trials. Rather, the prosecution is required to prove beyond a reasonable doubt that the defendant on trial is the same defendant named in each of the alleged felony convictions. Martinez, 4 S.W.3d at 761 (Johnson, J., concurring). The most recent pronouncement of the Texas Court of Criminal Appeals regarding enhancement allegations states that, "To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction." Flowers, 220 S.W.3d at 921-22.

Where, as here, there was no proper objection to the charge, an appellant must prove he or she has suffered egregious harm such that the appellant did not receive a fair and impartial trial. Martin v. State, 200 S.W.3d 635, 639-40 (Tex.Crim.App.2006) (citing Almanza, 686 S.W.2d at 171). In determining whether egregious harm occurred, we review the error "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record ... as a whole." Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App.1997) (quoting Almanza, 686 S.W.2d at 171). Errors resulting in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (citing Almanza, 686 S.W.2d at 171); Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App.1991); Washington v. State, 59 S.W.3d 260, 265 (Tex.App.-Texarkana 2001, pet. ref'd); Hall v. State, 937 S.W.2d 580, 583 (Tex. App.-Texarkana 1996, pet. ref'd). In some cases, the charge itself will demonstrate egregious harm. Hutch, 922 S.W.2d at 172. We will examine the issues in determining if the error was egregious.

A. The Charge Itself

The charge in question is the punishment charge wherein the jury was instructed that the defendant was charged with having been previously convicted of the offenses of burglary of a habitation and possession of a firearm by a felon. The jury was further instructed that, on a finding of true for both enhancement allegations, the appropriate punishment range was from twenty-five to ninety-nine years or life; if only one enhancement was found to be true, the range was two to twenty years and a fine not to exceed $10,000.00. Attempted indecency with a child by contact carried...