Samuel Alan Tucker v. State ( 2018 )


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  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-16-00384-CR
    SAMUEL ALAN TUCKER,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 12th District Court
    Walker County, Texas
    Trial Court No. 27,546
    MEMORANDUM OPINION
    Appellant Samuel Alan Tucker was convicted by a jury of the offense of evading
    arrest or detention with a vehicle. The jury also found that Tucker used a deadly weapon
    (his vehicle) during the commission of the offense. The jury assessed a sentence of fifteen
    years. Tucker’s sentence was enhanced by a prior felony conviction.
    Tucker presents two issues on appeal: (1) the trial court erred in admitting an
    extraneous conviction (a misdemeanor DWI); and (2) the trial court failed to properly
    charge the jury on the deadly weapon special issue. We will affirm.
    Background
    The underlying facts are not disputed. The events leading to Tucker’s conviction
    began when Tucker failed to stop after rear-ending another vehicle at a traffic light. The
    driver of the other vehicle suffered serious injuries and was taken to the hospital. A
    description of Tucker’s vehicle was broadcast to law enforcement. Independent of that
    broadcast, Tucker was spotted driving erratically by an off-duty Texas Ranger, Steven
    Jeter, who attempted to detain Tucker when Tucker stopped at a red light. Jeter was in
    his off-duty vehicle and was not in uniform, and Tucker did not stop. Jeter called 911 to
    report Tucker and continued to follow Tucker while reporting their location.
    Deputy Joe Jeffcoat was first dispatched to the wreck, but then responded to the
    locations being provided by Jeter. Jeffcoat and Sergeant Eddie Lawson, in marked
    vehicles, caught up to Tucker and attempted to get Tucker to stop, using their lights and
    sirens. Jeffcoat, who was in the unit directly behind Tucker, also used his public address
    system to direct Tucker to pull over. This only resulted in Tucker increasing his speed.
    Tucker did not stop until he arrived at his residence, and the deputies then took him into
    custody. When Tucker’s vehicle was searched, officers found an empty beer can and four
    prescription pill bottles in Tucker’s name. Two of the prescriptions were for Oxycontin
    and hydrocodone. At sentencing, the jury was informed that Tucker had a blood alcohol
    concentration of 0.127 grams of alcohol per 100 milliliters of blood.
    Tucker did not appear after the first day of trial, and the trial was continued in his
    absence. Tucker’s attorney presented no witnesses or exhibits, although he subjected the
    State’s witnesses to cross-examination and otherwise challenged the State’s case.
    Tucker v. State                                                                         Page 2
    Analysis
    A. Extraneous Offense. During the punishment phase, the State offered evidence
    that Tucker had previously been convicted of a misdemeanor DWI. Tucker objected,
    asserting that he had been given notice that the conviction would be used against him
    only the evening before, which was a violation of the trial court’s standing discovery
    order.
    We review a trial court’s admission of evidence for an abuse of discretion. Gonzalez
    v. State, 
    544 S.W.3d 363
    , 370 (Tex. Crim. App. 2018). As long as the trial court’s ruling
    falls within the zone of reasonable disagreement, we will affirm that decision. Moses v.
    State, 
    105 S.W.3d 622
    , 627 (Tex. Crim. App. 2003). We will uphold a trial court’s ruling if
    it is reasonably supported by the record and correct under any theory of law applicable
    to the case. Willover v. State, 
    70 S.W.3d 841
    , 845 (Tex. Crim. App. 2002).
    Upon timely request of a defendant, the State is required to provide notice that it
    intends to introduce evidence at punishment of the defendant’s other crimes, wrongs, or
    bad acts during its case-in-chief. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1), (g)
    (West Supp. 2018). The notice is to be given in the manner required by Rule 404(b) of the
    Texas Rules of Evidence. 
    Id., § 3(g).
    Here, the State notified Tucker months before trial
    began, in compliance with the trial court’s standing discovery order, of Tucker’s arrest
    for the misdemeanor DWI as part of Tucker’s criminal history. The State did not,
    however, amend its notice after Tucker’s DWI conviction became final until the day
    before the evidence was offered at trial. The prosecutor informed the trial court that the
    information had only recently been discovered. Given those circumstances, it was not
    Tucker v. State                                                                        Page 3
    beyond the zone of reasonable disagreement for the trial court to hold that the
    misdemeanor conviction was admissible. See Ferrer v. State, 
    548 S.W.3d 115
    , 119-20 (Tex.
    App.—Houston [14th Dist.] 2018, pet. ref’d).
    Even assuming that the trial court erred in admitting the extraneous offense, we
    conclude any error was harmless. Error in the admission of evidence is nonconstitutional
    error. 
    Gonzalez, 544 S.W.3d at 373
    ; see also Luna v. State, 
    301 S.W.3d 322
    , 326 (Tex. App.—
    Waco 2009, no pet.). Nonconstitutional errors require reversal only if they affect an
    appellant’s substantial rights. 
    Gonzalez, 544 S.W.3d at 373
    ; TEX. R. APP. PROC. 44.2(b). The
    Court of Criminal Appeals has construed this to mean “that an error is reversible only
    when it has a substantial and injurious effect or influence in determining the jury’s
    verdict.” Taylor v. State, 
    268 S.W.3d 571
    , 592 (Tex. Crim. App. 2008). In assessing a
    nonconstitutional error, we examine whether the purpose of the statute or rule violated
    was thwarted by the error. Roethel v. State, 
    80 S.W.3d 276
    , 281 (Tex. App.—Austin 2002,
    no pet.) (citing Ford v. State, 
    73 S.W.3d 923
    , 925-26 (Tex. Crim. App. 2002)). The purpose
    of § 3(g) is to avoid unfair surprise and to enable a defendant to prepare to answer the
    extraneous offense evidence. Apolinar v. State, 
    106 S.W.3d 407
    , 414-15 (Tex. App.—
    Houston [1st Dist.] 2003), aff’d on other grounds, 
    155 S.W.3d 184
    (Tex. Crim. App. 2005);
    
    Roethel, 80 S.W.3d at 282
    . This analysis requires the reviewing court to examine the record
    to determine whether the deficient notice resulted from prosecutorial bad faith or
    prevented the defendant from preparing for trial. 
    Roethel, 80 S.W.3d at 282
    . Tucker does
    not argue that the prosecutor acted in bad faith. Tucker objects only to the lack of notice,
    Tucker v. State                                                                       Page 4
    not to the admissibility of the misdemeanor conviction itself. See McDonald v. State, 
    179 S.W.3d 571
    , 578 (Tex. Crim. App. 2005).
    In determining whether the late notice prevented the defendant from preparing
    for trial, the court reviews whether the defendant was surprised by the substance of the
    notice and whether that affected his ability to prepare cross-examination or mitigating
    evidence. 
    Roethel, 80 S.W.3d at 282
    . “Accordingly, we look only at the harm that may
    have been caused by the lack of notice and the effect the lack of notice had on the
    appellant’s ability to mount an adequate defense.” 
    McDonald, 179 S.W.3d at 578
    (citation
    omitted). Tucker does not allege that the lack of notice prevented him from presenting a
    defensive strategy, mounting a defense, or introducing mitigating evidence.            If the
    misdemeanor DWI conviction was a legitimate surprise that required a re-evaluation of
    Tucker’s strategy at the punishment phase, he could have requested a continuance or a
    postponement. His failure to do so precludes us from holding that, even if there was
    error in the admission of the misdemeanor DWI conviction, the error was harmful. See
    Lindley v. State, 
    635 S.W.2d 541
    , 544 (Tex. Crim. App. [Panel Op.] 1982) (“The failure to
    request a postponement or seek a continuance waives any error urged in an appeal on
    the basis of surprise.”); see also 
    McDonald, 179 S.W.3d at 578
    (“[Had] there been legitimate
    surprise that required a re-evaluation of trial strategy, the appellant could have requested
    a continuance.”). For these reasons, Tucker’s first issue is overruled.
    B. Charge Error. Tucker next asserts that the trial court erred in failing to instruct
    the jury that the State had the burden to prove beyond a reasonable doubt that Tucker
    used a deadly weapon. A claim of jury-charge error is reviewed using the procedure set
    Tucker v. State                                                                         Page 5
    out in Almanza. Barrios v. State, 
    283 S.W.3d 348
    , 350 (Tex. Crim. App. 2009); Almanza v.
    State, 
    686 S.W.2d 157
    , 171 (Tex. Crim. App. 1985) (op. on reh’g). The first step is to
    determine whether there is error in the charge. Ngo v. State, 
    175 S.W.3d 738
    , 743 (Tex.
    Crim. App. 2005). As the State concedes error, we proceed to determine whether a harm
    analysis is appropriate. See Middleton v. State, 
    125 S.W.3d 450
    , 453 (Tex. Crim. App. 2003).
    A charge that excludes an instruction on reasonable doubt, or that misdefines the
    State’s burden of proof as being less than beyond a reasonable doubt, constitutes
    structural error that is not subject to harmless-error review. See Olivas v. State, 
    202 S.W.3d 137
    , 142-43 (Tex. Crim. App. 2006); see also State v. Toney, 
    979 S.W.2d 642
    , 644-45 (Tex.
    Crim. App. 1998) (“If there is a total omission of the instruction on reasonable doubt, such
    error defies meaningful analysis by harmless-error standards.”). When, however, a jury
    is given a partial or substantially correct charge on reasonable doubt, then the error is
    subject to a harmless-error analysis under Almanza. 
    Olivas, 202 S.W.3d at 143-44
    (citing
    Toney, 
    979 S.W.2d 642
    ).      While the charge in this case includes an instruction on
    reasonable doubt, the “deadly weapon” issue does not explicitly incorporate the beyond-
    a-reasonable-doubt burden of proof.        The charge deficiency is not structural error,
    however, because the “jury instructions did not totally omit any reference to proof
    beyond a reasonable doubt, nor did those instructions mis-direct the jury concerning that
    burden of proof.” 
    Olivas, 202 S.W.3d at 145
    .
    If a charge error is properly preserved by objection, reversal will be necessary if
    the error is not harmless. 
    Almanza, 686 S.W.2d at 171
    ; see also Brock v. State, 
    495 S.W.3d 1
    ,
    Tucker v. State                                                                         Page 6
    13 (Tex. App.—Waco 2016, pet. ref’d). Conversely, if error is not preserved at trial by
    proper objection, a reversal will be required “only if the error was fundamental in the
    sense that it was so egregious and created such harm that the defendant was deprived of
    a fair and impartial trial.” Villarreal v. State, 
    453 S.W.3d 429
    , 433 (Tex. Crim. App. 2015).
    “Charge error is egregiously harmful if it affects the very basis of the case, deprives the
    defendant of a valuable right, or vitally affects a defensive theory.” Id.; see also Riggs v.
    State, 
    482 S.W.3d 270
    , 273 (Tex. App.—Waco 2015, pet. ref’d). The inquiry is fact specific
    and performed on a case-by-case basis, and the defendant must have suffered actual, not
    theoretical, harm. Gelinas v. State, 
    398 S.W.3d 703
    , 710, 724 (Tex. Crim. App. 2013); Sanchez
    v. State, 
    376 S.W.3d 767
    , 775 (Tex. Crim. App. 2012).
    Tucker did not object to the trial court’s failure to include a reasonable doubt
    instruction specifically linked to the deadly weapon finding, requiring Tucker to establish
    that he suffered “egregious” harm in order to prevail on appeal. In evaluating whether
    egregious harm has occurred, we analyze the following: 1) the entire jury charge; 2) the
    state of the evidence, including the contested issues and the weight of probative evidence;
    3) the arguments of counsel; and 4) any other relevant information revealed by the record
    as a whole. 
    Riggs, 482 S.W.3d at 273
    ; 
    Olivas, 208 S.W.3d at 144
    .
    Olivas presents a factual background that is remarkably similar to this case. Olivas
    was convicted of a variety of offenses including four counts of evading arrest by fleeing
    from the police and using his vehicle as a deadly weapon. The charge and verdict in
    Tucker v. State                                                                        Page 7
    Olivas’s case also did not require the jury to make the deadly weapon finding beyond a
    reasonable doubt. Because of the similarities, Olivas is instructive in our analysis.
    In regard to the first factor, the jury instructions repeatedly note that the State has
    the burden to prove the elements of the offense beyond a reasonable doubt. The section
    entitled “Burden of Proof” includes the following instruction:
    The burden of proof through the trial is always on the state. The
    defendant does not have the burden to prove anything. The state must
    prove every element of the offense beyond a reasonable doubt to establish
    guilt for the offense. If the state proves every element of the offense beyond
    a reasonable doubt, then you must find the defendant guilty. If the state
    does not prove every element of the offense beyond a reasonable doubt,
    then you must find the defendant not guilty. If, after you have considered
    all the evidence and these instructions, you have a reasonable doubt about
    whether the defendant is guilty, you must find the defendant not guilty.
    The charge also includes references to reasonable doubt in the sections entitled
    “Presumption of Innocence,” “The Verdict,” and “Application of Law of [sic] Facts.” The
    verdict questions for both evading arrest and use of a deadly weapon do not set out any
    explicit burden of proof. There was, however, no mention in the charge that any other
    burden of proof was applicable or that Tucker might have some burden of proof on any
    issue or fact.
    [W]ith both the “guilty” or “not guilty” verdict forms and the deadly
    weapon issue, the jury was required to refer back to the general instruction.
    And those instructions clearly told the jury that the State had the burden to
    prove, beyond a reasonable doubt, every element of the offense. On the
    other hand, . . . the term “deadly weapon” was never defined as an element
    of the offense, and the guilty verdict finding was separate from the deadly-
    weapon finding, indicating that the use of a deadly weapon was not an
    element of the evading arrest offense itself. Thus, it is possible, when
    viewing the written jury instructions in isolation, that the jury might have
    Tucker v. State                                                                          Page 8
    thought that neither the State nor appellant had any burden of proof on this
    question.
    
    Olivas, 202 S.W.3d at 146-47
    . We hold that the first factor is not determinative.
    Second, we must look to the state of the evidence and the contested issues. The
    primary disputed issue at trial was Tucker’s intent—in relation to both the evading and
    deadly weapon issues. The testimony of Jeter and Jeffcoat, as well as the dash-cam video,
    illuminate the danger Tucker posed on the night he fled from law enforcement. The dash-
    cam video showed that Tucker was unable to maintain a straight course, weaving from
    lane to lane and off the side of the road. He traveled significant periods of time in the left
    lane and narrowly missed a number of oncoming vehicles. When Jeffcoat used his public
    address system to tell Tucker to stop, Tucker accelerated. Tucker also sped through what
    appeared to be a construction zone, mowing down reflective posts on the side of the road.
    When Tucker took an abrupt turn down a smaller road, the move almost resulted in a
    collision between Jeffcoat and Lawson. Tucker then hit the ditch at least twice, driving
    through heavy foliage. Jeter’s testimony detailed other instances of Tucker’s reckless
    driving that occurred prior to the beginning of the video—Tucker ran through stop signs,
    passed vehicles on the right shoulder, and accelerated quickly when Jeter attempted to
    stop him.
    “A conclusion that a car is a deadly weapon ‘requires evidence that others were
    endangered, and not merely a hypothetical potential for danger if others had been
    present.’” 
    Olivas, 202 S.W.3d at 147
    (quoting Mann v. State, 
    13 S.W.3d 89
    , 92 (Tex. App.—
    Austin 2000), aff’d, 
    58 S.W.3d 132
    (Tex. Crim. App. 2001)). As in Olivas, there is ample
    Tucker v. State                                                                         Page 9
    evidence that Tucker’s use of his vehicle posed an actual danger of death or serious bodily
    injury to others. In contrast to Olivas, Tucker’s driving was captured on Jeffcoat’s dash-
    cam video, enabling the jurors to view the actual, rather than hypothetical danger, Tucker
    posed to others. As Jeter noted, “Ten years as a trooper, I’m going to tell you, this is one
    of the most impaired vehicles I’ve ever seen in my career as a trooper, and in my last nine
    years as a Ranger. I’ve never seen a car in motion that bad.”
    Tucker has not shown that the jury likely used some standard other than “beyond
    a reasonable doubt” to make its deadly weapon finding. The evidence is sufficient to
    support such a finding beyond a reasonable doubt and is sufficiently conclusive to make
    the second factor determinative.
    Even if the second factor is insufficient in itself to establish that Tucker did not
    suffer egregious harm, it is sufficient when considered along with the other factors. In
    regard to the closing arguments, both the prosecutor and Tucker’s attorney mentioned
    reasonable doubt. Defense counsel argued reasonable doubt a number of times, although
    his main focus was on Tucker’s intent. Tucker’s attorney argued:
    As far as this deadly weapon charge, again, okay, I’m going to ask you
    all not to sign that. All right? There is a certain county south of here that
    came up with an idea of starting to charge people with deadly weapon with
    a vehicle and that was not the Legislative intent. Okay. They came up with
    that to find something else to throw at people and that’s not what it was
    supposed to be used for. Okay. So I’m going to say, don’t sign that. And
    again, the main thing is, they didn’t meet their burden. There is no intent there.
    So I’m going to ask y’all to go back there and sign not guilty, put them to
    their job.
    Tucker v. State                                                                              Page 10
    While attenuated, the argument at least infers that the State has the burden of proving
    beyond a reasonable doubt that Tucker used his vehicle as a deadly weapon. The jury
    arguments did not, however, explicitly inform the jury that they could not answer the
    deadly-weapon issue affirmatively unless they found that the State had carried its burden
    of proof “beyond a reasonable doubt.” The jury arguments are not, therefore, definitive
    by themselves.
    The fourth factor requires the reviewing court to look at any other relevant
    information. As previously noted, Tucker did not return to court after the first day of
    trial. There is nothing in the record to indicate that the jury was provided any explanation
    for Tucker’s absence, leaving it free to infer that Tucker’s absence was indicative of his
    guilt.
    There is nothing in the record that suggests that the jury ignored the burden of
    proof or failed to apply it correctly. After a review of the entire record, we cannot say
    that omission of the burden of proof for the deadly weapon finding from the jury charge,
    while erroneous, resulted in egregious harm—“that type and level of harm which affects
    ‘the very basis of the case,’ deprived [the defendant] of a ‘valuable right,’ or ‘vitally
    affect[ed] a defensive theory.’” 
    Olivas, 202 S.W.3d at 149
    (quoting 
    Almanza, 686 S.W.2d at 172
    ).    We therefore overrule Tucker’s second issue and affirm the trial court’s
    judgment.
    REX D. DAVIS
    Justice
    Tucker v. State                                                                      Page 11
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    (Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the
    trial court’s judgment. A separate opinion will not issue.)
    Affirmed
    Opinion delivered and filed November 21, 2018
    Do not publish
    [CR25]
    Tucker v. State                                                                     Page 12