Robert Carver v. State ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ROBERT CARVER, § No. 08-12-00300-CR
Appellant, § Appeal from
v. § 362nd District Court
THE STATE OF TEXAS, § of Denton County, Texas
Appellee. § (TC # F-2010-2243-D)
OPINION
Robert Carver, proceeding pro se, appeals his convictions of possession of
methamphetamine (Count I) and possession of GHB (Count II). A jury found Appellant guilty
of each count and assessed his punishment at imprisonment for a term of ten years on Count I
and twenty years on Count II. We affirm.
FACTUAL SUMMARY
Angie Kinser first met Appellant in 2008 or 2009 while she was working at a bar in
Frisco, Texas. In early 2010, Kinser was in Dallas and ran into Appellant. They spoke for a
while and exchanged phone numbers. Kinser was unemployed and did not have a place to live.
Appellant offered Kinser a place to stay and said he might be able to help her find employment.
A couple of weeks later, Kinser went out with Appellant and she moved into his home in
Lewisville. Within a short period of time, they went to Las Vegas and got married. Both
Appellant and Kinser frequently used alcohol and drugs, including methamphetamine and GHB.
On June 16, 2010, one of Kinser’s friends, Kerri Kincaid, was visiting at Appellant’s
house. All of them were drinking and using methamphetamine and GHB. Appellant went into
the bedroom, but Kinser and Kincaid continued to “party.” Appellant became upset when Kinser
did not join him in the bedroom, but she stayed in another room with Kincaid. Kinser told
Kincaid that she wanted to leave Appellant and she suspected he was hiding something on his
work computer. Kinser went into the bedroom to retrieve the laptop but Appellant, who was
pretending to be asleep, began yelling at her and asking why she had his computer. Kincaid
attempted to calm Appellant while Kinser took a shower. After Kinser got out of the shower, she
began gathering up some of her belongings to leave. When Appellant realized what Kinser was
doing, he became extremely upset and chased her out of the house with a knife and a stun gun
while threatening to kill her. Appellant eventually grabbed Kinser and dragged her back into the
house while telling Kinser that she was not going anywhere. When Appellant learned that
Kincaid had called 911, he became frantic and went into the kitchen. Kinser could hear him
doing something in the kitchen. Police officers soon arrived at the residence and separated
Appellant, Kinser, and Kincaid. The officers also found methamphetamine in the kitchen sink
and bottles of GHB1 inside of a small refrigerator in the master bedroom. Appellant was arrested
for aggravated assault and possession of methamphetamine2 and GHB. Kinser was also charged
with possession of the methamphetamine found in the house.3
1
GHB is the abbreviation of gamma-hydroxybutyrate or gamma-hydroxybutyric acid. GHB is included in Penalty
Group 1. TEX.HEALTH & SAFETY CODE ANN. § 481.102(9)(West 2010).
2
Methamphetamine is in Penalty Group 1. TEX.HEALTH & SAFETY CODE ANN. § 481.102(6).
3
Kinser entered a plea of guilty and was sentenced to imprisonment for two years.
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An emergency protective order was issued on June 17, 2010 to protect Kinser from
Appellant. Appellant signed the protective order on that same date and acknowledged he had
received a copy of the order at the magistrate’s hearing. The protective order expressly
prohibited Appellant from committing family violence against Kinser. Unaware that Appellant
had bonded out and was at home, Kinser went to Appellant’s house on June 20, 2010 to feed
their pets. Appellant became angry with Kinser and locked her in the bedroom. She eventually
convinced him to let her leave by telling him that the police were looking for her to give her a
copy of the protective order.
Kinser met Kincaid at the police station and she reported what Appellant had done.
Police officers went with Kinser to the house so she could get her belongings and leave. Kinser
waited outside while the officers walked through the house. After the officers assured Kinser
Appellant was not home, Kinser went inside and the officers left. Kinser was getting some of
her clothes from the dryer in the garage when she turned around and saw Appellant. Appellant
struck her face with his fist and she fell onto her back. Appellant picked up a shovel and began
trying to jab her with it. Kinser, who was still on the floor, blocked the blows with the shovel as
best she could and she pleaded with Appellant to stop. Rather than stopping the assault,
Appellant picked up an ax and held it in his hand above Kinser. Kinser kicked him in the
abdomen as hard as she could and Appellant fell backwards. She ran into the house and
deadbolted the door to the garage before running out of the house. Kinser ran to a neighbor’s
house but the neighbor refused to help and closed the door. Another neighbor, Peggy Romo, saw
Appellant chasing Kinser while she was running as fast as she could and screaming, “He’s going
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to kill me.” Romo called 911 and reported what she had seen. When the police arrived,
Appellant was in the house and refused to come outside. He appeared extremely angry and was
chopping at the back door of the house with the axe. During this tirade, Appellant directed
profanity at Kinser and one of the officers testified that Appellant wanted to “get ahold of her.”
After several hours, Appellant exited the house and was taken into custody.
A grand jury indicted Appellant for possession of methamphetamine and GHB alleged to
have occurred on June 16, 2010 (trial court cause number F-2010-2243-D and appellate cause
number 08-12-00300-CR), violation of a protective order alleged to have occurred on June 20,
2010 (trial court cause number F-2010-1716-D and appellate cause number 08-12-00299-CR),
and aggravated assault with a deadly weapon alleged to have occurred on June 20, 2010 (trial
court cause number F-2010-1715-D and appellate cause number 08-12-00298-CR). The cases
were tried together and a jury found Appellant guilty as charged by the indictment in each case.
APPELLANT’S BRIEF
Appellant was initially represented by appointed counsel on appeal, but he filed a motion
to represent himself after his attorney filed the brief on his behalf. The trial court conducted a
hearing and warned Appellant of the dangers and disadvantages of self-representation but
Appellant persisted in his desire to proceed without counsel. Accordingly, we granted
Appellant’s motion and struck the brief filed by counsel.
Appellant has three appeals pending before the Court, cause numbers 08-14-00298-CR,
08-14-00299-CR, and 08-14-00300-CR. He filed a single handwritten brief in these appeals and
he raises ten issues, some of which do not pertain to the instant appeal. Rather than requiring
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Appellant to rebrief, we will simply not address the issues which are inapplicable to this appeal.
In order to avoid confusion for the parties, we will use the number assigned to each issue in the
brief rather than renumbering the issues.
ACCOMPLICE WITNESS INSTRUCTION
In Issue Four, Appellant argues that the trial court erred by failing to include a jury
instruction on the accomplice witness rule. Article 38.14 provides that: “A conviction cannot be
had upon the testimony of an accomplice unless corroborated by other evidence tending to
connect the defendant with the offense committed; and the corroboration is not sufficient if it
merely shows the commission of the offense.” TEX.CODE.CRIM.PROC.ANN. art. 38.14 (West
2005). If the evidence clearly shows that an accomplice witness is an accomplice as a matter of
law, the trial court must provide the accomplice-witness jury instruction. Cocke v. State, 201
S.W.3d 744, 748 (Tex.Crim.App. 2006). The State concedes that Kinser was an accomplice as a
matter of law and the court’s charge did not include the accomplice witness instruction. It
argues, however, that the error did not result in egregious harm.
As observed by the State, we must examine the record for egregious harm because
Appellant did not object to the omission of the accomplice witness instruction. See Almanza v.
State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984)(op. on reh’g). Egregious harm is a difficult
standard to prove. Taylor v. State, 332 S.W.3d 483, 489 (Tex.Crim.App. 2011); Hutch v. State,
922 S.W.2d 166, 172 (Tex.Crim.App. 1996). In determining whether Appellant suffered
egregious harm, we review “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
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relevant information revealed by the record of the trial as a whole.” Taylor, 332 S.W.3d at 489,
quoting Almanza, 686 S.W.2d at 171. Errors which result in egregious harm are those that affect
the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive
theory, or make a case for conviction clearly and significantly more persuasive. Taylor, 332
S.W.3d at 490; Almanza, 686 S.W.2d at 172. Under the egregious harm standard, the omission
of an accomplice witness instruction is generally harmless unless the corroborating (non-
accomplice) evidence is “so unconvincing in fact as to render the State’s overall case for
conviction clearly and significantly less persuasive.” Herron v. State, 86 S.W.3d 621, 632
(Tex.Crim.App. 2002), quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991);
Jones v. State, 195 S.W.3d 279, 290 (Tex.App.--Fort Worth 2006, no pet.). This analysis
requires us to assess the strength of non-accomplice evidence by examining its reliability or
believability and the degree to which it connects the defendant to the crime. Herron, 86 S.W.3d
at 632.
On June 16, 2010, Police Officers Bryan Shelton and Paul Bennett of the Lewisville
Police Department were dispatched to a residence in Lewisville to investigate a disturbance call.
The dispatcher advised Shelton and the other responding officers that a man with a taser was
chasing a woman. Shelton knocked on the door to the home and Kinser answered the door. The
officers got Kinser out of the house before proceeding further. Shelton saw a man he
subsequently identified as Robert Carver step out of the kitchen area and into a hallway. Shelton
described Appellant as “built” and he appeared as though he spent a lot of time lifting weights.
The officers handcuffed Appellant and made him sit in the dining room while they investigated
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the case. Shelton walked into the kitchen with the intent of going out in the alley where the
witness, Kincaid, was located, but he saw a woman’s purse on the floor and what appeared to be
clear chunks of crystal methamphetamine in the sink. A small baggie with a crystal
methamphetamine-like substance was on the floor next to the purse. The substances were
subsequently analyzed and determined to be methamphetamine. Officers Bennett and Detective
Duk Lee also saw the methamphetamine on the floor and in the sink. It appeared to Detective
Lee that someone had been attempting to dispose of the drugs in the kitchen sink.
Neither Shelton nor Bennett could make an in-court identification of Appellant, but
Detective Lee and Officer Eddie Barrett positively identified Appellant as the same person
arrested at the scene. Lee also testified that Appellant owned the home. Lee recalled that
Appellant looked like a bodybuilder and appeared to be in good shape. In addition to the
methamphetamine found in the sink and on the kitchen floor, the officers found GHB in a small
refrigerator in the master bedroom as well as steroids in the master bedroom closet. According
to Detective Lee and Officer Barrett, GHB is used by bodybuilders to increase human growth
hormone.
Appellant admitted to Detective Lee that he had knowledge of the methamphetamine in
the sink and his fingerprints might be on the baggies, but he told Barrett that the drugs found in
his home belonged to Kinser. Officer Barrett spoke to Appellant about becoming a confidential
informant and Appellant provided information regarding methamphetamines even though he was
not used as a confidential informant due to department policy. Shortly after Appellant’s arrest on
June 16, 2010, Appellant told Officer Jason Williams that he had used Effexor and Klonopin and
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he “may have washed it down with some GHB.”
The testimony of the non-accomplice witnesses is reliable and connected Appellant to
possession of the methamphetamine and GHB independent of Kinser’s testimony. We conclude
that the omission of the accomplice witness instruction did not result in egregious harm to
Appellant. Issue Four is overruled.
HEARSAY
In Issue Five, Appellant contends that the trial court abused its discretion by admitting
the hearsay statements Kerri Kincaid made to Officer Shelton under the excited utterance
exception.
Standard of Review and Relevant Law
A trial court has broad discretion in determining the admissibility of evidence. Allridge
v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991). Consequently, an appellate court reviews
a trial court's decision admitting or excluding evidence for an abuse of discretion. Martinez v.
State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). The trial court’s ruling will be overturned
only if it is so clearly wrong that the ruling lies outside the zone of reasonable disagreement.
Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008); Montgomery v. State, 810 S.W.2d
372, 391 (Tex.Crim.App. 1990)(op. on reh’g).
Hearsay is not admissible except as provided by statute or the Texas Rules of Evidence.
TEX.R.EVID. 802. An excited utterance is one exception to the general prohibition against the
admission of hearsay. TEX.R.EVID. 803(2). Rule 803(2) provides that an excited utterance is:
“A statement relating to a startling event or condition made while the declarant was under the
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stress of excitement caused by the event or condition.” TEX.R.EVID. 803(2). To qualify as an
excited utterance, the statement must be a product of a startling occurrence; the declarant must
have been dominated by the emotion, excitement, fear, or pain of the occurrence; and the
statement must be related to the circumstances of the startling occurrence. Couchman v. State, 3
S.W.3d 155, 159 (Tex.App.--Fort Worth 1999, pet. ref’d)(citing McFarland v. State, 845 S.W.2d
824, 846 (Tex.Crim.App. 1992)).
In determining whether a hearsay statement is admissible as an excited utterance, the
court may consider the time elapsed and whether the statement was in response to a question, but
these two factors are not dispositive. Zuliani v. State, 97 S.W.3d 589, 595-96 (Tex.Crim.App.
2003). The critical determination is “whether the declarant was still dominated by the emotions,
excitement, fear, or pain of the event” or condition at the time of the statement. Id., 97 S.W.3d at
596; Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App. 2001). The reviewing court must
determine whether the statement was made “under such circumstances as would reasonably show
that it resulted from impulse rather than reason and reflection.” Zuliani, 97 S.W.3d at 595,
quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App. 1964).
Analysis
Kincaid was the person who called 911 on June 16, 2010. Officer Shelton arrived at the
scene in “well less than 10 minutes” after he received the dispatch and he spoke to Kincaid, who
appeared “frazzled,” approximately ten minutes after he arrived at the scene. He asked Kincaid
what had happened and what she had seen. When Shelton began to state what Kincaid told him,
Appellant made a hearsay objection and the trial court sustained it. The State responded that
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Kincaid’s statements to Shelton were admissible under the excited utterance exception to the
hearsay rule. Appellant took the witness on voir dire and Shelton testified that Kincaid was
excited to the point that she was not communicating with him in a normal fashion and was
speaking fast. The trial court overruled Appellant’s hearsay objection. Shelton then testified that
the “motivating event” which caused Kincaid to call the police was that Appellant became upset
with Kinser and he chased her around a car with a taser.
Kincaid’s statements to Officer Shelton obviously related to the startling event which
precipitated her phone call to the police, that is, seeing Appellant chase Kinser with a butcher
knife and what Kincaid described as a taser. The record reflects that Kincaid made her
statements to Officer Shelton within minutes after the startling event. The fact that Kincaid
made her statements to Officer Shelton in response to his general questions asking what had
happened and what she had she seen does not make the testimony inadmissible. See Tejeda v.
State, 905 S.W.2d 313, 316 (Tex.App.--San Antonio 1995, pet. ref’d). Shelton’s testimony that
Kincaid was excited, not communicating normally, and talking fast provides evidence from
which the trial court could have concluded that Kincaid was still dominated by the excitement of
the events she had just witnessed. We conclude that the trial court did not abuse its discretion by
finding that Kincaid’s statements resulted from impulse rather than reason and reflection. See
Amador v. State, 376 S.W.3d 339, 344 (Tex.App.--Houston [14th Dist.] 2012, pet. ref’d)(holding
that robbery victim’s statements to police officer, identifying defendant, were admissible under
excited utterance exception to hearsay rule, where statements were made shortly after victim was
robbed at gunpoint, and other witnesses described victim as being frightened and in an excited
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state).
Any Error is Harmless
Even if the hearsay statement is not properly admissible as an excited utterance, its
erroneous admission is harmless because the same evidence was admitted through other
witnesses. The erroneous admission of evidence is non-constitutional error. Garcia v. State, 126
S.W.3d 921, 927 (Tex.Crim.App. 2004). An appellate court must disregard the error unless it
affected an appellant’s substantial rights. TEX.R.APP.P. 44.2(b). A substantial right is affected
when the error had a substantial and injurious effect or influence in determining the jury’s
verdict. Coble v. State, 330 S.W.3d 253, 280 (Tex.Crim.App. 2010); Garcia, 126 S.W.3d at 927.
An error does not affect a substantial right if we have “fair assurance that the error did not
influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417
(Tex.Crim.App. 1998).
Kinser testified that Appellant chased her with a knife and taser and she yelled for
Kincaid to call 911. Further, Officer Shelton testified that Kinser told him that Appellant chased
her with a taser and her statements to him were consistent with the information he received from
dispatch. Given that the challenged hearsay statement is cumulative of other evidence admitted
at trial, we conclude that any error in the admission of the hearsay was harmless. See Amador,
376 S.W.3d at 344-45 (holding that any error in admission of robbery victim’s statements to
police officer, identifying defendant, under excited utterance exception to hearsay rule was
harmless error, where similar statements were testified to by three other witnesses). Issue Five is
overruled.
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EXCLUSION OF EVIDENCE
In Issue Six, Appellant asserts that the trial court abused its discretion by excluding
evidence related to the complainant’s conviction of theft. During direct examination, the
prosecutor elicited testimony from Angie Kinser regarding her prior convictions, including a
theft of property over $50 but less than $500. She explained during cross-examination that the
theft conviction involved the shoplifting of clothing. Appellant questioned her regarding the
details of the offense and Kinser stated she had stolen clothing for herself and her daughter.
When she did not remember taking an item of men’s clothing, Appellant offered into evidence
the complaint and information (Defense Exhibit 1) and the probable cause affidavit prepared by
the arresting police officer (Defense Exhibit 2), but the State objected that it was improper
impeachment because she had admitted to the prior conviction. The trial court sustained the
objection.
Rule of Evidence 609 permits the impeachment of a witness with a prior felony
conviction or a crime involving moral turpitude provided the trial court determines that the
probative value of the evidence outweighs its prejudicial effect. TEX.R.EVID. 609(a). Theft is a
crime of moral turpitude. LaHood v. State, 171 S.W.3d 613, 620 (Tex.App.-Houston [14th Dist.]
2005, pet. ref d); Ludwig v. State, 969 S.W.2d 22, 28 (Tex.App.--Fort Worth 1998, pet. ref’d).
The evidence regarding the prior conviction may be elicited from the witness or established by
public record, but the details of the offense are inadmissible. TEX.R.EVID. 609(a); Mays v. State,
726 S.W.2d 937, 953 (Tex.Crim.App. 1986); Andrews v. State, 429 S.W.3d 849, 858 (Tex.App.--
Texarkana 2014, pet. ref’d). Given that Kinser admitted the prior conviction on direct
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examination, the trial court did not abuse its discretion by excluding the complaint and
information (Defense Exhibit 1). Further, Appellant was not entitled to inquire into or introduce
evidence regarding the details of the theft conviction. Thus, the trial court did not abuse its
discretion by excluding the probable cause affidavit (Defense Exhibit 2). See Andrews, 429
S.W.3d at 858 (holding that defendant was permitted to establish that witness had been convicted
of a felony or crime of moral turpitude, but he could not inquire as to the circumstances
surrounding the offense). Issue Six is overruled.
INCOMPLETE RECORD ON APPEAL
In Issue Seven, Appellant argues that his right to an adequate record on appeal has been
violated because a portion of the reporter’s record is missing, certain exhibits have not been
included in the reporter’s record, and some documents have not been included in the clerk’s
record.
Missing Portion of the Reporter’s Record
An appellant is entitled to a new trial under the following circumstances: (1) if the
appellant has timely requested a reporter’s record; (2) if, without the appellant’s fault, a
significant portion of the reporter’s record has been lost or destroyed; (3) if the lost or destroyed
portion of the reporter’s record is necessary to the appeal’s resolution; and (4) if the lost or
destroyed portion of the reporter’s record cannot be replaced by agreement of the parties.
TEX.R.APP.P. 34.6(f). The rule’s requirement that the appellant show that the missing portion of
the record is necessary to resolution of the appeal is a harm analysis. Routier v. State, 112
S.W.3d 554, 571 (Tex.Crim.App. 2003); Issac v. State, 989 S.W.2d 754, 757 (Tex.Crim.App.
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1999).
The official court reporter, Molly Bowers, filed the reporter’s record and notified the
Court that a portion of the record had not been prepared because a substitute court reporter had
advised her that he had lost his notes due to a computer malfunction. We ordered the trial court
to conduct a hearing to address whether a portion of the reporter’s record had been lost or
destroyed. See TEX.R.APP.P. 34.6(f). It is undisputed that Appellant timely requested a
reporter’s record. Consequently, our order required the trial court to determine whether a
significant portion of the record was lost or destroyed, whether the missing portion of the record
is necessary to the appeal, and whether the record can be replaced by agreement of the parties.
At that hearing, the State and Appellant, through his counsel, agreed that the missing portions of
the reporter’s record were the punishment charge conference, closing arguments during
punishment, and the return of the jury’s punishment verdict. After a discussion on the record
between the parties and the trial judge regarding what had transpired at the charge conference,
closing arguments, and the return of the punishment verdict, the trial court determined that the
missing portion of the reporter’s record is not a significant portion. Both Appellant and the State
agreed with this finding. Additionally, the attorney appointed to represent Appellant on appeal
advised the trial court that he had reviewed the entire reporter’s record and he did not believe
that the missing portion of the reporter’s record is necessary to the appeal. The trial court
entered a written finding that the missing portion of the record is not significant to resolution of
the appeal. Finally, the trial court determined that the missing portion of the record could not be
replaced by agreement of the parties.
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Citing Kirtley v. State, 56 S.W.3d 48 (Tex.Crim.App. 2001), Appellant maintains that the
missing portion of the reporter’s record is necessary to his appeal because he is unable to
determine whether his trial attorney is ineffective without the record. In Kirley, the appellant
was placed on deferred adjudication and the State later moved to adjudicate guilt. Kirtley, 56
S.W.3d at 49-50. An appeal was taken but the record of the revocation hearing was lost. Id.
The appellant claimed that the lost record was necessary to resolution of his complaint that trial
counsel was ineffective during the punishment portion of the revocation proceeding. Kirtley, 56
S.W.3d at 49-50. The Court of Criminal Appeals concluded that the record was necessary to
resolution of the appellant’s ineffective assistance of counsel claim.
Kirtley is distinguishable because the entire record was lost. In our case, the appellate
record includes all of the punishment phase of the trial except for the charge conference, closing
arguments, and the return of the jury’s punishment verdict. We do not read Kirtley as standing
for the proposition that a lost portion of a record is always necessary to resolution of an appeal if
the appellant claims ineffective assistance of counsel. Each case must be considered on its own
facts and a determination must be made whether the missing portion of the record is a significant
portion of the reporter’s record and whether it is necessary to resolution of the issues presented
on appeal.
Appellant contends that the missing portion of the record may demonstrate ineffective
assistance of counsel at trial based on two claims of deficient performance: (1) counsel failed to
request an accomplice witness instruction; and (2) counsel failed to object to the admission of
extraneous offenses and Appellant’s prior convictions. Appellant’s brief does not include an
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issue raising an ineffective assistance of counsel claim. Thus, Appellant’s assertion that the
missing portion of the record might show ineffective assistance of counsel is nothing more than
speculation. The Court of Criminal Appeals has held that Rule 34.6(f)’s requirement that the
appellant show the missing portion of the record is necessary to his appeal cannot be based on
speculation as to what might have been shown in the record. See Routier, 112 S.W.3d at 571
(holding that an appellant’s suggestion that jury instructions may have been erroneous, without
more, does not make that portion of the record necessary to the appeal). We conclude that
Appellant has failed to show he is entitled to a new trial under Rule 34.6(f) due to the loss of a
portion of the reporter’s record.
Exhibits Not Included in the Reporter’s Record
Appellant next claims that certain exhibits have not been included in the reporter’s
record. Prior to filing his brief, Appellant filed a motion to supplement the record with the
following items: (1) Lewisville Police Department Lab Request Form, dated 6-17-10; (2)
Lewisville Police Department Property/Evidence Report, dated 6-16-10 (report no. 10-06943);
(3) memo from the Lewisville Police Department addressing the firing of evidence technicians
for misappropriation of evidence; and (4) all of the crime scene photographs taking on June 16,
2010 including those not admitted into evidence at trial. In an order entered on September 11,
2013, we denied Appellant’s motion to supplement the record because the crime scene
photographs which were admitted into evidence and a lab report are included in the exhibits
volume and the remaining items were not admitted into evidence. The appellate court, the trial
court, or a party may request that the record be supplemented with items which were part of the
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trial record but omitted from the appellate record. See TEX.R.APP.P. 34.6(d). This rule does not
permit a party to supplement the record with evidence that was not offered or admitted during the
proceedings in the trial court.
Appellant additionally argues that the reporter’s record should include a transcription of
the grand jury testimony. In one of his motions, Appellant asked the Court to order that the
record be supplemented to include the transcript of the grand jury testimony. As we noted in our
order entered on September 11, 2013, the reporter’s record does not reflect that the grand jury
testimony was admitted into evidence. The reporter’s record cannot be supplemented with
matters which were not part of the record in the trial court. See TEX.R.APP.P. 34.6(d).
Items Excluded from the Clerk’s Record
Appellant also complains that the following items were omitted from the clerk’s record:
(1) a memo from the Lewisville Police Department addressing the firing of evidence technicians
for misappropriation of evidence; (2) the police evidence report listing the items tagged and
seized at the scene; (3) the jury panel lists, (4) the strike list of the State and defense; (5) juror
information forms; (6) the jury’s verdict forms; (7) objections to the charge; (8) and special
requested jury instructions and rulings by the trial court. Rule 34.5(c) provides that if a relevant
item has been omitted from the clerk’s record, the trial court, the appellate court, or a party may
by letter direct the trial court clerk to prepare and file a supplemental clerk’s record containing
the omitted item. TEX.R.APP.P. 34.5(c)(1).
With respect to the first two items, Appellant asserts that he was provided this
information as part of his discovery requests. Based on Appellant’s statements, these two items
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were provided to Appellant by the State, and therefore, the items appear to be part of the State’s
case file. There is nothing, however, to indicate that the first two items were ever included in the
records of the trial court clerk. Accordingly, we do not find that these items have been omitted
from the clerk’s record. Further, Appellant has not shown how the items are relevant to any
issue he has presented on appeal.
A supplemental clerk’s record containing the jury panel list and the strike lists was filed
after Appellant filed his brief. We notified Appellant that the supplemental record had been filed
and gave him an opportunity to file a supplemental brief, but none was filed. In our order dated
September 25, 2013, we denied Appellant’s request to supplement the record with the juror
information forms because he failed to make the required showing of good cause. See TEX.CODE
CRIM.PROC.ANN. art. 35.29 (West Supp. 2014). Regarding Appellant’s sixth request, the clerk’s
record includes the jury verdicts for both guilt-innocence and punishment as required by
TEX.R.APP.P. 34.5(a)(4). The record does not reflect that either party made any written
objections to the charge or that there were any special requested instructions. We conclude that
the clerk’s record has been properly supplemented with the relevant items. Issue Seven is
overruled.
IMPROPER JURY ARGUMENT
In Issue Eight, Appellant contends that the prosecutor made several comments during the
opening statement and closing argument which were not supported by the evidence. The State
responds that Appellant failed to preserve error with respect to any of the prosecutor’s
arguments. We agree.
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Preservation of Error
In order to preserve error regarding improper jury argument, a defendant must (1) make a
timely and specific objection; (2) request an instruction that the jury disregard the statement if
the objection is sustained; and (3) move for a mistrial if the instruction is insufficient to remove
the prejudice resulting from the argument. TEX.R.APP.P. 33.1(a); Cruz v. State, 225 S.W.3d 546,
548 (Tex.Crim.App. 2007). We have reviewed the record related to each comment and argument
identified in Appellant’s brief and have determined that Appellant objected to only two of them.
Appellant’s complaints about the remaining comments and arguments are waived.
During closing argument the prosecutor invited the jury to consider where the
methamphetamine was found, and stated: “And I take you back to the officer’s testimony.
When they arrived and they looked down the hallway -- and he tells you he can clearly see
Robert Carver standing right next to that sink, right next to that sink.” The trial court sustained
Appellant’s objection that the prosecutor had misstated the evidence and the court instructed the
jury to “remember the evidence as you received it.” Appellant did not move for a mistrial.
Thus, Appellant failed to pursue his objection to an adverse ruling and he received all the relief
he requested. See Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004). Nothing is
presented for our review.
The prosecutor also discussed the evidence related to Appellant going into the house after
the officers cleared it and left on June 20, 2010. When he told the jury that the house had a
boarded-up window, Appellant objected that it was not in evidence. The trial court did not
expressly rule on the objection but it instructed the jury to “remember the evidence as they
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received it.” Appellant did not move for a mistrial. As was the case with the prior argument, the
trial court granted Appellant all of the relief he requested and Appellant did not pursue his
objection to an adverse ruling. See Young, 137 S.W.3d at 69. Issue Eight is overruled.
EXTRANEOUS OFFENSES
In Issue Nine, Appellant argues that the trial court erred by admitting evidence of his
prior convictions. Appellant’s brief does not provide record references demonstrating where the
claimed error occurred, but we understand Appellant to complain about the admission of his
prior convictions during the punishment phase. Evidence may be admitted during the
punishment phase on any matter the court deems relevant to sentencing, including but not limited
to the prior criminal record of the defendant. TEX.CODE CRIM.PROC.ANN. art. 37.07 § (a)(1)
(West Supp. 2014). The record demonstrates that Appellant did not object to the admission of
the evidence showing his prior convictions. Consequently, Appellant failed to preserve any error
related to the admission of this evidence. See TEX.R.APP.P. 33.1. Issue Nine is overruled.
RIGHT TO COUNSEL
In his final issue, Appellant asserts that he was denied legal representation during his
post-indictment arraignment in cause numbers F-2010-2243-D and F-2010-1719-D. The record
does not support Appellant’s claim that his right to counsel was violated.
The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy
the right to have the assistance of counsel for his defense. U.S. CONST. amend. VI. The Sixth
Amendment right to counsel attaches once the “adversary judicial process has been initiated,”
and it guarantees “a defendant the right to have counsel present at all ‘critical’ stages of the
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criminal proceedings.” Pecina v. State, 361 S.W.3d 68, 77 (Tex.Crim.App. 2012), quoting
Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009). Arraignment has
been held to be a “critical stage” in a criminal case. See Hamilton v. Alabama, 368 U.S. 52, 82
S. Ct. 157, 7 L. Ed. 2d 114 (1961).
The record reflects that Appellant was arrested on June 16, 2010 for possession of a
controlled substance (cause number F-2010-2243-D) and he bonded out on that charge the
following day. Following Appellant’s arrest on June 20, 2010 for aggravated assault (cause
number F-2010-1715-D) and violation of a protective order (cause number F-2010-1716-D), the
surety filed a motion for discharge of liability. Appellant made a $10,000 bond on the
possession case on June 26, 2010, but the surety surrendered Appellant on July 15, 2010.
Appellant’s attorney, Stephen Wohr, filed a motion on July 23, 2010 to reinstate Appellant’s
bond in each of these cases. A Denton County grand jury returned indictments against Appellant
on July 29, 2010 for the aggravated assault and violation of a protective order offenses, and
according to Appellant, he was arraigned on September 2, 2010. On September 23, 2010,
Appellant was indicted in cause number F-2010-2243-D (appeal cause number 08-14-00300-
CR).4 He was served with a copy of the indictment on September 30, 2010. See TEX.CODE
CRIM.PROC.ANN. arts. 25.01, 25.02 (West 2009)(requiring clerk in felony cases to prepare
certified copy of indictment and deliver it to sheriff for service on the defendant). The record
does not reflect when Appellant was arraigned in this case or if his attorney waived arraignment5,
4
Appellant was also indicted in cause number F-2010-2019-D, but the jury acquitted Appellant of that charge.
Consequently, we will restrict our review of this issue to cause number F-2010-2243-D.
5
See TEX.CODE CRIM.PROC.ANN. art. 26.011 (West 2009)(authorizing the waiver of arraignment by defendant’s
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but he was represented by counsel from July 23, 2010 through November 17, 2011 when the trial
court granted counsel’s motion to withdraw. The trial court granted Appellant’s application for
appointment of counsel in the possession case on February 14, 2012.
While arraignment is a critical stage, the record shows that Appellant was represented by
counsel both before and after indictment in this case. The record does not support Appellant’s
claim that he was denied his right to counsel during this critical stage. Accordingly, we overrule
Issue Ten. Having overruled each issue presented on appeal, we affirm the judgment of the trial
court.
January 28, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)
(Do Not Publish)
attorney).
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