Kevin Ray Beckstrand v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00399-CR
KEVIN RAY BECKSTRAND APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1309368D
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MEMORANDUM OPINION1
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A jury convicted Appellant, Kevin Ray Beckstrand, of the offense of
stalking and assessed his punishment at ten years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice and a $5,000
fine. In five issues, Appellant argues that (1) the trial court erred by denying his
motion to recuse the trial judge; (2) the evidence was insufficient to prove he
1
See Tex. R. App. P. 47.4.
committed the offense of stalking; (3) the trial court erred by admitting hearsay
statements; (4) the trial court, during the punishment phase of trial, erred by
admitting a letter Appellant had sent to the trial judge; and (5) Appellant’s
punishment violates the Eight Amendment’s ban on cruel and unusual
punishment. We affirm.
Background
In the indictment, which we break down for easier comprehension, the
State alleged that on or about December 23, 2012, in Tarrant County, Texas,
 Appellant knowingly engaged in conduct that was directed
specifically at another, namely, Erin Beckstrand (Complainant);
 Appellant knew or reasonably believed that Complainant would
regard the conduct as threatening bodily injury or death to herself;
 said conduct caused Complainant to be placed in fear of bodily
injury or death;
 said conduct would cause a reasonable person to fear bodily injury
or death for herself;
 the conduct occurred on more than one occasion and was pursuant
to the same scheme or course of conduct, to-wit:
 on or about July 25, 2011, Appellant purchased a firearm;
 on or about July 26, 2011, Appellant took that firearm to
Complainant’s residence;
 on or about July 26, 2011, Appellant entered Complainant’s
residence;
 on or about July 26, 2011, Appellant, while at Complainant’s
residence or habitation, threatened to harm her;
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 on or about October 6, 2011, Appellant went to the Children’s
Courtyard in violation of a court order; and
 on or about September 20, 2012, through December 29, 2012,
Appellant wrote and sent letters to Complainant.
The State alleged the offense of stalking. See Act of May 19, 2011, 82nd Leg.,
R.S., ch. 591, § 1, 2011 Tex. Sess. Law Serv. 1433 (West) (effective September
1, 2011),2 amended by Act of May 24, 2013, 83rd Leg., R.S., ch. 1278, § 2, 2013
Tex. Sess. Law Serv. 3232 (West) (effective September 1, 2013) (current version
2
The statutory language itself provides:
(a) A person commits an offense if the person, on more than one
occasion and pursuant to the same scheme or course of conduct
that is directed specifically at another person, knowingly engages
in conduct that:
(1) the actor knows or reasonably believes the other person will
regard as threatening:
(A) bodily injury or death for the other person;
....
(2) causes the other person, a member of the other person’s
family or household, or an individual with whom the other
person has a dating relationship to be placed in fear of bodily
injury or death or fear that an offense will be committed
against the other person’s property; and
(3) would cause a reasonable person to fear:
(A) bodily injury or death for himself or herself. . . .
Id. The State’s “on or about” date of December 23, 2012, suggests the State
was relying on the statute in effect on September 1, 2011. To the extent some of
Appellant’s conduct predated the changes that became effective September 1,
2011, none of those changes impacted Appellant’s case.
3
at Tex. Penal Code Ann. § 42.072(a)(1)(A), (2), (3)(A) (West Supp. 2014).
Stalking is a third degree felony punishable by imprisonment in the Texas
Department of Criminal Justice for any term of not more than ten years and by a
fine not to exceed $10,000. Id. § 12.34 (West 2011), § 42.072(b).
After hearing the evidence, the jury convicted Appellant as charged in the
indictment. After hearing additional evidence, the jury assessed Appellant’s
punishment at ten years’ imprisonment and a $5,000 fine. The trial court
sentenced Appellant in accordance with the jury’s recommendation.
Sufficiency of the Evidence
In his second issue, Appellant attacks the sufficiency of the evidence.
Appellant seeks an acquittal. We address this issue first because it potentially
disposes of the entire proceeding against Appellant definitively.
Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
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The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
We measure the sufficiency of the evidence by the elements of the offense
as defined by the hypothetically correct jury charge for the case, not the charge
actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.
State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of
the crime are determined by state law.”). Such a charge is one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized
by the indictment means the statutory elements of the charged offense as
5
modified by the factual details and legal theories contained in the charging
instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)
(“When the State pleads a specific element of a penal offense that has statutory
alternatives for that element, the sufficiency of the evidence will be measured by
the element that was actually pleaded, and not any alternative statutory
elements.”).
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor. Dobbs, 434 S.W.3d at 170; Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). In determining the sufficiency of the evidence to
show an appellant’s intent, and faced with a record that supports conflicting
inferences, we “must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflict in favor of the prosecution,
and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex.
Crim. App. 1991).
The Evidence
A pawnbroker testified that on July 25, 2011, he sold an Ultra Star nine-
millimeter pistol to Appellant. The form the pawnbroker submitted to the Bureau
of Alcohol, Tobacco, Firearms and Explosives, which was admitted into evidence
as State’s Exhibit 1, provided information corroborating the purchaser was
Appellant.
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Complainant’s brother remembered July 26, 2011, because he received
multiple phone calls from Complainant, who was extremely panicked, just before
10:00 p.m. He said Complainant told him that someone had broken into her
house, and she asked him to come over quickly; he went straight over to her
house where he saw a vehicle, a Ford F-150, parked in the driveway that he did
not recognize and, moments later, Appellant coming out of the garage from
inside the house. Complainant’s brother said he was somewhat shocked
because Appellant no longer lived there. According to Complainant’s brother,
Appellant screamed and yelled at him and then began hitting him.
Complainant testified that on the night of July 26, 2011, she was upstairs
taking a shower when she heard a banging, so she turned the shower off; she
heard more banging and noises from someone wandering downstairs and called
her brother. She then heard the garage door open and more yelling. “There was
cursing and, [‘]I’m going to kill you,[’] and something about Jesus, something
about the kids, something about my family, just more banging.” Complainant
said she called her brother a second time, and he said he was coming right over.
Complainant then called the police, who instructed her to hide, so she hid in the
closet in the bathroom. She heard more yelling and fighting, and she recognized
one of the voices as Appellant’s. Complainant remained hidden in the closet until
the police arrived.
Upon seeing her brother, Complainant was scared because he was
bruised, swollen, and cut. There was broken glass, and her back door was
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broken. Complainant and Appellant’s engagement picture had been rehung on
the wall, and a cross had been scratched into the wall. Appellant was in the
neighbor’s yard across the street.
Officer Joshua Russell, who responded to Complainant’s call for help,
testified that Appellant had told other officers at the scene that the F-150 truck
parked in Complainant’s driveway was his. Officer Russell described the “lady at
the house,” whom he later learned was Complainant, as “very hysterical.”
Appellant also informed the officers at the scene that there was a loaded weapon
in the vehicle. When searching the vehicle, Officer Russell found a loaded Ultra
Star nine-millimeter pistol and pepper spray in a holster. In a letter to the Justice
Department that was admitted into evidence, Appellant acknowledged that both
the truck and the weapon were his.
After Appellant was charged with burglary of a habitation, he was placed
on a bond on August 26, 2011. As a condition of his bond, he was ordered not to
contact Complainant or any of her family members. He was also prohibited from
going within 1,000 feet of any “exclusion zones,” which were areas in which
Complainant and her family members lived, worked, or, in the case of her
children, went to school. Court officials repeatedly informed Appellant about the
bond requirements in detail. One exclusion zone was a location described as the
Children’s Courtyard, where Complainant’s children went to school.
On October 6, 2011, senior court officer Mark Tittle received a notice of a
violation of that exclusion zone. Only two days earlier, Appellant had called Lisa
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Hunt, the probation officer assigned to monitor Appellant’s bond, and had
announced that he was going to violate an exclusion zone. When Hunt informed
Appellant that an arrest warrant would issue for him if he violated an exclusion
zone, Appellant responded, “Good, I’ll have my mom ready with the shotgun.”
When Tittle confronted Appellant about the shotgun remark, Appellant admitted
making it. Tittle described Appellant as irrational and angry. Tittle said Appellant
admitted already having violated exclusion zones.
The director of the Children’s Courtyard testified that she was working on
October 6, 2011. She said Appellant came into the building, asked if his children
were there and if they were okay, and then left. The director said she was aware
Appellant was ordered not to be in the building, so she immediately called
Complainant.
Appellant was convicted of the offense of burglary of a habitation with
intent to commit an assault in September 2012. All but one of the letters in
State’s Exhibit 6 were written after Appellant’s conviction in September 2012 until
the end of December 2012. Complainant said she did not count the number of
letters, but she described them as “pages and pages and pages and pages.”
She added, “I was getting them like every day, sometimes two, three letters a
day.” Complainant said Appellant was mad at her because she had testified
against him at the trial.
On an envelope of a September 25, 2012 letter, Appellant wrote, “I have
washed my hands of you and this tragedy.” However, Appellant signed an
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October 29, 2012 letter, “Forever your loving husband and eternal companion.”
Complainant said that concerned her because Appellant did not recognize they
were divorced. Complainant said the letter made her very afraid “[b]ecause he
[thought] he has some sort of claim on me, some sort of right to me . . . .”
In a December 7, 2012 letter, notwithstanding the fact they were divorced,
Appellant addressed it to “[m]y lovely wife”; in it, Appellant wrote that
Complainant had betrayed her family and marriage. In the last paragraph,
Appellant wrote that he needed Complainant’s love; Complainant said this
concerned her because she thought he would come straight to her once he got
out of prison. Complainant thought Appellant was supposed to be paroled on
January 4, 2013. Complainant was also anxious because Appellant was angry at
her and did not think he had done anything wrong.
Regarding Appellant’s violations of the exclusion zones in October 2011,
Complainant said she received a phone call about Appellant’s violating the
exclusion zones, and she feared Appellant was going after her family. Because
she was out of town at the time and unable to help, this added to her
apprehension.
In an October 27, 2012 letter, Appellant wrote, “[Complainant], I will protect
you if you work with me.” Appellant signed the letter, “See ya January 4th, 2013.
Love you!” Complainant was worried because Appellant was getting out and
coming to see her, and she did not know who was going to protect her. In an
October 27, 2012 letter addressed to her two children, Appellant wrote, “Good
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news. I will return to your world not later than January 4, 2013.” Complainant
was frightened that Appellant was going to take her children. In the letter,
Appellant told the children that he was working undercover for the government
and that was the reason he was in jail.
In an October 29, 2012 letter, Appellant wrote, “[Y]ou made me a convicted
felon on 9/19/12. Great day in my life!” Complainant said Appellant was blaming
her for his conviction and was not accepting any responsibility for what he had
done to her brother when he broke into her home, which made her uneasy.
On October 28, 2012, Appellant wrote Complainant’s son. In the letter,
Appellant said, “I don’t know exactly when I will see you. I’m still in a little
danger. There is a judge, prosecutor and sheriff that is going to be very mad at
me soon. It should be no later than January 4, 2013. See you soon.”
In a November 4, 2012 letter to Complainant, Appellant wrote, “I have
given you ample opportunity to do the right thing and have compassion on your
children, and you have refused!” He also wrote, “I deserve to have a loving
companion and family, and I will have it.”
Complainant said the manner in which Appellant jumped back and forth in
his letters scared her. Complainant said she was afraid Appellant would hurt her
bodily or kill her if he was released. She testified that was what Appellant’s
letters were telling her. Complainant said the lack of a direct threat to kill her was
what made the letters scary; “Because they’re just all veiled threats, and he just
keeps going back and forth from hating me, to loving me, to eternity, to not even
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recognizing the divorce. It’s just scary.” She said she was afraid Appellant was
never going to let her go.
In a December 3, 2012 letter, Appellant wrote, “I’m deeply troubled and
saddened by how bitter, coldhearted and evil you have become.” Appellant then
told Complainant that he had instructed his attorney to file a motion in family
court and gave Complainant until December 9, 2012, to respond to him in
person, which, contextually, meant visiting him in jail.
In another letter, dated December 6, 2012, addressed to Appellant’s
brothers but sent to Complainant, Appellant wrote, “I am done trying to get
through to her and trying to protect her. There needs to be accountability for
this. . . .” Complainant said Appellant’s wanting to hold her accountable was a
very common theme.
In another letter, Appellant wrote Complainant, “If there are [in]discretions
physically that you have concealed in our marriage and separation, acknowledge
them to me and get over it. We are still united under the law of Israel.” He
continued, “I can pronounce you clean as my wife and invite you to come unto
me with open arms and in unconditional love.” He added, “You are my queen of
Israel, and I am your warrior king.” Appellant ended the letter, “Your husband
and friend, Kevin Roy Beckstrand.” Appellant, in the first part of the letter,
referred to himself “[a]s your former husband.” Complainant described his letter
as crazy.
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In a December 9, 2012 letter to Complainant, Appellant started by telling
Complainant that he loved her and wrote, “And I’m so proud of you and your
strength and endurance through this separation.” In the next paragraph,
Appellant wrote, “I need you to be submissive.” Complainant said she was
concerned because Appellant wanted control of her and did not recognize the
divorce. Appellant instructed Complainant to thank her brother for taking a
beating on behalf of the family. Complainant explained that because Appellant
wanted to thank her brother for taking a beating at Appellant’s hands, she was
placed in fear of bodily injury because Appellant thought her brother deserved to
get beaten. She said that in this manner, Appellant was showing he was violent,
and he made her fear for herself. Appellant ended the letter, “Love always, your
king and baby daddy, Roy.”
In another letter dated December 9, 2012, addressed to Complainant’s son
but sent to Complainant’s address, Complainant said Appellant considered her
son to be Appellant’s unborn twin, and he thought they would, therefore, be
connected forever. Complainant said she was afraid for her son and for herself.
She wondered what Appellant would do to her to get to her son.
On December 11, 2012, Appellant sent Complainant hair and a wire
scorpion. Complainant said the scorpion was a threat. “I mean, what is a
scorpion other than a death threat?”
Outside the presence of the jury, the trial judge warned Appellant that the
bailiff had informed him that Appellant was still trying to communicate with
13
Complainant while she was on the witness stand and instructed him to stop it.
The judge said, “You need to control yourself. The jury is watching you.”
Discussion
In his brief, Appellant argues there were many inferences that were not
inculpatory that could have been drawn from the evidence. We must, however,
presume that the factfinder resolved any conflicting inferences in favor of the
verdict and defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Dobbs, 434 S.W.3d at 170. When viewing the evidence in the light most
favorable to the verdict, the evidence shows that Appellant engaged in a scheme
or course of conduct on more than one occasion, as set out in the indictment,
directed specifically at Complainant, his former wife and the person whom he
blamed for his burglary conviction, to intimidate her into submitting to some sort
of reconciliation through violence, through threats of violence, and through a total
disregard of any boundaries—Complainant’s or, for that matter, the trial court’s—
which (1) Appellant knew or reasonably believed Complainant would regard as
threatening bodily injury or death, (2) which caused Complainant to be placed in
fear of bodily injury or death, and (3) which would have caused a reasonable
person to fear bodily injury or death. We hold that the necessary inferences were
reasonable based upon the cumulative force of the evidence. See Sorrells, 343
S.W.3d at 155; see also Temple, 390 S.W.3d at 360. From these facts, we hold
that a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
14
Having found the evidence sufficient, we overrule Appellant’s second
issue.
Failure to Recuse
In Appellant’s first issue, he contends the presiding judge for the Eighth
Administrative Judicial Region, Judge Jeff Walker, erred by denying his motion to
recuse Judge Ruben Gonzalez Jr., the presiding judge of the 432nd District
Court, because Judge Gonzalez was biased against Appellant.
Appellant filed a motion to recuse Judge Gonzalez on the grounds that (1)
Judge Gonzalez had a personal bias or prejudice concerning Appellant, (2)
Judge Gonzalez had personal knowledge of Appellant’s prior mental health
issues which would prejudice his rulings, and (3) Judge Gonzalez’s previous
dealings with Appellant had resulted in his having a bias against Appellant.
Appellant’s written motion did not articulate the factual bases for any of his
allegations. 3
3
Specifically, in Appellant’s motion to recuse, he alleged:
II.
The impartiality of the Honorable Ruben Gonzale[z] might
reasonably be questioned. Defendant currently has a case pending
before the 2nd Court of Appeals in which he was convicted in this
court. Defendant questions the Judge’s ability to separate issues
previously litigated from those currently on trial.
III.
The Honorable Ruben Gonzale[z] has a personal bias or
prejudice concerning a party to this case. The Judge has personal
15
Judge Gonzalez declined to recuse himself and referred Appellant’s
motion to the administrative judge of the judicial region, Judge Walker, as
required under rule 18a of the rules of civil procedure. See Tex. R. Civ. P.
18a(f)(1)(B). Judge Walker presided over the hearing on Appellant’s motion to
recuse on May 24, 2013, as provided by the statute rule. See Tex. R. Civ. P.
18a(g)(1).
Before addressing the merits of Appellant’s contention, we first determine
the scope of the record we will consider in conjunction with Appellant’s
complaints.
State’s Motion to Strike Exhibits Attached to Appellant’s Brief
In conjunction with Appellant’s recusal argument, he attached to his brief
selected pages from the reporter’s record of his earlier burglary trial (Exhibit A)
and selected portions of his brief on the merits in his earlier burglary appeal
knowledge of Defendant’s prior mental health issues which would
prejudice rulings resulting in Defendant not receiving a fair trial. In
addition, the Judge’s previous dealings with Defendant has resulted
in the Court having a bias against Defendant.
Appellant was relying on subsections (b)(1), (2), and (3) of rule 18b of the Texas
Rules of Civil Procedure. See Tex. R. Civ. P. 18b(b)(1) (“the judge’s impartiality
might reasonably be questioned”), (b)(2) (“the judge has a personal bias or
prejudice concerning the subject matter or a party”), (b)(3) (“the judge has
personal knowledge of disputed evidentiary facts concerning the proceeding”);
see also Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (holding
procedure for recusal in criminal cases is controlled by rule 18a of the Texas
Rules of Civil Procedure); see also Tex. R. Civ. P. 18a(a)(2) (incorporating the
grounds listed in rule 18b).
16
(Exhibit B). Appellant asks this court to take judicial notice of the trial record and
appellate brief in the earlier burglary case. Appellant correctly notes that an
appellate court can take judicial notice of its own records in the same or related
proceedings involving the same or nearly the same parties. See Turner v. State,
733 S.W.2d 218, 223 (Tex. Crim. App. 1987).
However, the State filed a motion to strike Appellant’s Exhibits A and B. It
argues that even though a trial court may take judicial notice of its own records, it
cannot consider testimony from a previous trial unless the proponent of that
testimony admits it into evidence at the subsequent proceeding. See Davis v.
State, 293 S.W.3d 794, 797 (Tex. App.—Waco 2009, no pet.). In this case,
Judge Walker told Appellant that he knew nothing about the earlier burglary
case, and Judge Walker agreed to take judicial notice only of the fact that
Appellant had been convicted in a previous case at which Judge Gonzalez
presided. Judge Walker did not take judicial notice of the testimony from the
prior trial or of any appellate brief Appellant had filed in conjunction with his prior
conviction, and neither the record of the prior trial nor Appellant’s appellate brief
were admitted into evidence during the recusal hearing.
Appellate courts generally review a trial court’s ruling in light of the
arguments, information, and evidence that was available to the trial court at the
time it ruled. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003)
(stating standard in context of admission or exclusion of evidence); Orsag v.
State, 312 S.W.3d 105, 109 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)
17
(stating standard in context of ruling on a motion to suppress). Because Exhibits
A and B were not before Judge Walker when he ruled, we grant the State’s
motion to strike them from Appellant’s brief. For the same reasons, we decline to
take judicial notice of our own records of the prior appeal. To the extent
Appellant, in his brief, relies upon Exhibits A and B, we cannot consider
Appellant’s assertions because they are not supported or found in the record that
was before Judge Walker. See Turner, 733 S.W.2d at 223.
Appellant’s Motion to Recuse
Appellant testified at the hearing. He believed that Judge Gonzalez was
biased against him because the judge had ordered him to undergo two
competency evaluations and because the judge had not granted Appellant’s pro
se motion for an appeal bond after his conviction in the first case. Appellant also
believed that he had not received a fair trial because he “was entitled to certain
affirmative defenses that [Judge Gonzalez] actually denied” during his first trial.
Appellant did not provide any details about that ruling or any other rulings Judge
Gonzalez had made during the burglary trial. As noted earlier, Judge Walker did
not have before him the record from the earlier trial or Appellant’s appellate brief
attacking that conviction.
On cross-examination, the State established that Appellant’s own counsel
had requested at least one of the competency examinations, that Appellant had
actually written Judge Gonzalez thanking him for how he had conducted the trial,
that Judge Gonzalez had written Appellant in response to his pro se motion for
18
an appeal bond to inform him that he was not entitled to hybrid representation,
and that Appellant did not know whether his appointed counsel had ever
requested an appeal bond.
Judge Walker denied Appellant’s motion to recuse. Explaining his decision
from the bench, he said:
[Y]ou can bring the rulings of the judge into question if you go further
and show that bias or prejudice was the basis of the judge’s ruling.
You can’t go the other way around. You can’t go, [“]The judge ruled
this way or that way, and that is evidence of the judge’s bias.[”]
Doesn’t work.
Judge Walker commented further:
We’ve got [Appellant] feeling that the Judge is biased because he
ruled against him and may even have made errors in the law. I’m
not saying he did or didn’t. That’s not what I’m here for. That’s what
the Court of Appeals is here for. But a judge making errors in good
faith—that is, errors that are not based on bias or prejudice—cannot
be recused for making a good-faith bad judgment call.
Standard of Review
Rule 18a of the Texas Rules of Civil Procedure provides that the denial of
a motion to recuse after a hearing is reviewed for an abuse of discretion on
appeal from the final judgment. See Tex. R. Civ. P. 18a(j)(1)(A); see also Gaal v.
State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011) (“An appellate court should
not reverse a recusal judge whose ruling on the motion was within the zone of
reasonable disagreement.”). A trial court abuses its discretion when it acts
arbitrarily and unreasonably, without reference to the guiding rules or principles,
or when it misapplies the law to the established facts of the case. Kniatt v. State,
19
239 S.W.3d 910, 912 (Tex. App.—Waco 2007, no pet.) (op. on reh’g). The
reviewing court considers the totality of the evidence and information elicited at
the recusal hearing to see if the record reveals sufficient evidence to support the
recusal judge’s ruling that the trial judge was not biased. See Gaal, 332 S.W.3d
at 456.
Discussion
Judge Gonzalez’s involvement in prior competency proceedings is not a
basis for recusal. See Kniatt, 239 S.W.3d at 918 (quoting Liteky v. United States,
510 U.S. 540, 555–56, 114 S. Ct. 1147, 1157 (1994)). When the alleged bias is
not from an extrajudicial source, the only proper basis for recusal based on bias
is a bias indicating a high degree of favoritism or antagonism. Roman v. State,
145 S.W.3d 316, 322 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
Appellant has made no showing how Judge Gonzalez’s participation in and
knowledge of the competency proceedings in the prior case translated into a
deep-seated favoritism or antagonism that would make fair judgment impossible
in this case. See Kniatt, 239 S.W.3d at 918.
Regarding Judge Gonzalez’s denial of certain defensive issues in
Appellant’s previous trial, adverse rulings are not, standing alone, a basis for
recusal; rather, adverse rulings are remedied by assigning error, not by filing
motions to recuse. See Cumpian v. State, 812 S.W.2d 88, 91 (Tex. App.—San
Antonio 1991, no pet.); see also Tex. R. Civ. P. 18a(a)(3). Appellant assigned
error in his earlier case based on legal error and was vindicated. Beckstrand v.
20
State, No. 02-12-00480-CR, 2015 WL 1544077, at *10 (Tex. App.—Fort Worth
Apr. 2, 2015, no pet.) (mem. op., not designated for publication).
Regarding Appellant’s complaint that Judge Gonzalez denied an appeal
bond in the prior case, Judge Gonzalez did not refuse to set an appeal bond;
rather, he refused to consider a pro se motion while Appellant was represented
by counsel. Appellant was not entitled to hybrid representation. See Robinson v.
State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). Although Appellant testified
that trial counsel had already informed him that she no longer represented him
after his sentencing, the record does not show that he made any efforts to correct
Judge Gonzalez of his misunderstanding. The record is not clear on what efforts,
if any, Appellant made to have his appellate counsel pursue an appeal bond. It is
also not clear what effect, if any, the stalking indictment and the $25,000
appearance bond set on it had on appellate counsel’s handling of the appeal
bond on the previous conviction.
Appellant argues that a comment by Judge Gonzalez during the previous
trial provides actual evidence of “‘aversion, hostility or disposition of a kind that a
fair-minded person could not set aside when judging the dispute.’” See Gaal,
332 S.W.3d at 453 (quoting Liteky, 510 U.S. at 558, 114 S. Ct. at 1158
(Kennedy, J., concurring)). Judge Gonzalez’s remark, however, was neither
introduced into evidence nor referred to by any party during the recusal hearing.
Additionally, although Appellant in his brief sets forth Judge Gonzalez’s
comment, he does not provide any information regarding what prompted the
21
comment; consequently, whether the statement reflects extreme animosity or a
judge’s forceful effort to prevent Appellant from further disrupting the courtroom is
not possible. “‘[E]xpressions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and women’ may
display, do not establish bias or partiality.” Id. at 454 (quoting Liteky, 510 U.S. at
555–56, 114 S. Ct. at 1157). Consequently, a trial judge’s ordinary efforts to
maintain courtroom order and decorum do not render the judge subject to
recusal. Id. at 454. More importantly, at the hearing, Appellant failed to show
that a “fair-minded person” could not set aside whatever animosity or hostility the
comment might have reflected.
Appellant also points to various rulings Judge Gonzalez purportedly made
erroneously during the stalking trial as further evidence that Judge Gonzalez
could not set aside the alleged hostility he had developed toward Appellant
during the earlier trial. Judge Walker conducted the hearing on the motion to
recuse before the stalking trial. Consequently, those events were not before
Judge Walker when he ruled. See Dragoo, 96 S.W.3d at 313; Orsag, 312
S.W.3d at 109. Judge Walker could not have abused his discretion by failing to
consider events that had not yet even occurred.
Based upon Appellant’s motion and upon the evidence presented at the
recusal hearing, we hold Judge Walker did not abuse his discretion by denying
Appellant’s motion to recuse. See Tex. R. Civ. P. 18a(j)(1)(A). The ruling was
neither arbitrary nor unreasonable, is supported in the guiding rules or principles,
22
and correctly applied the law to the established facts of the case. See Kniatt,
239 S.W.3d at 912.
Finding no abuse of discretion, we overrule Appellant’s first issue.
Mark Tittle’s Testimony
In his third issue, Appellant argues that the trial court reversibly erred by
allowing Mark Tittle to testify as to statements Appellant made to Lisa Hunt.
Appellant contends the statements were inadmissible hearsay, were not
admissible under the “state-of-mind” exception to the hearsay rule, and were not
otherwise admissible under the rule of optional completeness, which was the
basis on which the trial court ultimately admitted Hunt’s statements to Tittle. See
Tex. R. Evid. 107, 801(d), 803(3). Specifically, Tittle testified that Hunt told him
that Appellant was going to violate the exclusion zone and that after Hunt had
explained to him what would happen if he violated the exclusion zone, Appellant
said his mother would be ready with a shotgun. Tittle explained that Appellant
had to wear a GPS ankle monitor so the probation department could see where
he was. Tittle further explained that the probation department then set out zones
around certain areas of town that were “lined out by GPS,” so that if Appellant
entered into one of these zones, Appellant’s ankle monitor would notify the
probation department that Appellant was in a prohibited area. Tittle said, “An
exclusion zone is essentially just an area where [Appellant was] forbidden to go.”
For the reasons set out below, we hold that error was not preserved. The
following testimony by Tittle came in without objection:
23
Q. (BY [PROSECUTOR:]) What information were you provided on
October the 4th that led you to have concern that more than one
person was in danger besides law enforcement?
A. [Tittle:] The Defendant called his probation officer, Lisa Hunt,
and spoke with her. He told her that he was in his doctor’s office,
and he was saying that he was going to violate the exclusion zone.
Q. Let me stop you. Does that cause you concern?
A. Yes.
Q. Why?
A. Well, the exclusion zones set by the Court are intended to protect
the safety of the injured party, her family, ensure their safety. And
him saying that he’s going to violate one of those exclusion zones
indicates he is disregarding the conditions set by the Court to protect
their safety.
Q. The information wasn’t, I miss my kids, I want to go see my child;
it was I’m going to go violate the exclusion zone?
A. Yes.
Q. The exclusion loan—the exclusion zone violation, was it just at
the location where the kids were?
A. No.
Q. It’s numerous?
A. Yes.
Q. Matter of fact, on October 4th, you’re given information about his
statement about a shotgun?
A. That’s when I got the information about the shotgun, yes.
Q. The first time?
A. Yes.
24
Q. What exactly were you told?
A. When Lisa Hunt told him that a warrant would be issued if he
violated his exclusion zone, [Appellant] stated, [“]I don’t have to
answer the door. Will they knock down the door and pull me out
kicking and screaming?[”]
His officer advised, [“]They may because if you violate the exclusion
zone, there will be a warrant.[”]
The Defendant said, [“]Good, I’ll have my mom ready with the
shotgun,[”] and he left.
Additionally, Tittle testified without objection that he had been involved in
conversations with Appellant himself during which Appellant made similar
statements:
Q. [By the prosecutor:4] And why were you monitoring his behavior
that day?
A. [Tittle:] I had a phone call with [Appellant] earlier in that day in—
in which it was discussed that he had a shotgun and that he and his
family intended to protect themselves if police came to arrest him.
Q. Basically a threat to law enforcement?
A. Yes.
Q. And you took that seriously?
A. Given the demeanor that he had when I spoke with him on the
3rd and the—the tone that he—he conveyed to me during my
conversation with him on the 6th, I was afraid that he could
potentially hurt anyone that disagreed with him.
4
The reporter’s record identifies the questioner as defense counsel.
However, Tittle, who was called by the State, was on redirect examination, and
contextually it is clear that the questioner was the prosecutor.
25
Q. So when you were monitoring his travels that day, it wasn’t
simply he’s going to go see his kids, but could he go see somebody
else?
A. I was concerned he was going to hurt someone, period.
Q. And he confirmed for you the statement about having a shotgun
and willing to use it?
A. Yes.[5]
Tittle also testified that Appellant had acknowledged to Tittle himself that
Appellant had violated his exclusion zones:
I told him that he needed to come in. We talked about his exclusion
zones. He had—he told me he had already violated them, he had
several things he was going to do that day, and then he would come
in and see me after he had done what all he wanted to do.
To properly preserve error, a party must object each time allegedly
inadmissible evidence is offered. Tex. R. App. P. 33.1(a); Martinez v. State, 98
S.W.3d 189, 193 (Tex. Crim. App. 2003). Additionally, it is well settled that a trial
court does not reversibly err by admitting evidence over an objection where the
same evidence is admitted elsewhere during trial without objection.
Gurrussqueita v. State, 244 S.W.3d 450, 455 (Tex. App.—Fort Worth 2007, pet.
ref’d). For all the above reasons, we hold Appellant did not preserve error.
Having ruled Appellant’s third issue was not preserved, we overrule it.
5
During the trial on punishment, apparently in an attempt to attenuate the
severity of his statements to Hunt and Tittle, Appellant explained that the shotgun
he was referring to was actually nothing more than a Super Soaker filled with
lemon juice and cayenne pepper.
26
Admission of Appellant’s Letter to the Trial Judge
In his fourth issue, Appellant contends the trial court erred by admitting
during the punishment phase of trial a letter Appellant wrote to the trial judge.
Appellant argues that most of the letter was irrelevant and, therefore,
inadmissible; that to the extent it had any probative value, its probative value was
substantially outweighed by the danger of unfair prejudice to Appellant and by
the risks of confusion of the issues and misleading the jury; and that the trial
court’s error had a substantial and injurious influence in determining the jury’s
decision on punishment. See Tex. R. Evid. 402, 403; Tex. R. App. P. 44.2(b).
The letter about which Appellant complains provides as follows:6
To: hon. Judge Ruben Gonzalez January 14, 2013
From: Kevin Roy Beckstrand CEO
KROYBECK WEALTH EDU. PARTNERSHIP
And your favorite recent defendant!
Hello Sir,
I has been awhile since I wrote you a personal letter. Your
treatment of [my attorney] at trial really made me angry. Even
though she was ill prepared and her personal hygiene the 1st day of
trial was atrocious, she did not deserve your and [the prosecutor’s]
condescension! I did however. I realize that you did exactly what I
asked you to do in the personal letters I wrote you in Sept. and Oct.
of 2011.
My beloved was protected from her FOOLISHNESS and
STUPIDITY. Thank you for allowing me to be a man and the ability
6
We have removed the names of the persons Appellant identifies in his
letter and one anti-Semitic slur. We have not otherwise attempted to correct
Appellant’s spelling, grammar, or punctuation.
27
to display to her TRUE unconditional love. SHE DOES NOT
DESERVE!
When I signed the 2nd Bond paperwork, I put that I was
employed, but enlisting in GOV’T SERVICE in honor of my FATHER
[name deleted]. It has been a true honor working and learning from
you how our GREAT JUDICIAL SYSTEM works. T.C. is in need of a
huge WHITEWASH. One of my favorite songs, a part of my life
training with [name deleted] a Criminal Atty in Dallas is “GET OVER
IT” by the Eagles. A line is “LET’S KILL ALL LAWYERS KILL THEM
TONIGHT” Not a bad thought. Can we start with [the prosecutor]?
Lol! I know he has a job to do, but he is a real prick! He’d be better
suited as a Def. Atty. Thank him for me. I’ve got my eye on him real
close. Appreciation to him is in order.
I’m done polishing your balls. For the business at hand.
[Another defendant I know] is a good man and has employment with
me upon his completion of SAFEP. I will hold him accountable and
ensure he is no longer an IDIOT DRUG ADDICT! He is in your
Court.
I have been summoned to family Court 360th on Jan. 17,
2013. I DON’T HAVE THE FUNDS FOR ANOTHER BOND. The
papers I was served with from the 360th request my bond be lifted. I
have written my response already and mailed it to the Atty.
[Complainant] retained for us, [name deleted] in Colleyville, TX.
I need to be released so I can get a hold of my H.S. Sweetie
[name deleted]. We spoke while you had me committed to NTSH.
She said she loved me. Her and I had lunch a couple times after the
separation and planned to get back together once the divorce was
final. I signed my Divorce under Duress. I do not want to go to
family court and give in to [Complainant] under duress. I need [my
H.S. Sweetie] by my side. Her name is [name deleted] of Dallas.
She has worked at Champs Rest. In Addison TX for about 12 yrs. If
you remember the Wonder Years on TV in the 90’s. She is my
WINNEE COOPER! I need to see her. She’s scared of
[Complainant]!
Will you release me on Tues. or Wed. and appoint Cpl. [name
deleted] to be my deputy guard and protector? Will you also allow
me to have my STAR 9 mm back? I think I displayed how to
properly handle a firearm in my case. I DID NOT BRING IT INTO
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THE HOME and I informed, for the safety of everyone, when FWPD
arrived I had a pistol in my truck.
I am looking forward to a good friendship and association with
your Court, to restore the Disgrace my family brought to it.
Also, I want to testify against my nephew [name deleted]. He
raped a 12 yr old girl. He is in the POD across from 59C where I
am. He had the nerve to call his aunt a [anti-Semitic slur] to my
face. He must be affiliated with the ARYANS. What a retarded
IDIOT! He also told Ofc. [name deleted] I was a piece of shit and I
deserved to get my ass beat! He must of SNITCHED I’M a FED.
ASSET and now official agent. I was assaulted and beat down
12/7/13. Cpl. [name deleted] is my witness to the GANG HIT by the
AB’s. [Name deleted] warned me! Once he went to bed, I was a
Target.
Sorry I missed you on Friday 1/11/13.
Regards,
Kevin – ROY my friends call me.
In a criminal case, after a defendant has been found guilty, “evidence may
be offered by the state . . . as to any matter the court deems relevant to
sentencing.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp.
2014). “Determining what is relevant then should be a question of what is helpful
to the jury in determining the appropriate sentence for a particular defendant in a
particular case.” Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999).
During the punishment phase of trial, Appellant testified and asked for
probation. On cross-examination, the State introduced the letter over Appellant’s
objection. Appellant acknowledged he wrote the letter after having been
convicted of burglary of a habitation and after having been indicted for stalking.
29
The trial court, when admitting the letter, said it was relevant and should be
considered by the jury for the purpose of rendering a fair and just punishment.
In its brief, the State argues that the letter’s tone and cavalier attitude
toward the court would help the jury when determining punishment. We agree.
The letter is relevant because it illustrates Appellant’s mindset without any filters;
Appellant expressed himself with a frankness that one would not expect on the
witness stand and which the jury deserved to hear when assessing his
punishment. See Tex. R. Evid. 401. As the letter came straight from Appellant’s
pen, there was prejudice but no unfair prejudice. See Tex. R. Evid. 403; see also
McCallum v. State, 311 S.W.3d 9, 15 (Tex. App.—San Antonio 2010, no pet.)
(noting difference between prejudicial and unfairly prejudicial evidence; stating
unfairly prejudicial evidence has an undue tendency to suggest a decision on an
improper basis, commonly, though not necessarily, an emotional one).
Appellant’s letter went to the heart of whether the jurors could trust Appellant if
they placed him on community supervision or, once released from prison,
whether Appellant would conduct himself appropriately.
Finding no error, we overrule Appellant’s fourth issue.
Whether Appellant’s Punishment Violates the Eighth Amendment’s Ban on
Cruel and Unusual Punishment.
In his fifth issue, Appellant argues that his sentence was disproportionate
to the offense he committed and violates the Eighth Amendment’s prohibition
against the infliction of cruel and unusual punishments. U.S. Const. amend. VIII.
30
Appellant notes that the maximum punishment he could have received was ten
years’ imprisonment and a $10,000 fine. See Tex. Penal Code Ann. § 12.34.
The jury assessed his punishment at ten years’ imprisonment and a fine of
$5,000. Appellant did not object to his punishment and sentence when they were
announced at trial. Appellant did not file a motion for new trial in which he raised
this complaint. Appellant failed to preserve error. See Burt v. State, 396 S.W.3d
574, 577 (Tex. Crim. App. 2013); Kim v. State, 283 S.W.3d 473, 475 (Tex.
App.—Fort Worth 2009, pet. ref’d). We overrule Appellant’s fifth issue for lack of
preservation.
Conclusion
Having overruled all of Appellant’s issues, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 10, 2015
31