Steele, Jeffrey Allen v. State ( 2013 )

MODIFY and AFFIRM; and Opinion Filed August 20, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00378-CR
JEFFREY ALLEN STEELE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-00780-R
MEMORANDUM OPINION
Before Justices O’Neill, Francis, and Fillmore
Opinion by Justice O’Neill
A jury convicted appellant Jeffrey Allen Steele of entering a habitation and committing
aggravated assault with a deadly weapon. After finding the enhancement paragraph true, the jury
sentenced him to life imprisonment. On appeal, he argues (1) the trial court abused its discretion
by admitting extraneous offense evidence; (2) the trial court abused its discretion by admitting
State’s Exhibit 104 because the rule of optional completeness was not invoked; (3) the evidence
is insufficient to support the court-ordered reimbursement of attorney’s fees; and (4) the
evidence is insufficient to support the trial court’s order for appellant to pay $244 in court costs.
As modified, we affirm the trial court’s judgment.
Background
On May 4, 2011, appellant introduced himself to Carrie Sport as an old friend of her
husband and told her he lived down the street. Appellant asked if he could borrow her cell
phone. Carrie went inside to get it and brought it back outside. She heard appellant tell the
person on the phone his last name was Steele.
The next day, Carrie returned home around 4:45pm with her eighteen-month-old son.
When she entered her home, she noticed a huge hole in the ceiling and some of her lingerie lying
on the couch. She then saw appellant walking down the hallway. She recognized him from her
interactions with him the previous day. Appellant asked why she was home early and asked
where she kept any money. She said she did not keep any money in the house.
Carrie tried to run away with her son, but appellant grabbed them both and forced them
into the bathroom. Appellant also put a knife or box cutter to her throat and threatened to kill
them if they tried to leave the bathroom. Carrie then heard a splashing sound, and she feared
appellant was pouring gasoline around the house. Her fears were confirmed when she tried to
run with her child out of the bathroom, smelled the gasoline, and saw her couch on fire.
Appellant then hit her in the face, which caused her to slip and fall. She burned her arm
on the couch. She tried to get up and run away, and she almost made it to the backyard before
appellant grabbed her again and began choking her. Carrie testified she lost consciousness.
During the time she was unconscious, her neighbor, Jake Joplin, noticed flames coming
from the house. When he saw Carrie, he assumed she was dead, but picked up her son and
carried him to safety. Then he returned to Carrie, and appellant helped move her. When Carrie
began to wake up, appellant fled the scene. The first words out of Carrie’s mouth when she
came to was that Jeff Steele tried to kill her and that he set her house on fire. She repeated this to
several other people.
Carrie suffered a severely swollen jaw, a third degree burn to her arm, bruises on her
neck, and scratches and abrasions to her body. Her son suffered a cut on his chin where
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appellant cut him with a knife or box cutter in an attempt to intimidate Carrie before he set the
house on fire.
Carrie later identified appellant in a photo array. Appellant was arrested the following
day in his home. He pleaded not guilty to the charges, but a jury convicted him of entering a
habitation and committing aggravated assault with a deadly weapon. This appeal followed.
Admission of Extraneous Offense
In his first issue, appellant argues the trial court abused its discretion by allowing David
Estefano, a State’s witness, to testify that appellant appeared to be either high on drugs or
coming off a high on the morning of the attack. He objected that such information was
irrelevant, extraneous, and inadmissible under rule of evidence 403. The State responded the
testimony was relevant and “same transaction contextual evidence.” Further, the State argues
harm, if any, did not substantially outweigh its probative value.
We review the admissibility of evidence under an abuse of discretion standard. Walters
v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We will conclude a trial court abused its
discretion if its ruling lies “outside the zone of reasonable disagreement.” Id.
Generally evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person to show action in conformity therewith. TEX. R. EVID. 404(b). Under
certain circumstances, evidence may provide “same transaction contextual evidence.” “Same
transaction contextual evidence” refers to those events and circumstances that are intertwined,
inseparable parts of an event that, if viewed in isolation, would make no sense at all. See
Delgado v. State, 235 S.W.3d 244, 253 (Tex. Crim. App. 2007); see also Thomas v. State, No.
05-07-00266-CR, 2008 WL 3906393, at *4 (Tex. App.—Dallas Aug. 26, 2008, pet. ref’d) (not
designated for publication).
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Such evidence is admitted to show the context in which the crime occurred “under the
reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred
immediately prior to and subsequent to the commission of that act so they may realistically
evaluate the evidence.” Delgado, 235 S.W.3d at 253 n.36 (citing Albrecht v. State, 486 S.W.2d
97, 100 (Tex. Crim. App. 1972)). However, only if the facts and circumstances of the instant
offense would make little or no sense without also bringing in the same transaction contextual
evidence should that evidence be admitted. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App.
1993).
Courts have applied a two-part test in determining the admissibility of same transaction
contextual evidence. See Mayes v. State, 816 S.W.2d 79, 84–87 (Tex. Crim. App. 1991). The
first prong is to determine whether the evidence is relevant under rule of evidence 401. Id. at 85;
Rogers, 853 S.W.2d at 32. “Relevant evidence” means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence. TEX. R. EVID. 401.
Appellant argues whether or not he appeared high at 8 a.m. when the offense took place
around 5 p.m. was not relevant because there was no evidence linking him to the use of drugs
during the offense or that his motive to commit the offense was drug-related. We disagree. As
noted, the State cannot try a case in a vacuum, and evidence that establishes the context of an
offense is relevant. Delgado, 235 S.W.3d at 253 n.36.
Estefano testified he had a long-standing relationship with appellant and recognized that
on the morning of the offense appellant was not his “normal” self, and it seemed like he was
either high on drugs or coming down from a high. Appellant also asked Estefano for money.
When appellant later broke into Carrie’s house, she testified appellant asked her for money.
Thus, the trial court’s decision to admit the testimony fell within the zone of reasonable
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disagreement that it was more probable than not that appellant broke into Carrie’s house looking
for money to buy drugs.
The next step under the Mayes test is whether the background evidence at issue is
admissible as an exception under rule of evidence 404(b). See Rogers, 853 S.W.2d at 33.
Admission of same transaction contextual evidence is such an exception. Id. Appellant argues
the State could have easily avoided any questions regarding his behavior on the morning of the
attack. The State responds the testimony actually assisted the defense’s theory of appellant’s
presence at the scene.
The evidence showed that when Jake Joplin saw the house on fire and tried to help
Carrie, appellant also helped move her. It was not until Carrie started to come to that appellant
fled the scene. Estefano testified that appellant told him the reason he left was because he had
drugs in his possession and did not want to get caught by the police. See, e.g., Slaughter v. State,
No. 14-05-00863-CR, 2006 WL 2805564, at *3 (Tex. App.—Houston [14th Dist.] Oct. 3, 2006,
no pet.) (mem. op., not designated for publication) (noting evidence of illegal drug possession
helped prove why defendant intentionally fled from an officer).
As argued by the State, appellant cannot have it both ways. Either the evidence showed
appellant was assisting Carrie and abruptly left because he possessed drugs he did not want the
police to discover, or he did not want Carrie to identify him as her attacker. Because appellant
appeared high earlier in the day, asked Estefano for money, and told Carrie he broke into her
house because he was looking for money, we conclude the evidence established an affirmative
link between his earlier condition and the offense rather than being mere background contextual
evidence. Accordingly, the evidence was admissible as an exception under rule 404(b).
Appellant’s first issue is overruled.
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Rule of Optional Completeness
In his second issue, appellant argues the trial court abused its discretion by admitting
State’s Exhibit No. 104, an audio recording of Carrie’s police statement, because the rule of
optional completeness was not invoked by the mere reference to her prior inconsistent
statements. 1 The State concedes the trial court erred in admitting Carrie’s statement in its
entirety, as the rule was not implicated because appellant never tried to admit any portion of it
into evidence. See Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004) (noting the
rule of optional completeness is not implicated until a party attempts to have a portion of a
statement “given into evidence”). However, the State argues such error does not require
reversal.
Appellant responds he was harmed by admission of the recording because the jury heard
Carrie tell her “sobbing and emotional” story for a second time, and it “improperly bolstered the
detective’s testimony. We cannot agree with appellant.
A violation of an evidentiary rule that results in the erroneous admission of evidence is
non-constitutional error. TEX. R. APP. P. 44.2(b); Jones v. State, 111 S.W.3d 600, 605 (Tex.
App.—Dallas 2003, pet. ref’d). We disregard all non-constitutional errors that do not affect the
appellant’s substantial rights. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). A
substantial right is affected when the error has a substantial and injurious effect or influence in
determining the jury’s verdict. Id.
The jury heard testimony from numerous witnesses, all of whom testified Carrie
unequivocally identified appellant as her attacker. Carrie herself identified appellant as her
attacker. Appellant himself admitted to Estefano he was in fact at her house on the day of the
1
Carrie testified appellant cut her son’s chin and hit her; however, when Detective Water’s was asked whether Carrie told him these details
in her original statement to him, he said she did not reveal either incident.
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attack. While appellant characterizes Carrie’s statement as “sobbing and emotional,” only during
a few minutes of the overall interview did Carrie sound emotional. For most of the interview,
she kept her composure and explained the attack. Moreover, she did not reveal any evidence that
was not already before the jury. Accordingly, we cannot conclude the admission of State’s
Exhibit 104 had a substantial and injurious effect or influence in determining the jury’s verdict.
Appellant’s second issue is overruled.
Reimbursement of Court-Ordered Attorney’s Fees
In his third issue, appellant argues the trial court erred by ordering him to pay $8,000 in
attorney’s fees because he was determined to be indigent, and the record does not establish any
material change in his financial circumstances. See TEX. CODE CRIM. PROC. ANN. art. 26.05(p)
(West Supp. 2006) (noting a defendant is presumed to remain indigent for the remainder of the
proceeding unless a material change in his financial circumstances occurs).
The State concedes no evidence was presented to the trial court establishing any change
in financial circumstances and agrees the judgment should be reformed to delete the ordered
$8,000 in attorney’s fees. Accordingly, we sustain appellant’s third issue and reform the
judgment to delete the ordered $8,000 in attorney’s fees.
Reimbursement of Court-Ordered Court Fees
In his fourth issue, appellant argues the evidence is insufficient to support an order
requiring him to pay $244 because the record does not contain a bill of costs and therefore, the
judgment should be reformed to delete this amount. Following submission of this case, we
ordered the Dallas County District Clerk to prepare and file a supplemental clerk’s record
containing a detailed itemization of the costs and fees assessed in this case along with an
explanation of any abbreviations used to define costs and fees. See TEX. CODE CRIM. PROC.
ANN. arts. 103.001, .006 (West 2006). The Dallas County District Clerk has complied with our
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order. Because the record now contains a bill of costs supporting the assessment of costs in the
judgment, we conclude appellant’s complaint is now moot. See Franklin v. State, No. 05-12-
00530-CR, 2013 WL 2446283, at *1 (Tex. App.—Dallas June 4, 2013, no pet.). Appellant’s
fourth issue is overruled.
Conclusion
We modify the trial court’s judgment to delete the $8,000 in court-ordered attorney’s
fees. As modified, we affirm the trial court’s judgment.
/Michael J. O'Neill/
MICHAEL J. O’NEILL
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
120378F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEFFREY ALLEN STEELE, Appellant On Appeal from the 265th Judicial District
Court, Dallas County, Texas
No. 05-12-00378-CR V. Trial Court Cause No. F11-00780-R.
Opinion delivered by Justice O’Neill,
THE STATE OF TEXAS, Appellee Justices Francis and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to delete the $8,000 in court-ordered attorney’s fees. As modified, the trial court’s judgment is
AFFIRMED.
Judgment entered this 20th day of August, 2013.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
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