




02-10-035-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO.  02-10-00035-CR
 
 



Clint Chad Jones


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
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FROM THE 432nd
District Court OF Tarrant COUNTY
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MEMORANDUM
OPINION[1]
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I. 
Introduction
          Appellant
Clint Chad Jones pleaded guilty to aggravated robbery with a deadly weapon, and
a jury assessed his punishment at ninety-nine years’ confinement.  Appellant
contends in five points that the jury should not have considered an extraneous
capital murder offense in assessing his punishment because the State failed to
prove the offense beyond a reasonable doubt, that the trial court abused its
discretion by overruling his objections to certain testimony and exhibits, and
that the trial court erred by ordering that his sentence run consecutively to
his sentence from a prior conviction.  We affirm.
II. 
Background
          Appellant
pleaded guilty to robbing a game room in Arlington, Texas.  During the
punishment phase of the trial, the State presented evidence of that aggravated
robbery and Appellant’s involvement in the kidnap and murder of his girlfriend,
Charlee Cobb.
          John
Borland testified that he was working the overnight shift at Kasey’s Korner in
Arlington on November 22, 2007 (Thanksgiving Day).  In the early morning hours,
Carmen Brown, a woman Borland recognized as a customer, approached the door,
and Borland unlocked the door for her to enter.  Borland testified that Brown
held the door open and that Appellant walked through the door carrying a
sawed-off shotgun.  Appellant took between four and five thousand dollars from
the safe and a handgun before he and Brown left the game room.  The manager of
Kasey’s Korner, Joe Davis, testified that a woman named Tracy Gandar later
approached him and told him she knew who had robbed the game room.  Law
enforcement personnel subsequently interviewed Gandar. 
          Gandar
testified that she lived in James Keisel’s house at 125 East Cober Drive in
November 2007.  Appellant lived there for about a week near Thanksgiving, and
Brown and Cobb moved in at the same time.  Gandar believed that Appellant was
dating both women. 
Gandar
testified that Appellant and Brown left the house for a while on Thanksgiving
morning and that they discussed the robbery they had committed when they
returned.  Gandar further testified that Appellant was upset with Cobb later
that day and walked through the house with a gun in one hand and a hatchet in
the other.  Gandar also testified that Appellant hog-tied Cobb with duct tape
in the living room, put a sock in her mouth, and put her into the trunk of the
blue Honda he was driving, saying that he had to kill her because she knew too
much about the game room robbery.  Gandar said that Cobb kicked her way out of
the trunk and made her way back into the house.  Cobb had taken the duct tape
off and was no longer bound, but Appellant put Cobb back into the blue Honda,
this time in the passenger seat.  Gandar testified that Appellant said he was
taking Cobb to her brother’s house, and he drove away with Cobb near midnight. 
Appellant
returned between two and three hours later and told Gandar that he “had to do
it.”  Gandar asked Appellant if he had killed Cobb, and he said that he had but
not to judge him.  The next day, Gandar left the house and went to the game
room Appellant had robbed.  She told Davis who had robbed the game room, and
she thereafter cooperated with the authorities.
Gandar
admitted that she was in jail for a misdemeanor at the time of trial, but she
said that she did not have any agreements with the State relating to her
testimony.  On cross-examination, Gandar admitted that she did not tell the
detective who interviewed her that Appellant had walked through the house with
a gun and a hatchet or that he had confessed to her, but she testified that she
was initially in shock and that her memory had become clearer over time. 
          The
jury also heard testimony that Grand Prairie police officers conducted
surveillance at the Cober Drive house two days after the robbery and observed
Appellant drive the blue Honda (which had been reported stolen) toward the
house and park in the driveway.  When the officers approached, Appellant
resisted but was arrested and placed in a patrol car.  Because the officers had
information about Cobb’s abduction, Sergeant John Shaw forcibly entered the
residence to look for her.[2]  Cobb was not in the
house, but Sergeant Shaw did recover a sawed-off shotgun.  Sergeant Gary Newton
looked in the trunk of the blue Honda.  Cobb was not in the trunk, but there
was a strip of duct tape in the trunk “that look[ed] like it had been wrapped
around something and pulled off.” The duct tape also had hair and leaves on
it.  Also in the trunk were pieces of a woman’s earrings.
          Donald
Summons lives near a field in Dallas that is less than a ten-minute drive from
the Cober Drive house.  He testified that he called 9-1-1 on December 8,
2007, after a neighbor’s dog found a decomposing human skull in the field.
Crime scene investigators searched the field and recovered a large number of
human bones, a knife that had been placed inside a nearby abandoned car, and
several items of women’s clothing.  One of the clothing items had visible duct
tape residue on it.  The investigators also recovered several sections of duct
tape; they were wrapped in a circular fashion and were consistent with having
been wrapped around a woman’s head.
          Dr.
Jill Urban, a deputy medical examiner for Dallas County, testified that she
conducted an autopsy of Cobb’s remains.[3]  Dr. Urban testified that
the cause of death was homicidal violence.  On cross-examination, Dr. Urban
testified that she could not give a precise date of death but that a November
22, 2007 date of death was consistent with her findings. 
Detective
Paul Ellzey is a homicide detective with the Dallas Police Department.  He
testified that the knife recovered from the abandoned car near Cobb’s body had
human blood on it and that it was from a butcher block set at Keisel’s house on
Cober Drive.  By interviewing Keisel, Detective Ellzey confirmed that the knife
was the same brand as that at Keisel’s house and that Keisel’s knife set was
missing one knife.  Keisel was initially a suspect in Cobb’s murder but
identified the missing knife as his.  Through his investigation, Detective
Ellzey confirmed that Cobb was last seen alive when she left Keisel’s house
with Appellant.
III. 
Punishment-Phase Extraneous Offense Evidence
          Appellant
contends in his first point that the State failed to prove the extraneous
offense of capital murder beyond a reasonable doubt.
A. 
Applicable Law
          The
admissibility of evidence at punishment is guided largely by article 37.07,
section 3 of the Texas Code of Criminal Procedure.  Haley v. State, 173
S.W.3d 510, 513 (Tex. Crim. App. 2005); see Tex. Code Crim. Proc. Ann. art.
37.07, § 3(a)(1) (West Supp. 2010).  Under that section, the prosecution may
offer evidence of an extraneous crime or bad act that is shown beyond a
reasonable doubt to have been committed by the defendant or for which he could
be held criminally responsible.  Tex. Code Crim. Proc. Ann. art. 37.07, §
3(a)(1); Haley, 173 S.W.3d at 515.  “Unlike the guilt-innocence phase,
the question at punishment is not whether the defendant has committed a crime,
but instead what sentence should be assessed.”  Haley, 173 S.W.3d at 515
(citing Sunbury v. State, 88 S.W.3d 229, 234 (Tex. Crim. App. 2002), and
Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)).  “Whereas
the guilt-innocence stage requires the jury to find the defendant guilty beyond
a reasonable doubt of each element of the offense, the punishment phase
requires the jury only find that these prior acts are attributable to the
defendant beyond a reasonable doubt.”  Id. (citing Fields v. State,
1 S.W.3d 687, 688 (Tex. Crim. App. 1999)).
While
the trial court makes a threshold determination of whether the jury could
rationally find beyond a reasonable doubt that an offense or bad act was
committed, the jury actually decides if the State met its burden of proof.  Mitchell
v. State, 931 S.W.2d 950, 953–54 (Tex. Crim. App. 1996); Nanez v. State,
179 S.W.3d 149, 151–52 (Tex. App.—Amarillo 2005, no pet.).  “Before the jury
can consider this evidence in assessing punishment, it must be satisfied beyond
a reasonable doubt that the acts are attributable to the defendant.”  Haley,
173 S.W.3d at 515.  Thus, when an appellant complains on appeal of the
sufficiency of the evidence of an extraneous offense at the punishment phase,
the complaint is not truly about sufficiency.  See Malpica v. State, 108
S.W.3d 374, 378–79 (Tex. App.—Tyler 2003, no pet.); see also Moody v. State,
No. 02-06-00362-CR, 2007 WL 3120705, at *2 (Tex. App.—Fort Worth Oct. 25, 2007,
no pet.) (mem. op., not designated for publication).  Rather, the complaint
goes to the admission of the evidence.  Malpica, 108 S.W.3d at 378–79.  The
trial court is deemed the sole arbiter on the threshold issue of admissibility
of relevant evidence during the punishment phase of a trial, and its decision
is reviewed under an abuse of discretion standard.  Mitchell, 931 S.W.2d
at 953.  We thus construe Appellant’s complaint as a challenge to the admission
of the extraneous offense evidence, and we will examine the extraneous offense
evidence to decide whether the trial court abused its discretion by determining
that there is evidence upon which a fact finder could find beyond a reasonable
doubt that the extraneous offense was attributable to Appellant.  See Arzaga
v. State, 86 S.W.3d 767, 781 (Tex. App.—El Paso 2002, no pet.); Wilson
v. State, 15 S.W.3d 544, 549 (Tex. App.—Dallas 1999, pet. ref’d); see
also Moody, 2007 WL 3120705, at *2.  A trial court does not abuse its
discretion as long as the decision to admit or to exclude the evidence is
within the zone of reasonable disagreement.  Montgomery v. State, 810
S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh’g); see Green v. State,
934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996), cert. denied, 520 U.S.
1200 (1997).
B. 
Discussion
          Appellant
points to the testimony by Dr. Urban that she believed Cobb died as a result of
homicidal violence, arguing that her testimony is “ambiguous and not definite,”
that Dr. Urban could not determine the cause of death due to the decomposition
of the body, and that there was no affirmative link to Appellant. The court of
criminal appeals has held, however, that article 37.07’s proof beyond a
reasonable doubt requirement does not require the offering party to necessarily
prove that the act was a criminal act or that the defendant committed a crime.  Haley,
173 S.W.3d at 515.  Rather than proof of the elements of a crime necessary for
a finding of guilt, article 37.07 requires proof beyond a reasonable doubt that
the defendant was involved in the act itself.  Id.  
          In
the light most favorable to the prosecution, the evidence revealed that
Appellant had lived at Keisel’s house on Cober Drive with Keisel, Gandar,
Brown, and Cobb for about a week near Thanksgiving; that Appellant had
threatened Cobb with a gun and hatchet; that Appellant had hog-tied Cobb with
duct tape and had put her in the trunk of his stolen car; that Appellant left
the Cober Drive house with Cobb around midnight on Thanksgiving; that Cobb was
not thereafter seen alive; that Appellant confessed to Gandar that he had
killed Cobb; that duct tape with hair and leaf particles was recovered from the
car’s trunk; that Cobb’s body, duct tape consistent with being wrapped around a
woman’s head, and a knife from the Cober Drive house were recovered from a
field less than a ten-minute drive from the Cober Drive house; that Cobb died as
a result of homicidal violence; and that although the exact time of Cobb’s
death could not be determined, death on Thanksgiving was consistent with the
medical examiner’s findings.  Based on this evidence, we hold that the trial
court did not abuse its discretion by determining that a fact finder could find
beyond a reasonable doubt that Cobb’s murder was attributable to Appellant.  See
id. (“[T]he punishment phase requires the jury [to] find that these prior
acts are attributable to the defendant beyond a reasonable doubt.”); Franks
v. State, No. 01-07-00253-CR, 2008 WL 4427665, at *2 (Tex. App.—Houston
[1st Dist.] Oct. 2, 2008, no pet.) (mem. op., not designated for publication). 
We overrule Appellant’s first point.
IV. 
Admission of Evidence
          Appellant
contends in his second, third, and fourth points that the trial court abused
its discretion by overruling his objections to certain evidence admitted during
the punishment phase of his trial.  The State responds that Appellant failed to
preserve his complaints for appellate review. 
A. 
Applicable Law
          To
preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the
request, objection, or motion.  Tex. R. App. P. 33.1(a)(1); Layton v. State,
280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009).  Further, the trial court must
have ruled on the request, objection, or motion, either expressly or implicitly,
or the complaining party must have objected to the trial court’s refusal to
rule.  Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341
(Tex. Crim. App. 2004).  A reviewing court should not address the merits of an
issue that has not been preserved for appeal.  Ford v. State, 305 S.W.3d
530, 532 (Tex. Crim. App. 2009).
B. 
Rule 403 Objections to Photographs of the Deceased
          Appellant
argues in his second point that the trial court erred by overruling his rule
403 objection to photographs of Cobb’s remains.  During the State’s direct
examination of crime scene supervisor Andra Lewis-Krick, the State offered, in
bulk, forty-four photographs taken by crime scene investigators as they
searched the field where Cobb’s remains were found.  Appellant lodged, and the
trial court overruled, a rule 403 objection to the photographs when the State
offered them.  
Appellant
argues that the trial court “did not conduct a balancing test as is required by
Rule 403 and allowed the photographs to be admitted.”  Once a party asserts a rule
403 objection, the trial court must engage in the balancing test required by
that rule.  Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App.
1997); see also Alami v. State, 333 S.W.3d 881, 889 (Tex. App.—Fort
Worth 2011, no pet.).  “However, a trial judge is not required to sua sponte
place any findings he makes or conclusions he draws when engaging in this test
into the record.”  Williams, 958 S.W.2d at 195.  “Rather, a judge is
presumed to engage in the required balancing test once Rule 403 is invoked,”
and the trial court’s failure to conduct the balancing test on the record does
not imply otherwise.  Id. at 195–96.  Here, although the trial court did
not state on the record that it had conducted the rule 403 balancing test, it
was not required to do so.  See id.  We therefore overrule this portion
of Appellant’s second point.  
Appellant
also contends in his second point that the trial court abused its discretion by
admitting the forty-four photographs because they “did no more than to inflame
the jury in sympathy for the State.”  We have reviewed each of the
complained-of photographs, and only State’s Exhibit 101 is potentially
inflammatory.  It depicts the human skull found in the field near Cobb’s other
remains.  However, the identical photograph was admitted without objection from
Appellant as State’s Exhibit 126.  Moreover, Appellant stated that he had no
objection when the State offered State’s Exhibits 149 through 163, which are
photographs taken by the medical examiner during the autopsy of Cobb’s remains.
 By failing to object when similar evidence was offered, Appellant failed to
preserve the remainder of his second point for appellate review, and we
overrule it.  See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App.
1998) (“[O]verruling an objection to evidence will not result in reversal when
other such evidence was received without objection, either before or after the
complained-of ruling.”).
C. 
Rule 403 Objection to Clothing Items
          Appellant
contends in his third point that the trial court erred by overruling his rule
403 objection to items of Cobb’s clothing.  However, Appellant objected only to
the relevance of these exhibits at trial and did not assert a rule 403
objection when they were offered.  Appellant therefore failed to preserve his
third point for appellate review, and we overrule it.  See Montgomery,
810 S.W.2d at 389 (holding that relevance objection does not preserve complaint
that danger of unfair prejudice outweighed relevance); Chase v. State,
Nos. 02-06-00063-CR, 02-06-00064-CR, 2007 WL 866221, at *5 (Tex. App.—Fort
Worth Mar. 22, 2007, pet. ref’d) (mem. op., not designated for publication)
(holding same).
D. 
Relevance Objection to Testimony by Detective Ellzey
          Appellant
argues in his fourth point that the trial court erred by overruling his
relevance objection to Detective Ellzey’s testimony concerning the knife
recovered near Cobb’s remains.  In summary, Detective Ellzey testified that the
knife marked as State’s Exhibit 136 was recovered from an abandoned car near
Cobb’s remains, that he later identified the knife by speaking with Keisel at
his residence on Cober Drive, that the knife was the same brand as the knife
set at Keisel’s residence, and that one of the knives was missing from Keisel’s
set.  After this testimony by Detective Ellzey and when the State offered the
knife into evidence, Appellant asked several questions of Detective Ellzey on
voir dire.  Appellant then objected to the admissibility of the knife;
Appellant did not, however, object to any of Detective Ellzey’s testimony about
the knife or ask that it be stricken.  Because Appellant did not object at
trial to Detective Ellzey’s testimony about the knife, he cannot complain on
appeal that the trial court abused its discretion by permitting Detective
Ellzey to testify about the knife.  See Tex. R. App. P. 33.1(a); Layton,
280 S.W.3d at 238–39; Mendez, 138 S.W.3d at 341.  We therefore overrule
Appellant’s fourth point.
V.  Stacked
Sentence
          Appellant
contends in his fifth point that the trial court erred by ordering that his
sentence in this case run consecutively to the remainder of his sentence from a
prior conviction in Stephens County.[4]  Specifically, Appellant
contends that the trial court “failed to include the proper language in its
Order when it stacked the Appellant’s sentence.”
          The
court of criminal appeals has held that a cumulation order should ordinarily
set forth five things:  “(1) the trial court number of the prior conviction; (2)
the correct name of the court where the prior conviction was taken; (3) the
date of the prior conviction; (4) the term of years of the prior conviction;
and (5) the nature of the prior conviction.”  Ward v. State, 523 S.W.2d
681, 682 (Tex. Crim. App. 1975).  “It is well settled, however, that the
inclusion of all elements recommended above is not mandatory.”  Williams v.
State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984) (op. on reh’g).  A “cumulation
order will be upheld so long as the trial court’s description of prior
convictions is ‘substantially and sufficiently specific’ to give notice both to
the defendant and to the Department of Corrections exactly which sentences the
instant sentence is cumulated with.”  Id. (quoting Ex parte Lewis,
414 S.W.2d 682, 683 (Tex. Crim. App. 1967)).  Indeed, the court of criminal
appeals has upheld “[c]umulation orders which merely set out the cause number
and the correct name of the trial court of the prior conviction.”  Id. 
And this is exactly what the judgment in the present case contained:  the cause
number of the prior conviction and the correct name of the court where the
prior conviction occurred.  Thus, the judgment contains sufficient information
for Appellant and the department of criminal justice to know that the current
sentence of ninety-nine years’ confinement will commence immediately upon
Appellant’s completion of his remaining sentence for his prior conviction in
Cause Number 28479 from the 90th District Court of Stephens County.  See id. 
We therefore overrule Appellant’s fifth point.
VI. 
Conclusion
          Having
overruled each of Appellant’s five points, we affirm the trial court’s
judgment.
 
 
PER CURIAM
 
PANEL: 
GARDNER,
J.; LIVINGSTON, C.J.; and WALKER, J.
 
DO
NOT PUBLISH
Tex.
R. App. P. 47.2(b)
 
DELIVERED:  October 13, 2011




[1]See Tex. R. App. P. 47.4.


[2]Keisel initially refused
to allow the officers inside the house. 


[3]Appellant stipulated that
the remains were Cobb’s.


[4]Appellant was on parole
from the Stephens County conviction at the time of the instant aggravated
robbery.


