                       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 OPINION1
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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

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




                                         2
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


                                        3
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


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


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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.




      3
       Appellant stipulated that the remains were Cobb‘s.


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            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


                                        6
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


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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


                                         8
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,


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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


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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.‖).


                                        11
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


                                        12
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

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


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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




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