                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00082-CR



          FREDERICK L. BROWN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 188th District Court
                Gregg County, Texas
              Trial Court No. 47,806-A




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                     MEMORANDUM OPINION
           In a single trial, Frederick L. Brown was convicted of (1) the second-degree felony offense

of family violence assault by impeding the normal breathing or blood circulation of Lori

Hutzelman 1 and (2) the third-degree felony offense of family violence assault 2 against Hutzelman.

Brown was sentenced to concurrent prison terms of five years and ten years, respectively. On

appeal, Brown claims that (1) the trial court erred in admitting Hutzelman’s out-of-court

statements in violation of Brown’s right of confrontation, (2) the evidence is insufficient to support

a finding that he is the same person listed in a certified prior judgment for family violence assault,

and (3) the trial court erred in denying his request for a mistrial. For the reasons stated below, we

affirm the trial court’s judgment.

I.         Factual and Procedural Background

           In June 2018, a resident of 1707 Hutchings Street in Longview called 9-1-1 to report a

black male and a white female fighting outside 1704 Hutchings Street. He stated that he heard the

man slap the woman and the woman screaming that she was bleeding. Patrol officers responded

to the call at 1704 Hutchings and knocked on the door. Brown, who was sweeping glass from the

living room floor, explained that he and his girlfriend were “just getting into it.” Hutzelman was

sitting on the couch and seemed scared. When interviewed by officers, Hutzelman explained that

she and Brown argued and that he began to assault her. Hutzelman stated that Brown punched her

in the stomach and then struck her with a broom ten times on the shoulders and upper torso area.


1
    See TEX. PENAL CODE ANN. § 22.01(b-3) (Supp.).
2
    See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (Supp.).

                                                         2
According to Hutzelman, Brown then dropped the broom and grabbed her around the throat and

began to choke her. Hutzelman was able to free herself from Brown when she kicked him. She

stated that she then tried to leave. Hutzelman stated that, once she was outside, Brown hit her in

the head and pulled her back inside the house by her hair. Hutzelman had red marks on her throat,

bruising on her left arm, and a broken blood vessel in her eye.

II.     Forfeiture by Wrongdoing

        When police officers responded to a neighbor’s 9-1-1 call to report domestic violence,

Hutzelman told officers that Brown had repeatedly struck her with a broom and that he had choked

her. Although Brown objected to the officers’ testimony about these statements on confrontation

grounds, the trial court determined that the doctrine of forfeiture by wrongdoing applied, thus

barring Brown from asserting his right of confrontation. On appeal, Brown claims this ruling was

in error.

        A.     Standard of Review

        In reviewing the trial court’s decision to admit or exclude evidence under the doctrine of

forfeiture by wrongdoing, we apply an abuse of discretion standard. Shepherd v. State, 489 S.W.3d

559, 572 (Tex. App.—Texarkana 2016, pet. ref’d). Under this standard, we will uphold the trial

court’s ruling if it falls within the “zone of reasonable disagreement” and is “correct under any

theory of law applicable to the case.” Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.

2007). The trial court is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). Where, as here, there are no findings of fact, “we review the evidence in the light most

                                                  3
favorable to the court’s ruling and assume the court made findings that are supported by the

record.” Shepherd, 489 S.W.3d at 572–73 (citing Carmouche v. State, 10 S.W.3d 323, 327–28

(Tex. Crim. App. 2000)). “Based on our standard of review, we have no choice but to defer to the

trial court’s discretion on such issues, even if we would have decided them differently,” Id. at 573

(citing State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007)), and will uphold an

evidentiary ruling if it “is correct on any theory of law applicable to that ruling,” De La Paz v.

State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

       B.      Analysis

       The Sixth Amendment guarantees a criminal defendant the right to be confronted with the

witnesses against him. Giles v. California, 554 U.S. 353, 357–58 (2008); Gonzalez v. State, 195

S.W.3d 114, 116 (Tex. Crim. App. 2006); Shepherd, 489 S.W.3d at 573. That said, “Under

forfeiture by wrongdoing, the defendant is barred from asserting his right of confrontation when

he has wrongfully procured the unavailability of the witness.” Shepherd, 489 S.W.3d at 573.

Under this doctrine, “there must be some showing by the proponent of the statement that the

defendant intended to prevent the witness from testifying.” Id. (citing Giles, 554 U.S. at 361–62).

The forfeiture by wrongdoing doctrine has been codified in Article 38.49 of the Texas Code of

Criminal Procedure. See id. at 574 (“[T]he requirements of Article 38.49 substantially correspond

with the requirements for forfeiture by wrongdoing set out in Giles.”). Article 38.49 provides:

              (a)      A party to a criminal case who wrongfully procures the
       unavailability of a witness or prospective witness:

               (1)    may not benefit from the wrongdoing by depriving the trier of fact
       of relevant evidence and testimony; and

                                                 4
              (2)     forfeits the party’s right to object to the admissibility of evidence or
       statements based on the unavailability of the witness as provided by this article
       through forfeiture by wrongdoing.

               (b)     Evidence and statements related to a party that has engaged or
       acquiesced in wrongdoing that was intended to, and did, procure the unavailability
       of a witness or prospective witness are admissible and may be used by the offering
       party to make a showing of forfeiture by wrongdoing under this article, subject to
       Subsection (c).

              (c)    In determining the admissibility of the evidence or statements
       described by Subsection (b), the court shall determine, out of the presence of the
       jury, whether forfeiture by wrongdoing occurred by a preponderance of the
       evidence. If practicable, the court shall make the determination under this
       subsection before trial using the procedures under Article 28.01 of this code and
       Rule 104, Texas Rules of Evidence.

TEX. CODE CRIM. PROC. ANN. art. 38.49.

       In accordance with Article 38.49(c), the trial court held a hearing outside the jury’s

presence to determine “whether forfeiture by wrongdoing occurred by a preponderance of the

evidence.” TEX. CODE CRIM. PROC. ANN. art. 38.49(c).

       At the Article 38.49 hearing, Hall Reavis, the chief investigator for the Gregg County

District Attorney’s Office, testified that he first attempted to locate Hutzelman at her last known

address on Hutchings Street in Longview on April 8 to serve her with a trial subpoena for April 16.

Brown answered the door, told Reavis that Hutzelman was not there, and stated that the two were

no longer a couple. Brown could not state with any specificity when he last saw Hutzelman and

told Reavis that he did not know where to find her but that she was from Ohio and had family

there. According to Reavis, Brown was not “real cooperative.” Reavis returned to the Hutchings

Street residence the next day to serve the subpoena. When no one answered the door, Reavis



                                                 5
waited down the street and eventually saw Brown leave the house. Reavis again tried to serve the

subpoena, but no one answered the door.

           Reavis next returned to the Hutchings Street residence on the morning of April 12. Reavis

had seen Brown in court that morning and believed Hutzelman was home, “[b]ased on some other

information that [he] was picking up.” After he knocked on the door “numerous times,” a white

female that he recognized as Hutzelman answered the door. When Reavis told Hutzelman that he

had a subpoena for her from the district attorney’s office, she slammed the door. Reavis left the

subpoena in the door and told Hutzelman through the door that she had been served and that she

was required to be in court on Monday. 3

           Reavis explained that he looked at Hutzelman’s Facebook page when he was attempting to

locate her. In doing so, he discovered that Hutzelman posted a profile picture with Brown on

April 1. The photograph of Hutzelman and Brown was captioned “Together We Stand Strong.”

Hutzelman also posted a video recording on April 1 captioned “Me and my baby at the scrapyard”

that depicted Brown and Hutzelman. 4 At the end of the hearing, the trial court took judicial notice

of a prior family violence assault case against Brown in which Hutzelman was also the victim.

After reviewing the evidence, the trial court determined that the State met its burden of proof by a




3
    Hutzelman did not appear in court in accordance with the subpoena.

4
 Although Brown did not object to Reavis’ testimony about Hutzelman’s Facebook photos, he did object to the photos
because they were not properly authenticated. The trial court overruled Brown’s objection. Brown claims this was
error. Article 38.49(c) specifically provides that the hearing is to be conducted in accordance with Rule 104 of the
Texas Rules of Evidence. TEX. CODE CRIM. PROC. ANN. art. 38.49(c). Rule 104(a) provides that, when “[t]he court
must decide any preliminary question about whether . . . evidence is admissible[,] . . . the court is not bound by
evidence rules, except those on privilege.” TEX. R. EVID. 104(a); see Gonzalez v. State, 195 S.W.3d 114, 124 n.41
(Tex. Crim. App. 2006).
                                                           6
preponderance of the evidence under Article 38.49. The trial court therefore ruled that the State

was free to introduce Hutzelman’s statements to the police at trial.

        Brown claims that the State did not establish, by a preponderance of the evidence, that he

procured Hutzelman’s unavailability to testify at trial. We disagree. A mere seven days before

Reavis’ first attempt to serve Hutzelman with a trial subpoena, Hutzelman’s Facebook post

depicted Brown and her together, standing strong. Yet, Brown told Reavis that he and Hutzelman

were no longer together on April 8 and that he did not know how to locate her. Only four days

later, Hutzelman answered the door of the Hutchings Street residence she evidently shared with

Brown and was served with the trial subpoena. 5 This evidence indicates that Brown deceived

Reavis about the status of his relationship with Hutzelman in an attempt to thwart Reavis’ efforts

to serve Hutzelman with the subpoena.

        Along with the foregoing evidence, the trial court also considered evidence of a prior

assault committed by Brown against Hutzelman. The United States Supreme Court has recognized

that the doctrine of forfeiture by wrongdoing has relevance in domestic violence cases:

        Acts of domestic violence often are intended to dissuade a victim from resorting to
        outside help, and include conduct designed to prevent testimony to police officers
        or cooperation in criminal prosecutions. . . . Earlier abuse, or threats of abuse,
        intended to dissuade the victim from resorting to outside help would be highly
        relevant to this inquiry, as would evidence of ongoing criminal proceedings at
        which the victim would have been expected to testify.



5
 Brown contends that Hutzelman was not unavailable because the State did not serve her with a writ of attachment.
This argument appears to be based on the Rule 804 exceptions to the rule against hearsay when the declarant is
unavailable as a witness. See TEX. R. EVID. 804. Because the trial court acted within its discretion in admitting
Hutzelman’s statements to officers in accordance with Article 38.49 of the Texas Code of Criminal Procedure, we
need not address this issue. See TEX. CODE CRIM. PROC. ANN. art. 38.49. It also does not appear in the record before
us that this specific complaint was made in the trial court. See TEX. R. APP. P. 33.1.
                                                         7
Giles, 554 U.S. at 377; see also Giles, 554 U.S. at 380 (Souter, J., concurring) (“[T]he element of

intention would normally be satisfied by the intent inferred on the part of the domestic abuser in

the classic abusive relationship, which is meant to isolate the victim from outside help, including

the aid of law enforcement and the judicial process.”). The trial court acted within its discretion

in admitting Hutzelman’s statements to law enforcement based on Brown’s actions in trying to

hinder service and on the parties’ prior relationship in which Hutzelman was assaulted. The trial

court could infer that Hutzelman’s sharply negative response to Reavis when she opened the door

to him resulted from her fear of cooperating in the prosecution of the case. See Tarley v. State,

420 S.W.3d 204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (holding that the trial court

could infer from evidence that second assault of victim was designed to keep her from testifying).

We hold that the trial court acted within its discretion in finding forfeiture by wrongdoing and in

admitting Hutzelman’s June 25, 2018, statements to officers.

III.    Evidence of Prior Conviction Was Sufficient

        Both counts of the indictment against Brown included the allegation that he had previously

been convicted of an offense

        under Chapter 22, Penal Code, against a member of said Defendant’s family and
        household and with whom the said Defendant has had a dating relationship, as
        described by Chapter 71, Family Code, to-wit: on the 24th day of October, 2015,
        in the County Court at Law #1 of Gregg County, Texas, in cause number 2014-
        1820.[6]




6
 This allegation states that Brown was previously convicted in October 2015. The prior conviction entered into
evidence by the State was dated October 2014.
                                                      8
Proof of this allegation was required to increase the level of offense in count I of the indictment

from a third-degree felony to a second-degree felony and to increase the level of offense in count II

of the indictment from a Class A misdemeanor to a third-degree felony. See TEX. PENAL CODE

ANN. § 22.01(b-3), (b)(2)(A).

       “To establish that a defendant has been convicted of a prior offense, the State must prove

beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that

conviction.” Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). “No specific

document or mode of proof is required to prove these two elements.” Id. “In proving prior

convictions, identity often includes the use of a combination of identifiers, and ‘[e]ach case is to

be judged on its own individual merits.’” Henry v. State, 466 S.W.3d 294, 301 (Tex. App.—

Texarkana 2015), aff’d, 509 S.W.3d 915 (Tex. Crim. App. 2016) (quoting Littles v. State, 726

S.W.2d 26, 30–32 (Tex. Crim. App. 1984) (op. on reh’g)).             The State is entitled to use

circumstantial evidence to prove that the defendant is the same person named in the alleged prior

convictions, and proof may be made “in a number of different ways.” Flowers, 220 S.W.3d at

921. “The totality of the circumstances determines whether the State met its burden of proof.”

Henry, 466 S.W.3d at 301 (citing Flowers, 220 S.W.3d at 923).

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield

v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine legal

                                                 9
sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility

of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007).

       At trial, the State offered, and the trial court admitted into evidence without objection, a

certified copy of a judgment against “Fredrick L. Brown” for family violence assault in the County

Court at Law #1 of Gregg County, Texas, in cause number 2014-1820. Brown contends that

simply proving that he has the same name as the person named in the prior conviction is not

sufficient to link him to the prior conviction. We agree. “Unless the defendant’s name is unique,

a name and signature are insufficient by themselves to link a defendant to a prior conviction.”

Barnes v. State, No. 06-19-00045-CR, 2019 WL 4686488, at *4 (Tex. App.—Texarkana Sept. 25,

2019, pet. filed) (citing Strehl v. State, 486 S.W.3d 110, 114 (Tex. App.—Texarkana 2016, no pet.)

(“Evidence that the defendant merely has the same name as the person previously convicted is not

sufficient to satisfy the prosecution’s burden.”)). “Even having two prior convictions for the same

offense committed in the same county is legally insufficient, standing alone, to prove beyond a

reasonable doubt that [the defendant]” was the subject of the prior conviction. Strehl v. State, 486

S.W.3d 110, 114 (Tex. App.—Texarkana 2016, no pet.).

       Yet, Brown ignores other evidence that we must consider in our determination of whether

the State carried its burden of proof. Officer Jonathan Wolf of the Longview Police Department

testified that Brown told him—as recorded on Wolf’s body camera on the night of June 25—that

                                                10
his date of birth was “5/19/67.” The State also published Wolf’s body camera recording to the

jury as exhibit 12 on which Brown can be heard stating to Wolf that his birth date was “5/19/67.”

Although the judgment in cause number 2014-1820 does not list a date of birth for Fredrick L.

Brown, the fingerprint card in cause number 2014-1820 lists the defendant’s date of birth as

May 19, 1967. At the time of his arrest in this case, Brown lived in Longview, Gregg County,

Texas. The October 2014 conviction for family violence assault emanated from the County Court

at Law #1 of Gregg County, Texas.

       Here, Brown is linked to the prior conviction by name, birth date, type of offense, and

county of offense. The evidence shows not only that the name in the previous judgment was the

same as that of the defendant, but also shows that both offenses were committed in the same county

and that both offenses—committed within four years of each other—were for family violence

assault. The evidence here also established that the defendant in both cases was born on May 19,

1967. Given these facts, we conclude that a rational trier of fact could have found beyond a

reasonable doubt that Brown was the same defendant convicted of family violence assault in the

2014 Gregg County judgment. See Smith v. State, 401 S.W.3d 915, 920 (Tex. App.—Texarkana

2013, pet. ref’d) (name, date of birth, and partial matching social security number sufficient to link

defendant to prior conviction). We, therefore, overrule this point of error.

IV.    Brown Did Not Preserve Error on His Mistrial Complaint

       At the end of the guilt/innocence phase of the trial, the jury returned its verdict finding

Brown guilty of both counts I and II as alleged in the indictment. After the jury returned its verdict,

Brown moved for a mistrial on the basis that the jury was improperly voir dired on the wrong

                                                  11
penalty range. He claimed the panel was told the range of punishment was two to ten years. 7 The

State argued that the jury did not deliberate on punishment during the guilt/innocence phase of the

trial. The State also pointed out that only the State would be harmed if the jury could not consider

an increased range of punishment. The trial court denied the motion for mistrial.

        On appeal, Brown claims that the trial court improperly denied his motion for mistrial

based on the trial court’s failure to properly admonish him as to the range of punishment as

required by Article 26.13(a)(1) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 26.13(a)(1) (Supp.). 8 Because this objection was not made at trial, we may not

address it on appeal. “The point of error on appeal must correspond or comport with the objection

made at trial.” Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d)

(citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998) (op. on reh’g)). “Where a trial

objection does not comport with the issue raised on appeal, the appellant has preserved nothing for

review.” Id.; see TEX. R. APP. P. 33.1. Because the trial objection was based on improper jury

voir dire, Brown has not preserved for our review his complaint that the trial court did not properly

admonish him in accordance with Article 26.13(a)(1) of the Texas Code of Criminal Procedure. 9




7
 Brown was convicted, in accordance with count I of the indictment, of a second-degree felony, which carries a
punishment range of two to twenty years’ imprisonment.
8
 Brown also seems to imply by his argument that, because the State did not voir dire on an enhanced punishment range
of two to twenty years in prison, Brown was unaware that he was facing up to twenty years in prison. This argument
was not brought as a separate point of error and was not briefed. See TEX. APP. P. 33.1.
9
 We note that Article 26.13 applies when the defendant enters a plea of guilty or nolo contendere. TEX. CODE CRIM.
PROC. ANN. art. 26.13(a) (Supp.). Here, Brown’s plea was not guilty.
                                                        12
V.    Conclusion

      We affirm the trial court’s judgment.




                                              Scott E. Stevens
                                              Justice

Date Submitted:      November 6, 2019
Date Decided:        November 27, 2019

Do Not Publish




                                                13
