                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-16-00684-CR

                                       James Harley STACY,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 437th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2015CR7238A
                           Honorable Lori I. Valenzuela, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Karen Angelini, Justice
                 Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: January 31, 2018

AFFIRMED

           James Harley Stacy was convicted by a jury of aggravated kidnapping and sentenced by

the trial court to forty-five years’ imprisonment. On appeal, Stacy contends the trial court erred in

denying his motion to set aside the indictment and in submitting an erroneous jury charge because

the indictment and the jury charge combined multiple manner and means of committing the offense

of aggravated kidnapping as well as multiple aggravating circumstances. Stacy also contends the

trial court abused its discretion in admitting into evidence testimony regarding two of his tattoos

and his explanation of the tattoos’ meanings. We affirm the trial court’s judgment.
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                                                    BACKGROUND

           The complainant, an admitted heroin addict, was arrested for possession of a controlled

substance. After she was released from jail, she met Natalie Hatcher and Stacy, Natalie’s

boyfriend/fiancé. Through the course of the next several days, the complainant, Hatcher, and Stacy

used drugs together, staying at various locations and using the complainant’s vehicle for

transportation. 1

           At some point, the complainant returned home without her cell phone, and the

complainant’s mother gave the complainant her cell phone to take with her. Later that day, the

complainant, Hatcher, and Stacy were kicked out of the hotel where they were staying and drove

approximately one and a half hours to Stacy’s father’s house. During that trip, the complainant,

who was blindfolded in the rear passenger seat, hit Stacy, who was driving, in the back of the head

because her drug-induced delusions made her believe Stacy had raped her girlfriend and taken her

to Laredo. Hatcher climbed from the front passenger seat to the rear seat and physically restrained

the complainant with cords and handcuffs. Hatcher also hit the complainant and banged her head

against the window in an effort to keep her quiet. At one point during the trip, the complainant

and Hatcher both testified Stacy sexually assaulted the complainant while she was restrained and

punched her in the mouth when she screamed, breaking her jaw and leaving her two front teeth

dangling in her mouth. On cross-examination, however, Hatcher admitted she stated she was the

person who beat up the complainant in a letter and phone call to her mother and also wrote letters

stating she did not want Stacy to go to prison for something he did not do.

           Sometime after the complainant was assaulted, Hatcher agreed to meet the complainant’s

mother and return her cell phone. The complainant’s parents requested the assistance of a San



1
    The complainant’s girlfriend was also present for the first few days.

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Antonio police officer who was a friend. The complainant’s parents met Hatcher in a parking lot,

and she returned the cell phone but left before the officer arrived. When the officer arrived, he

suggested the complainant’s parents follow him in their car to various nearby hotels which were

known to be locations where drug users would stay. After they had driven through various

locations and were discussing their next course of action, the complainant’s mother spotted the

complainant’s car. Stacy was driving the car, and the complainant was in the front passenger seat

visibly high on drugs. The officer executed a traffic stop and began questioning Stacy. When the

complainant’s mother approached her daughter and saw her injuries, the complainant told her

mother that Stacy had raped her.

       Stacy and Hatcher were both arrested and charged with aggravated kidnapping. Hatcher

subsequently agreed to testify against Stacy as part of a plea bargain agreement which reduced the

charge against her to kidnapping with the possibility of shock probation in six months.

       After hearing all the evidence, the jury found Stacy guilty of aggravated kidnapping, and

the trial court sentenced him to forty-five years’ imprisonment. Stacy appeals.

                                 INDICTMENT AND JURY CHARGE

       Stacy filed a pre-trial motion to set aside the indictment, asserting the indictment combined,

in a single count and paragraph, multiple manner and means of committing the offense of

aggravated kidnapping, as well as multiple aggravating circumstances. Stacy also objected to the

jury charge on the same basis, asserting a general verdict of guilty would result in uncertainty

regarding whether the jury unanimously found he had committed the offense of kidnapping with

the intent to sexually violate or abuse the complainant. Specifically, Stacy asserts the indictment

and jury charge allowed him to be convicted if he committed the offense of kidnapping aggravated

by one of the following circumstances: (1) inflicting bodily injury on the complainant; (2) violating

or abusing the complainant sexually; or (3) using or exhibiting a deadly weapon during the
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commission of the offense. See TEX. PENAL CODE ANN. § 20.04(a)(4), (b) (West 2011). Stacy

argues unanimity was required on whether he committed the offense by violating or sexually

abusing the complainant because he would be required to submit to sex offender registration only

if he committed the offense in that manner.

       In his brief, Stacy acknowledges aggravated kidnapping is a result-oriented offense, and

the “allowable unit of prosecution” correlates to each victim abducted. See Gonzales v. State, 270

S.W.3d 282, 288 (Tex. App.—Amarillo 2008, pet. ref’d). Stacy further acknowledges jury

unanimity generally is not required on any specific manner or means because the State may plead

alternate manner and means of committing a single offense when a statute provides for different

modes and means of committing the offense. Jefferson v. State, 189 S.W.3d 305, 312-13 (Tex.

Crim. App. 2006); Rangel v. State, No. 04-09-00576-CR, 2010 WL 2183904, at *2 (Tex. App.—

San Antonio June 2, 2010, no pet.) (mem. op., not designated for publication). However, Stacy

argues the general rule does not apply in his case because one of the aggravating circumstances

alleged by the State and included in the jury charge was violating or abusing the complainant

sexually. If the jury found Stacy committed the offense in this manner, Stacy would be required

to submit to sex offender registration. Citing the United States Supreme Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000), Stacy argues the jury was required to unanimously

determine whether he committed the offense by violating or abusing the complainant sexually

because the sex offender registration requirement increased his punishment.

       The Texas Court of Criminal Appeals has explained the application of Apprendi as follows:

               The Supreme Court determined in Apprendi v. New Jersey that “[o]ther than
       the fact of a prior conviction, any fact that increases the penalty for a crime beyond
       the prescribed statutory maximum must be submitted to a jury, and proved beyond
       a reasonable doubt.” [530 U.S. 466, 490 (2000)]. As Justice Scalia later explained
       for the Supreme Court in Blakely v. Washington, the statutory maximum in this
       context means the “maximum sentence a judge may impose solely on the basis of
       the facts reflected in the jury verdict or admitted by the defendant.” [542 U.S. 296,
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       303 (2004)]. Thus, the Apprendi line of cases requires that, in any case in which
       the defendant has elected to exercise his Sixth Amendment right to a jury trial, any
       discrete finding of fact that has the effect of increasing the maximum punishment
       that can be assessed must be made by the jury, even if that fact-finding occurs as
       part of the punishment determination.

Barrow v. State, 207 S.W.3d 377, 379 (Tex. Crim. App. 2006) (emphasis in original). Therefore,

in determining whether Apprendi applies in this case, we must determine whether Stacy’s

commission of the offense by violating or sexually abusing the complainant sexually was a fact

that increased Stacy’s statutory maximum punishment.

       In addressing whether the sex offender registration requirement violated the Ex Post Facto

Clauses of the United States and Texas Constitutions, the Texas Court of Criminal Appeals held

that the registration requirement is civil and remedial in nature; therefore, the registration

requirement is not considered to be punishment. Rodriguez v. State, 93 S.W.3d 60, 65, 67, 79

(Tex. Crim. App. 2002); see also Hernandez v. State, No. 04-04-00020-CR, 2004 WL 1195833,

at *1 (Tex. App.—San Antonio June 2, 2004, no pet.) (mem. op., not designated for publication)

(recognizing sex offender registration requirement does not constitute punishment). Accordingly,

because Stacy’s duty to register in this case did not increase his punishment beyond the statutory

maximum, the jury was not required to unanimously determine the aggravating circumstance of

his offense under the Apprendi-Blakely rule. See, e.g., Walton v. Prelesnik, No. 13-12797, 2015

WL 7351782, at *6-7 (E.D. Mich. Nov. 20, 2015) (concluding requirement that individual register

as a sex offender did not violate the Apprendi-Blakely rule because registration requirement was

not intended to punish sex offenders); Silva v. Idaho, No. CV 08-531-S-REB, 2010 WL 529495,

at *3–4 (D. Idaho Feb. 8, 2010) (same); Victory v. Lewis, No. C 03-1061 JSW (PR), 2008 WL

3926406, at *37 (N.D. Cal. Aug. 25, 2008) (same). Therefore, Stacy’s first and second issues are

overruled.



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                                 EVIDENCE REGARDING TATTOOS

       In his third issue, Stacy contends the trial court abused its discretion in admitting the

testimony of a sexual assault nurse examiner (SANE) describing two of his tattoos and the

explanation he gave the SANE nurse about the tattoos. Stacy asserts the probative value of the

evidence was substantially outweighed by its prejudicial effect under Rule 403 of the Texas Rules

of Evidence.

       “Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value

is substantially outweighed by the danger of unfair prejudice.” Davis v. State, 329 S.W.3d 798,

806 (Tex. Crim. App. 2010); see also TEX. R. EVID. 403. “Rule 403 favors the admission of

relevant evidence and carries a presumption that relevant evidence will be more probative than

prejudicial.” Davis, 329 S.W.3d at 806. “Probative value” “‘refers to the inherent probative force

of the evidence — that is, how strongly it serves to make more or less probable the existence of a

fact of consequence to the litigation — coupled with the proponent’s need for that item of

evidence.’” Id. (quoting Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). “Unfair

prejudice” “‘refers to a tendency to suggest [a] decision on an improper basis, commonly, though

not necessarily, an emotional one.’” Id. (quoting Casey, 215 S.W.3d at 880). All testimony is

likely to be prejudicial to one party or the other, and evidence should be excluded under Rule 403

only when a clear disparity exists between the degree of prejudice of the offered evidence and its

probative value. Id.

       We review a trial court’s ruling admitting evidence over a Rule 403 objection under an

abuse of discretion standard. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.

2009); McCallum v. State, 311 S.W.3d 9, 14–15 (Tex. App.—San Antonio 2010, no pet.). “As

long as the trial court’s ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of

discretion, and the trial court’s ruling will be upheld.” De La Paz, 279 S.W.3d at 343–44. A
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proper Rule 403 analysis by either the trial court or a reviewing court includes, but is not limited

to, the following factors: (1) the probative value of the evidence; (2) the potential to impress the

jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; (4) the

proponent’s need for the evidence. Jenkins v. State, 493 S.W.3d 583, 608 (Tex. Crim. App. 2016).

        When the State sought to introduce evidence regarding Stacy’s numerous tattoos, Stacy’s

attorney objected that the evidence was unfairly prejudicial under Rule 403. The trial court

excluded all of the photographs of the tattoos and allowed the State to elicit testimony from the

SANE nurse who examined Stacy about only two of Stacy’s many tattoos and Stacy’s description

to her of what the tattoos meant to him.2 One of the tattoos was of a wolf, and Stacy told the SANE

nurse the wolf was “how I see me.”                The SANE nurse described the second tattoo as a

“[c]ircumferential black tattoo over [Stacy’s] entire left lower leg,” 3 and Stacy described that tattoo

as being a “sexual fantasy, S&M type of thing, tying people up.” On re-direct examination, the

SANE nurse was asked what S&M meant, and the SANE nurse testified without objection that it

meant “[t]he act of harming others and getting pleasure from it.”

        Applying the first and fourth balancing factors, the evidence regarding the second tattoo

was probative to show Stacy had a fantasy of tying people up to engage in sex. See Conner v.

State, 67 S.W.3d 192, 201 (Tex. Crim. App. 2001) (“A defendant’s choice of tattoos, like his

personal drawings, can reflect his character and/or demonstrate his motive for his crime.”); King

v. State, 29 S.W.3d 556, 559-60, 565 (Tex. Crim. App. 2000) (noting graphic tattoos, including a

tattoo of “a black man with a noose around his neck hanging from a tree,” were probative of

defendant’s motive to kill the complainant because of his race). With regard to the first tattoo, the


2
  The SANE nurse testified that during every examination, she documents the person’s tattoos and asks the person to
describe what the tattoos mean to that person.
3
  In his brief, Stacy describes the tattoo as a naked woman bound in chains; however, that was not the description
given by the SANE nurse during her testimony.

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State argued during closing argument, again without objection, that the wolf is a predator and

likened Stacy’s actions to that of a predator. Because there was conflicting evidence as to whether

Hatcher physically assaulted the complainant or whether Stacy physically assaulted her while

sexually assaulting her, the evidence was needed to assist in establishing Stacy was the person who

physically and sexually assaulted the complainant. Thus, the trial court could have concluded the

first and fourth prongs of the balancing test weighed in favor of admitting the evidence.

       Applying the second factor, the trial court could have concluded the tendency of the brief

testimony to impress the jury in some irrational, yet indelible, way was slight, and nothing in the

record suggests the evidence caused the jury to behave irrationally. See Hart v. State, 173 S.W.3d

131, 149 (Tex. App.—Texarkana 2005, no pet.) (holding trial court did not abuse its discretion in

admitting photographs of tattoos of nude women on defendant’s thighs during prosecution for

aggravated sexual assault because appellate court did not believe the tattoos “would necessarily

sway a jury into resolving the case based on emotion rather than reason”). Finally, applying the

third factor, the testimony about the tattoos spanned only a few pages of the three-volume

reporter’s record of the guilt/innocence phase of trial. Therefore, minimal time was needed to

develop the evidence.

       Having considered the factors the trial court was required to balance in deciding to admit

the evidence under Rule 403, we cannot conclude the trial court abused its discretion in admitting

the testimony. Stacy’s third issue is overruled.

                                          CONCLUSION

       The judgment of the trial court is affirmed.

                                                    Rebeca C. Martinez, Justice

DO NOT PUBLISH



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