                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-16-00197-CR


AUSTIN TAYLOR COPPLE                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1411370D

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                        MEMORANDUM OPINION1

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      Appellant Austin Taylor Copple appeals his conviction for aggravated

assault with a deadly weapon.2 He contends that the evidence is insufficient to

support his conviction and that the trial court abused its discretion by admitting

the deadly weapon—a machete. We conclude that the evidence is sufficient to

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
support appellant’s conviction and that any error by the trial court in admitting the

machete is harmless. We therefore affirm the trial court’s judgment.

                                Background Facts

      Lance Boltz, a Bedford resident, owned a home repair and landscaping

business. Appellant occasionally worked for Boltz and lived with him for about a

month. Near 2 a.m. one day in the spring of 2015, after appellant had stopped

living with Boltz, appellant called him. Appellant asked Boltz to drive him to a job

later that morning. Boltz agreed to do so and picked appellant up from a house

in North Richland Hills. They both returned to Boltz’s house. According to Boltz,

he told Wesley Price, another houseguest, about appellant’s presence there. 3

Boltz then went into his room and fell asleep.

      Later, Boltz awoke when someone began repeatedly striking his head.

Through some light coming from a fish aquarium, Boltz saw a silhouette of his

attacker and of a machete that Boltz used in his lawn service business. Boltz

raised his hands to protect against the blows, but the attacker hit his hands with

the machete, and Boltz blacked out.

      When Boltz regained consciousness, he noticed that he was bleeding. He

got out of his bed and attempted to shut and lock his bedroom door, but

someone again began striking his head. From the limited light in the room,

including the aquarium light and light from a neighbor’s house, Boltz recognized

      3
        Price denied learning from Boltz that someone else was spending the
night in Boltz’s house, and he stated that he never saw appellant in the house.


                                         2
appellant as the attacker. Appellant was wearing the same clothes as when

Boltz had picked him up, including a dark shirt and a hunting vest. As appellant

continued striking Boltz, Boltz again blacked out.

      When Boltz came to, he walked into a bathroom, locked the door, and

realized that he had “a lot of blood profusely pouring down the front of [his] face.”

Price awoke and came to the bathroom, and Boltz asked Price to get help. Price

noticed that Boltz’s Samsung cell phone was missing, and Price went to another

house to get help. An ambulance arrived and transported Boltz to a hospital,

where he received treatment for injuries to several parts of his body.4

      Police officer Michael Kratky interviewed Boltz at the hospital.        Officer

Kratky saw that Boltz had several injuries and had been bleeding. Boltz told

Officer Kratky that appellant had attacked him.        At about 7 a.m. that day,

Detective Anthony Shelly received a call about the assault. He went to Boltz’s

house and saw blood covering floors, pillows, and sheets.

      Without any knowledge of what had occurred at Boltz’s house, Officer

Rodney Pace was working in Hurst and received a call about a man engaging in

suspicious acts there.      Officer Pace found appellant, who matched the

description given in the call. According to Officer Pace, appellant was “scratched

up” and had no shoes on.5 Officer Pace noticed that appellant “was obviously


      4
       The trial court admitted photographs depicting Boltz’s injuries.

      The jury saw photographs showing scratches on appellant’s arms and
      5

head along with a tear in the shirt he was wearing.


                                         3
high on some kind of drug.” Appellant could not provide a sensible story about

why he was there.

         Investigator Zachary Hicks became involved in the investigation into the

assault on Boltz. Looking for evidence related to the assault, he walked on a

path from Boltz’s house to where Officer Pace had found appellant.            In a

drainage area along that path, he found a machete, a Samsung cell phone

battery, and a package of bandages that matched a bandage that appellant had

in his pocket upon his arrest.

         When Boltz returned home from the hospital weeks later, he found the shirt

and vest that appellant had worn on the night of the assault. Those items were

“caked in blood.” He also found the Nike shoes that appellant had worn that

night.

         A grand jury indicted appellant for aggravated assault. The indictment

alleged that he had used the machete as a deadly weapon. It also contained a

habitual offender notice that alleged that he had been previously convicted of

burglary and manslaughter. Appellant received appointed counsel and pled not

guilty. After receiving the parties’ evidence and arguments, the jury deliberated

for less than an hour and found him guilty. During the punishment phase of the

trial, appellant pled true to the indictment’s sentence-enhancement allegations.

The jury received more evidence and arguments concerning his punishment and

assessed seventy-five years’ confinement. The trial court sentenced appellant

accordingly, and he brought this appeal.


                                          4
                            Evidentiary Sufficiency

      In his first issue, appellant contends that the evidence is insufficient to

support the jury’s guilty verdict. In our due-process review of the sufficiency of

the evidence to support a conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives

full play to the responsibility of the trier of fact to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v.

State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198

(2015).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.       See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict.   Murray, 457 S.W.3d at 448.       We must presume that the factfinder




                                        5
resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Id. at 448–49.

      Appellant argues that the evidence is insufficient to establish his identity as

Boltz’s attacker. The jury, however, received direct and circumstantial evidence

linking appellant to the attack.

      First, Boltz identified appellant at trial as his attacker, and the jury was

entitled to rely on that identification despite appellant’s challenge to it.6 See

Franklin v. State, 193 S.W.3d 616, 620 (Tex. App.—Fort Worth 2006, no pet.)

(“[T]he jury is free to accept or reject any or all of the evidence of either party,

and any or all of the testimony of any witness.”); see also Threadgill v. State, 146

S.W.3d 654, 663 (Tex. Crim. App. 2004) (relying on eyewitness testimony as

sufficient to show a defendant’s identity as a shooter). When the State asked

Boltz why he was sure that appellant rather than Price had attacked him, he

testified, “Due to the extraordinary amount of light that was coming in through the

doorway being open, the aquarium, plus the light from the neighbor’s [house],

[the] whole left side of [appellant’s] body was lit up.” The State asked Boltz how

precise his vision was that morning, and he responded, “It was good for one

reason. My eyes had . . . dilated to the darkness. And as I came out of what I




      6
       Appellant argues, in part, that Boltz’s eyewitness identification “is very
questionable . . . because of his drifting in and out of consciousness . . . and his
statement of blacking out at least three times.”


                                         6
assume was blacking out, . . . the aperture of my eye was open wide enough that

I could see very clearly . . . .”

       Second, circumstantial evidence supports appellant’s guilt.      The jury

learned that when Officer Pace found appellant, appellant had scratches and no

shoes. The jury could have rationally inferred that the scratches occurred during

the machete attack, and Boltz later found appellant’s shoes at his house.

Further, on the path from Boltz’s house to where Officer Pace found appellant,

the police found a machete and bandages that matched a bandage that appellant

had in his pocket upon his arrest. The police also found a Samsung cell phone

battery, and the jury heard that Boltz’s Samsung phone was missing after the

attack. Finally, and perhaps most significantly, when Boltz returned home from

the hospital, he found clothes that appellant had been wearing on the morning of

the attack, and those clothes were “caked in blood.”

       Considering this evidence and the remaining evidence in the record in the

light most favorable to the verdict, we conclude that a rational jury could have

found beyond a reasonable doubt that appellant committed aggravated assault

against Boltz. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray, 457

S.W.3d at 448. We overrule appellant’s first issue.

                              Admission of the Machete

       In his second issue, appellant argues that the trial court abused its

discretion by admitting the machete that Investigator Hicks found in the drainage

area. He contends that the machete was inadmissible because Boltz did not


                                         7
identify it as the one he owned and as the one used in the attack. We conclude

that appellant failed to preserve this complaint for our review because he failed to

object to testimony concerning the machete before and after the machete’s

admission.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely objection that states the specific grounds for the desired ruling

if they are not apparent from the context of the objection.         Tex. R. App. P.

33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert.

denied, 136 S. Ct. 1461 (2016). Furthermore, the preservation rule requires a

party to object each time objectionable evidence is offered unless the party has

obtained a running objection or has requested a hearing outside the presence of

the jury. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); see also

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (explaining that

Texas applies the “futility rule,” meaning that despite a trial court’s ruling that

evidence is admissible, a party must keep making futile objections on pain of

waiver). Unobjected-to testimony about objected-to evidence results in forfeiture

of the objection. See Clay v. State, 361 S.W.3d 762, 767 (Tex. App.—Fort Worth

2012, no pet.) (“[B]ecause Wallace provided testimony about the Louisiana

records without objection before and after appellant’s objection to the admission

of the records and because appellant failed to obtain a running objection, we

conclude that he forfeited his objection to the records’ admission.” (footnote

omitted)); see also Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. [Panel


                                          8
Op.] 1980) (holding that a complaint concerning the admission of LSD tablets

and marijuana was not preserved because “[a]ssuming there was some objection

to this evidence when offered, there was no objection to [a police officer’s]

testimony about finding the narcotics”); Ratliff v. State, 320 S.W.3d 857, 861

(Tex. App.—Fort Worth 2010, pet. ref’d) (“If the defendant waits until the State

offers the evidence at trial, the objection to the evidence must be made before a

witness gives substantial testimony about it.”); King v. State, No. 02-07-00172-

CR, 2008 WL 3918051, at *3 (Tex. App.—Fort Worth Aug. 26, 2008, pet. ref’d)

(mem. op., not designated for publication) (“When a party objects to the

admission of physical . . . evidence after a police officer has already testified

about finding the [evidence] without objection, nothing is presented for review.”).

      Before the trial court admitted the machete, Detective Shelly testified that

Investigator Hicks had found it. Investigator Hicks then testified about finding the

machete.    Later, the State asked a crime scene technician about where the

machete was found, and the trial court admitted, without objection, photographs

of the machete. Also without objection, the State published those photographs to

the jury. During the technician’s testimony, when the State offered the machete

as evidence, appellant objected on the grounds that the State had not shown that

the “weapon ha[d] anything to do with the [assault]” and that the weapon’s

prejudicial effect outweighed its probative value. The trial court overruled the

objection and stated on the record that the machete’s probative value




                                         9
outweighed any prejudicial effect. The State then asked the technician several

more questions about the machete without any further objection.

      Based on the authority cited above, we conclude that the unobjected-to

testimony about the machete before and after its admission forfeited appellant’s

objection. See Tex. R. App. P. 33.1(a); Marini, 593 S.W.2d at 714; Ratliff, 320

S.W.3d at 861; King, 2008 WL 3918051, at *3.7 We overrule his second issue.

                                 Conclusion

      Having overruled both of appellant’s issues, we affirm the trial court’s

judgment.


                                                 /s/ Terrie Livingston

                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and PITTMAN, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 6, 2017




      7
       Appellant also appears to argue that the trial court erred by commenting
that the machete’s probative value outweighed its prejudicial effect. Appellant
concedes, however, that he did not object to the comment and that an objection
was required to preserve error. We agree. See Tex. R. App. P. 33.1(a); Unkart
v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013). Thus, assuming that
appellant attempts to argue that the trial court’s comment serves as an
independent ground for reversal, we reject that contention.


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