Opinion
No. 08-14-00108-CR
09-21-2016
KYRON ELDON CHILD A/K/A KYRON ELDON CILD, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from Criminal District Court No. 1 of Tarrant County, Texas (TC # 1324778D) OPINION
Kyron Eldon Child appeals his convictions of aggravated assault with a deadly weapon (Count I) and unlawful possession of a firearm by a felon (Count II). Each conviction is enhanced by a final felony conviction. A jury found Appellant guilty of Counts I and II, found the enhancement paragraph true, and assessed his punishment at imprisonment for eighteen years on Count I and for three years on Count II. For the reasons that follow, we affirm.
FACTUAL SUMMARY
In April 2013, Marcus Fuller and his family were living at the Luxury Inn in Fort Worth, Texas. Fuller paid the rent for the room on a day-to-day basis. When Fuller went to pay his rent on the morning of April 30, 2013, the motel manager told him that he and his family needed to leave the premises because Fuller had been permitting other people to visit and stay overnight in the room. Fuller called his fiancé at work and told her what had happened.
Appellant, who was working at the Luxury Inn, subsequently approached Fuller and told him they needed to vacate the premises. Fuller felt that Appellant was being disrespectful and trying to "scare him off the premises", and the two men began cursing at each other. Fuller tried to walk away, but Appellant followed him and they began to fight. The fight broke up and Fuller went back towards his room to gather his belongings and leave. Fuller was standing outside of his room and talking to his brother, Eric, when Appellant walked up and pointed a handgun at Fuller. Appellant fired two shots at Fuller. Both shots missed Fuller and he fled the immediate area.
That same afternoon, Detective Christopher Britt of the Fort Worth Police Department went to the scene and spoke with the motel manager, Fuller, and Appellant. Appellant was placed under arrest for aggravated assault with a firearm. Appellant waived his Miranda rights and made a voluntary statement. Appellant admitted that he confronted Fuller with a gun and fired it into the ground with the intent to scare Fuller. The police recovered two 9 mm casings at the motel, but they never recovered the weapon.
Appellant was charged by indictment with aggravated assault with a deadly weapon (Count I), possession of a firearm by a felon (Count II), and deadly conduct (Count III). The jury acquitted Appellant of deadly conduct (Count III), but it found him guilty of Counts I and II.
PRIOR CONVICTIONS
In Issues One through Seven, Appellant contends that the trial court abused its discretion by admitting evidence of seven prior convictions during the punishment phase because the State failed to present evidence linking him to the convictions. The State responds that the trial court properly admitted State's Exhibits 29, 30, 31, 32, 33, 34, and 35 because sufficient evidence, including the defendant's name, date of birth, unique CID number, and unique SID number, linked those seven judgments of conviction to Appellant.
Standard of Review and Relevant Law
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. Both elements are often proved through introduction of a certified copy of a final judgment and sentence but this is not the only mode of proof. Id. The State may also prove these elements through (1) the defendant's admission or stipulation, (2) testimony by a person who was present when the person was convicted of the specified crime and can identify the defendant as that person, or (3) documentary proof (such as a judgment) that contains sufficient information to establish both the existence of a prior conviction and the defendant's identity as the person convicted. Id. These methods are not exclusive.
The evidence used to link a prior crime to a defendant often "resembles pieces of a jigsaw puzzle." Human v. State, 749 S.W.2d 832, 835-36 (Tex.Crim.App. 1988). "The pieces standing alone usually have little meaning." Id. at 836. "However, when the pieces are fitted together, they usually form the picture of the person who committed the alleged prior conviction or convictions." Id. The trier of fact fits the pieces of the jigsaw puzzle together and weighs the credibility of each piece. Flowers, 220 S.W.3d at 923.
Appellant does not challenge the sufficiency of the evidence linking him to these seven prior convictions. He instead challenges the trial court's decision to admit the evidence in the first place. We review the trial court's decision to admit evidence for an abuse of discretion. See Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010).
The Evidence
Appellant did not object to the admission of a fingerprint card for an individual known as "Kyron Eldon Cild" also known as "Kyron Eldon Child" (State's Exhibit 24), the known prints of Appellant (State's Exhibit 23), and documents pertaining to three prior convictions (State's Exhibits 18, 25, and 26). This evidence provides significant pieces of the puzzle.
Deputy Paul Rojas of the Tarrant County Sheriff's Department testified as a fingerprint expert during the punishment phase. Rojas explained that every person arrested in Tarrant County is assigned a unique Tarrant County identification number, known as the CID, which follows that person through the criminal justice system. Likewise, the Texas prison system also assigns a unique identification number to every inmate who goes through the state prison system. This is known as the SID.
Deputy Rojas identified State's Exhibit 24 as the fingerprint card kept on file by the Tarrant County Sheriff's Department for a person identified as "Kyron Eldon Cild" also known as "Kyron Eldon Child." The CID number associated with this individual is 0623168. Rojas compared the fingerprints on State's Exhibit 24 with the known prints of Appellant contained on State's Exhibit 23, and he determined that both sets of fingerprints were made by the same person, Appellant. State's Exhibit 24 also reflected CID number 0623168.
State's Exhibit 18 is a packet containing a docket sheet, indictment, judgment, and sentence in cause number 1099499 showing a person named "Kyron Eldon Cild" as the person convicted in that case. The date of judgment is July 27, 2009. The CID number on State's Exhibit 18 is 0623168, which is the same CID number found on State's Exhibit 24. State's Exhibit 18 also showed "Kyron Eldon Cild" had a unique SID number of "TX07127732." Rojas compared the fingerprints on State's Exhibit 18 with the known prints of Appellant and concluded that they were made by the same person.
State's Exhibit 25 is a pen packet from the Texas Department of Criminal Justice for the state jail felony offense of possession of cocaine. The defendant's name is "Kyron Eldon Cild." State's Exhibit 25 contains a judgment of conviction and a set of fingerprints. Rojas compared the fingerprints found on State's Exhibit 25 with the known prints of Appellant (State's Exhibit 23) and he concluded that the same person made the fingerprints associated with each exhibit.
State's Exhibit 26 is a pen packet from the Texas Department of Corrections containing a judgment and sentence for "Kyron Eldon Child a/k/a "Kyron Eldon Cild" for the state jail felony crime of possession of cocaine. The exhibit included a set of fingerprints. Rojas compared the fingerprints found in State's Exhibit 26 with Appellant's known prints (State's Exhibit 23) and concluded that the fingerprints found on State's Exhibit 26 were made by Appellant.
Deputy Rojas was unable to compare the known prints of Appellant to the prints associated with State's Exhibits 29 through 35 due to the poor quality of the prints contained on the documents. Consequently, the State had to rely on other evidence to link the exhibits to Appellant.
State's Exhibit 29
State's Exhibit 29 is a packet of documents including a docket sheet, indictment, and a judgment of conviction for delivery of heroin for a defendant named "Kyron Eldon Cild." The case number reflected on the docket sheet, indictment, and judgment is 1099498D and the trial court is the 297th District Court of Tarrant County, Texas. The date of judgment is July 27, 2009. Appellant's unique CID number of 0623168 is shown on the face of the indictment. Further, the SID number shown on the judgment is TX07127732. This is the same SID number as shown on the judgment in State's Exhibit 18 which was connected to Appellant by fingerprint comparison. Additionally, the birth date reflected on State's Exhibit 29 is the same date of birth reflected on Appellant's records with the Tarrant County Sheriff's Office. The trial court did not abuse its discretion by admitting State's Exhibit 29 because the State sufficiently linked the conviction to Appellant through the combination of information.
State's Exhibit 30
State's Exhibit 30 is a packet of documents for a person named "Kyron Eldon Cild." The packet consists of a docket sheet, indictment, and judgment for the offense of unlawful possession of a firearm. The case number reflected on the docket sheet, indictment, and judgment is 1099497D and the trial court is the 297th District Court of Tarrant County, Texas. As was the case with State's Exhibit 29, Appellant's unique CID number of 0623168 is shown on the indictment, and the judgment reflects the same unique SID number as State's Exhibit 18. State's Exhibit 30 is further connected to Appellant because it reflects that the named individual has the same birth date as Appellant. Finally, the date of the judgment for State's Exhibit 30 is the same date found on State's Exhibits 18 and 29. In other words, all three cases were resolved on the same day in the 297th District Court. The trial court did not abuse its discretion by finding that the State sufficiently linked the conviction to Appellant.
State's Exhibit 31
State's Exhibit 31 is a packet consisting of a docket sheet, indictment, and judgment of conviction for possession of cocaine. The name of the defendant is "Kyron Eldon Child." State's Exhibit 31 is connected to Appellant because the indictment bears the same unique CID number as the one found on State's Exhibits 23 and 24 (0623168), and the defendant has the same name and date of birth as Appellant. The trial court did not abuse its discretion by overruling Appellant's objection and admitting this exhibit.
State's Exhibit 32
State's Exhibit 32 is a packet of documents consisting of a docket sheet, complaint, information, and judgment of conviction for the misdemeanor offense of possession of marihuana. The name of the defendant is Kyron Eldon Cild, but the indictment and judgment reflect that the defendant's true name is Kyron Eldon Child. The judgment reflects the same unique CID number as the one found on State's Exhibit 18 which was proven to be connected to Appellant by means of fingerprint comparison. Further, the defendant convicted in State's Exhibit 32 has the same name and date of birth as Appellant. Because the evidence is sufficient to link the conviction to Appellant, the trial court did not abuse its discretion by admitting it.
State's Exhibit 33
State's Exhibit 33 is a packet of documents consisting of a docket sheet, and the complaint and information for the misdemeanor offense of failure to identify. The docket sheet reflects that the defendant, Kyron Eldon Cild, admitted his guilt and his guilt for the offense was taken into consideration in the assessment of the sentence in cause number 1188743. The docket sheet, complaint, and information each reflect the unique CID number associated with Appellant. Further, the defendant has the same name and date of birth as Appellant. The trial court did not abuse its discretion by overruling Appellant's objection and admitting State's Exhibit 33.
State's Exhibit 34
State's Exhibit 34 is a packet of documents consisting of a docket sheet, complaint and information, and a judgment of conviction for the misdemeanor offense of possession of marihuana. The defendant's name is Kyron Eldon Cild, and the case number is 1188743. The docket sheet, charging instruments, and judgment all bear the unique CID number associated with Appellant. The judgment also reflects Appellant's unique SID number. Further, the defendant has the same name and date of birth as Appellant. The trial court did not abuse its discretion by finding that this exhibit is sufficient connected to Appellant.
State's Exhibit 35
State's Exhibit 35 is a packet of documents consisting of a docket sheet, complaint and information, and a judgment of conviction for the misdemeanor offense of possession of marihuana. The defendant's name is Kyron Eldon Cild, but the judgment recites that the defendant's true name is Kyron Eldon Child. The judgment reflects the unique CID and SID numbers proven to be associated with Appellant. As was the case with the other exhibits, the birth date of the named defendant is the same as Appellant's birth date. The trial court did not abuse its discretion by overruling Appellant's object and mitted State's Exhibit 35. Having found no abuse of discretion in the admission of these exhibits, we overrule Issues One through Seven.
ADMISSION OF THE 911 CALL RECORDING
In Issue Eight, Appellant argues that the trial court abused its discretion by admitting the 911 call recording over his hearsay objection. The State offered the 911 call recording (State's Exhibit 2) as a business record under TEX.R.EVID. 803(6), but Appellant objected to the entire exhibit because the statements made by the 911 callers were hearsay and inadmissible under Rule 803(6). The trial court overruled the objection and admitted State's Exhibit 2.
Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). An abuse of discretion occurs if the court's decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008). An evidentiary ruling must be upheld if it is reasonably supported by the record and correct on any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008).
Present Sense Impression
Hearsay is a statement, other than one made by the declarant while testifying at trial, offered into evidence to prove the truth of the matter asserted. TEX.R.EVID. 801(d). It is generally inadmissible unless a statute or the Rules of Evidence provide a specific exception permitting its admission. TEX.R.EVID. 802. Rule 803(1) provides an exception for a present sense impression. TEX.R.EVID. 803(1). A present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. TEX.R.EVID. 803(1). The 911 callers were describing the events which occurred at the Luxury Inn either while they were perceiving it or immediately thereafter. The trial court did not abuse its discretion by overruling Appellant's hearsay objection and admitting State's Exhibit 2. See Reyes v. State, 314 S.W.3d 74, 78 (Tex. App.--San Antonio 2010, no pet.)(holding that statements made by 911 caller regarding a person limping and needing an ambulance were admissible under the present sense exception to hearsay rule). Issue Eight is overruled. Having overruled each issue presented on appeal, we affirm the judgment of the trial court. September 21, 2016
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)