Opinion
No. 05-14-01411-CR
02-29-2016
ANTHONY PHIFER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F14-75027-V
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Myers
Appellant Anthony Phifer was convicted by a jury of attempted unlawful restraint of a child younger than seventeen years of age and sentenced by the trial court to 300 days in the Dallas County Jail. In two issues, appellant contends the evidence is insufficient to prove he committed the offense and that the trial court erred when it admitted character testimony. As modified, we affirm the trial court's judgment.
DISCUSSION
I. Sufficiency of the Evidence
In his first issue, appellant alleges that the evidence was insufficient to prove he committed the offense of unlawful restraint. In reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). The jury is the exclusive judge of the weight and credibility of the evidence. See Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.—Dallas 2003, no pet.). We assume the jury resolved conflicts in testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determination of witness credibility. Brooks, 323 S.W.3d at 899.
The indictment against appellant alleged that, on or about May 27, 2013, in Dallas County, Texas, he did:
[T]hen and there intentionally and knowingly, by force and intimidation and deception, restrain [C], hereinafter called complainant, a child younger than 17 years of age, without the consent of complainant, by restricting the movements of said complainant and by moving said complainant from one place to another and by confining said complainant[.]The indictment also alleged appellant had twice before been convicted of two state jail felony offenses, forgery and unauthorized use of a motor vehicle.
A person commits the offense of unlawful restraint if he intentionally or knowingly restrains another person. TEX. PENAL CODE ANN. § 20.02(a) (West 2011). Under the Texas Penal Code, "restrain" means "to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person." Id. § 20.01(1). A child under the age of fourteen is not capable of giving consent to restraint. See id. § 20.01(1)(B)(i). The offense is a state jail felony if the person restrained was a child younger than seventeen years of age. Id. § 20.02(c)(1).
A person acts intentionally when he has a conscious objective or desire to cause the result of his conduct. Id. § 6.03(a). A person acts knowingly when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). Proof of a requisite culpable mental state is almost always proved by circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978); Watkins v. State, 333 S.W.3d 771, 781 (Tex. App.—Waco 2010, pet. ref'd). A person's knowledge and intent may be inferred from "the acts, words, and conduct of the accused." Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)).
The jury charge in this case included the lesser-included offense of attempted unlawful restraint. The jury convicted appellant of this offense. Under section 15.01 of the Texas Penal Code, which governs "Criminal Attempt," "[a] person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." TEX. PENAL CODE ANN. § 15.01(a) (West 2011). The punishment for an attempted offense "is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor." Id. § 15.01(d).
The evidence at trial showed that on May 27, 2013, nine-year-old C and her family were celebrating Memorial Day at their Dallas, Texas apartment. C had put on a new outfit and asked her aunt, Bessie Blake, who C regarded as her mother, for permission to show the outfit to her friend Meeka. Meeka was a woman who lived in a downstairs apartment near the upstairs apartment of C's family. C had befriended Meeka, who lived in the downstairs apartment with her husband and two children, and enjoyed playing with her newborn son.
Meeka had previously introduced C and her family to appellant, Meeka's father, who also lived with her. Appellant was well-acquainted with C's family. According to Blake's testimony, he had been to their apartment "[t]oo many [times] to count, maybe 20" times.
When C arrived at Meeka's apartment that day, the door to the apartment was open. Appellant was inside the apartment watching television. C asked if Meeka was home. Appellant told C Meeka was not home but invited her into the apartment. He offered her some Oreo cookies, and C went into the kitchen to get the cookies. Appellant said, "[C]ome sit down and watch my phone." C responded, "[Y]es, sir," and sat down on the sofa while appellant went into the bathroom.
C did not hear the sound of the toilet flushing, but when appellant emerged from the bathroom his previously-buttoned shirt was unbuttoned. Seeing appellant's shirt unbuttoned made C nervous. Appellant sat down very briefly and then walked over to the door. C said that she should leave. Appellant replied, "Wait, I need you to do something for me."
C tried to leave through the open door, but appellant blocked her from leaving. She tried to get past him by moving to one side and then the other, but appellant moved his body to prevent her from getting past him. When C got close to the door, appellant grabbed her hair and pulled her back inside the apartment. One of C's shoes snagged on a part of the door frame and fell off as appellant jerked her toward him. C fell down and when she stood up, appellant held on to her, grabbing her by the arm and hair. C urinated on herself and yelled for help. A woman on the stairs outside the apartment looked back towards the direction of C's screams; appellant released C, and she dropped the cookies and ran home.
C's cousin, Donyell Smith, who C considered to be like an older sister, was outside the family's apartment smoking a cigarette when she saw C running up the stairs screaming, crying, and shaking. Smith testified that C "was real hysterical." She jumped on Smith's lap and grabbed her around the neck, after which Smith immediately noticed C had urinated on herself.
Another of C's cousins, Christopher Albert, who C considered to be like an older brother, was also sitting outside and saw C run up the stairs. He recalled that "[s]he was looking frantic, like she was scared, like something was wrong with her." C told them what had happened with appellant at Meeka's apartment.
Smith testified that C was fair-skinned and could bruise easily, and that she saw redness on C's arm--as if she had been grabbed. Albert saw bruising around C's arm. Blake, who also witnessed these events, likewise noticed there were bruises on C's arm, "like somebody was trying to hold her."
Appellant then appeared from around the corner. He was holding a bag of cookies in his hand. There was a wet spot on the crotch area of his pants.
Albert confronted appellant. Appellant started backing away and became defensive. Albert punched him. Meeka arrived during the fight and called 9-1-1 using Smith's phone. Meeka provided the 9-1-1 operators with a false name for appellant and left before the officers arrived. Blake also called the police after hearing what had happened.
Dallas Police Officer Brian Halpain and his partner, Officer Casey Tharp, responded to the 9-1-1 call at the apartment complex and spoke to C, Blake, and Albert. They also attempted to make contact with appellant, but he was not at the downstairs apartment. Officer Halpain testified that he and his partner "took a glimpse" at C but did not notice any injuries on her arms. He did not take any photographs of C.
Detective Jessica Montgomery-Criddle, with the Child Exploitation Unit of the Dallas Police Department, was assigned the case. She spoke to Blake and scheduled a forensic interview for C at the Dallas Children's Advocacy Center, which took place approximately two weeks later. Detective Criddle prepared a warrant for appellant's arrest. The initial charge was attempted unlawful restraint, but it was later changed to unlawful restraint of a child under 17 years of age.
The jury could have rationally concluded from this evidence that appellant, acting with the specific intent to restrain C so as to substantially interfere with her liberty, tried but failed to confine her. See TEX. PENAL CODE ANN. §§ 15.01(a), 20.01(1), 20.02(a). Appellant attacks the credibility of the evidence supporting the verdict, but the jury was the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See Harvey, 135 S.W.3d at 717. Although Officer Halpain and his partner did not see any injuries on C's arms, he testified that they only "took a glimpse" at her. The jury could have chosen to rely instead on C's testimony that appellant grabbed her by the hair and the arm, and the testimony from Smith, Albert, and Blake that they saw bruising or redness on C's arm—as if someone was trying to grab her. In addition, the jury could have inferred appellant's specific intent to restrain from his acts, words, and conduct, see Hart, 89 S.W.3d at 64, including the fact that his shirt was unbuttoned and that he told C he needed her to "do something for me," as well as blocking C's exit from the apartment and grabbing her by the arm and the hair. Viewed in the light most favorable to the verdict, the evidence is sufficient to support the jury's verdict. We overrule appellant's first issue.
II. Bessie Blake's Testimony
In his second issue, appellant argues the trial court erred by admitting testimony concerning his character. The State responds that appellant failed to preserve error and that, alternatively, the error was harmless.
Bessie Blake, C's biological aunt, testified that she saw C run home from Meeka's apartment, crying, and that she heard C say that a man would not let her go. Blake testified that she asked C, "What man?" C responded, "Meeka's dad." Blake went on to tell the jury that she knew Meeka's father by the nickname "Cowboy," and that he had been to their home "[t]oo many [times] to count, maybe 20." The record then reads as follows:
Q. [PROSECUTOR:] In that 20 times-- during those 20 times or however many times he may have been to your apartment, was there anything about him or that he said that made you question him?
[DEFENSE COUNSEL]: I'm going to object to the relevance.
THE COURT: May I see the lawyers, please.
(At the bench, off the record.)
THE COURT: Overruled.
Q. [PROSECUTOR:] Ms. Bessie, was there ever a time that the defendant said something that you felt wasn't quite right about [C]?
A. [BESSIE BLAKE:] He was overly friendly. Let me explain a little bit. He always was real helpful. He would come maybe try to hook up a TV antenna or fix a DVD player or he would offer to walk her to the nail shop or he wanted to take the kids to the movies or take them somewhere. He was just overly friendly.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard, and may not reverse the judgment if the trial court's decision is within the zone of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). To preserve a complaint for appellate review, the record must show that a specific and timely complaint was made to the trial court and that the trial court ruled on the complaint. TEX. R. APP. P. 33.1; see Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009). Moreover, the point of error on appeal must comport with the objection made at trial. Lovill, 319 S.W.3d at 691-92; Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
Appellant argues in his brief that the above-quoted portion of Blake's testimony "went exclusively to [a]ppellant's character, specifically implying [a]ppellant was attracted to children or had an improper attraction to children." He also complains that the evidence "was highly inflammatory and cast [a]ppellant in the light of a child predator." But appellant did not object in the trial court based on rules 403 or 404(b)--the grounds he argues on appeal. See TEX. R. EVID. 403; TEX. R. EVID. 404(b). His only objection was to relevance. Neither a contention based on rule 404(b) nor an argument under rule 403 was preserved by his relevance objection. See, e.g., Sony v. State, 307 S.W.3d 348, 355-56 (Tex. App.—San Antonio 2009, no pet.) (relevance objection to photographs at trial did not preserve appellate argument based on rule 403); Cavazos v. State, No. 07-12-00224-CR, 2014 WL 1881691, at *2 (Tex. App.—Amarillo May 8, 2014, no pet.) (mem. op., not designated for publication) (rule 404(b) and rule 405 complaints not preserved by relevance objection); Jackson v. State, No. 05-10-00763-CR, 2012 WL 592730, at *3 (Tex. App.—Dallas Feb. 23, 2012, no pet.) (mem. op., not designated for publication) (argument under rule 404(b) not preserved by relevance objection); see also Bargas v. State, 252 S.W.3d 876, 898 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (because appellant did not object at trial on the basis of rule 405(b), he waived complaint about admissibility of excluded evidence under that rule); Gamble v. State, No. 02-07-174-CR, 2009 WL 806879, at *7 (Tex. App.--Fort Worth March 27, 2009, pet. ref'd) (mem. op., not designated for publication) (argument that admission of evidence violated rules 403, 404, and 405 not preserved because appellant did not so object at trial). Any complaint under rule 403 or rule 404(b) was, therefore, not preserved for appellate review. We overrule appellant's second issue.
III. Modification of Judgment
Appellant's conviction for attempted unlawful restraint of a child under the age of 17 subjects him to the sex offender registration requirements in Chapter 62 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC ANN. art. 62.001(5)(E)(ii) ("'reportable conviction or adjudication' [for purposes of sex offender registration program] means a conviction or adjudication . . . based on . . . a violation of Section 20.02 (Unlawful restraint) . . . if . . . the order in the hearing or the papers in the case contain an affirmative finding that the victim or intended victim was younger than 17 years of age"). At sentencing, the trial court stated that "[a]s requested by the State, I will put in the judgment the fact that the victim was a child under the age of 17," and that the court was going to deliver to the defendant that day an admonishment form regarding his duty to report as a sex offender. When asked whether he understood this requirement, appellant responded, "Yes, sir." The clerk's record includes a "Court's Admonition to Sex Offenders" form signed by appellant and his counsel on October 22, 2014, the day of the sentencing hearing. The judgment, however, incorrectly states that the "Sex Offender Registration Requirements do not apply to the Defendant," and states "N/A" for the age of the victim at the time of the offense.
Accordingly, the judgment will be modified to show that the sex offender registration requirements apply and that the age of the victim was younger than 17 at the time of the offense. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd); see also Zambrano v. State, 05-12-01632-CR, 2014 WL 1022386, at *9 (Tex. App.—Dallas Feb. 12, 2014, no pet.) (not designated for publication) (modifying judgment to show applicability of sex offender registration requirements and age of victim); Jackson v. State, Nos. 05-12-00041-CR, 05-12-00042-CR, & 05-12-00043-CR, 2012 WL 5359513, at *2 (Tex. App.—Dallas Oct. 31, 2012, no pet.) (mem. op., not designated for publication) (same).
As modified, we affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
141411F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F14-75027-V.
Opinion delivered by Justice Myers. Justices Fillmore and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
"Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. Chapter 62" should be changed to "Sex Offender Registration Requirements apply to the Defendant. TEX. CODE CRIM. PROC. Chapter 62"As REFORMED, the judgment is AFFIRMED. We direct the trial court to prepare a new judgment that reflects this modification. Judgment entered this 29th day of February, 2016.
"The age of the victim at the time of the offense was N/A" should be changed to "The age of the victim at the time of the offense was younger than 17 years of age."