Dorissa Collins v. The State of Texas--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00222-CR

Dorissa Collins,

Appellant

v.

The State of Texas,

Appellee

 

 

From the 82nd District Court

Falls County, Texas

Trial Court No. 8209

MEMORANDUM Opinion

 

A jury convicted Dorissa Collins of assault on a public servant and sentenced her to forty years in prison. She presents three issues on appeal: (1) the trial court allowed the State to amend the indictment in violation of her substantial rights; (2) extraneous offense evidence was improperly admitted; and (3) the State engaged in improper jury argument during the punishment phase of trial. We affirm.

AMENDMENT OF THE INDICTMENT

In her first issue, Collins contends that the trial court erred by allowing the State to amend the indictment at the close of evidence.

The indictment alleged that Collins:

intentionally, knowingly, or recklessly cause[d] bodily injury to Yolanda Attaway by striking Yolanda Attaway in the face, and the defendant did then and there know that the said Yolanda Attaway was then and there a public servant, to-wit: a Responsible Psychotherapist employed by the Texas Department of Criminal Justice Correctional Institution Division, and that the said Yolanda Attaway was then and there lawfully discharging an official duty, to-wit: examining inmates

(Emphasis added). At trial, the evidence demonstrated that Attaway is employed by the University of Texas Medical Branch, which contracted with the TDCJ. At the conclusion of its case in chief, the State moved to abandon the above italicized language as surplusage. Collins objected that this implicates [her] right to be informed of the nature of the accusation against her under the Sixth Amendment of the United States Constitution and Article 1, Section 10 of the Texas Constitution and violates her right to be notified of the charges against her. She argued that her defense was built around the indictment, wherein the State placed her on notice that it intended to prove that Attaway was a TDCJ employee. The trial court overruled the objection and granted the State s request. Collins filed a motion for new trial complaining that the amendment violated article 28.10(b) of the Code of Criminal Procedure, the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, and article I, sections 10, 13, 14, and 19 of the Texas Constitution. The trial court denied the motion. On appeal, Collins complains that the trial court s ruling implicated a multitude of constitutional and statutory rights: her right to notice of the charges against her; her right to effective assistance of counsel; her right to present a defense; her right to confront the evidence against her; and her basic right to a fair trial.

Preservation

The State argues that Collins objection at trial was made on state and federal constitutional grounds, while her appeal is based on state law grounds; thus, her objection at trial does not comport with her objection on appeal. We agree.

Collins trial objection alleged a violation of her rights under the Sixth Amendment and article 1, Section 10 of the Texas Constitution. Although her motion for new trial raised additional grounds, an objection must be raised at the earliest opportunity or as soon as the grounds for objecting become apparent. See Moore v. State, 999 S.W.2d 385, 403 (Tex. Crim. App. 1999); see also Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). Collins needed to make her objections at a time when the trial court was in a proper position to do something about it. Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005). Any constitutional or state law grounds became apparent the moment the State sought leave to abandon the specific language in the indictment. Collins objections made in her motion for new trial simply came too late. See id. Accordingly, she has preserved this issue for appeal only to the extent she challenges the amendment to the indictment under the Sixth Amendment and article 1, section 10 of the Texas Constitution.

Amendment

The State contends that the removal of the language regarding Attaway s employer was an abandonment, not an amendment. According to the State, Attaway is a public servant by virtue of the services she performed, regardless of whether she was an employee of the TDCJ or an agent of the TDCJ. Thus, the State argues that it merely deleted one alternative when it abandoned the language in the indictment.

The abandonment of allegations in an indictment or information is appropriate when it: (1) abandons one or more alternative means of committing the offense; (2) reduces the charged offense to a lesser included offense; or (3) eliminates surplusage. See Eastep v. State, 941 S.W.2d 130, 135 (Tex. Crim. App. 1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000); see also Mayfield v. State, 117 S.W.3d 475, 476 (Tex. App. Texarkana 2003, pet. ref d); Hardie v. State, 79 S.W.3d 625, 632 n.1 (Tex. App. Waco 2002, pet. ref d). Surplusage includes allegations not essential to constitute the offense. Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000) (quoting Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975)).

Collins argues that the removal was an amendment because it is descriptive of two essential elements of the offense how she could be a public servant (describing the forbidden conduct) and what or how [Collins] would have known of [Attaway s] status (describing the culpable mental state). See Tex. Pen. Code Ann. 1.07(22) (Vernon Supp. 2007) ( Element of offense means: (A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense); see also Tex. Pen. Code Ann. 22.01(a)(1), (b)(1) (Vernon Supp. 2007) (a person commits the offense of assault on a public servant by intentionally, knowingly, or recklessly causing bodily injury to a person the actor knows is a public servant while the public servant is lawfully discharging an official duty). This exception to the surplusage definition is found in Burrell, 526 S.W.2d at 802. See Alston v. State, 175 S.W.3d 853, 855 (Tex. App. Waco 2005, no pet.) (Burrell exception provides that when an unnecessary allegation is descriptive of that which is legally essential to charge a crime, the State must prove it as alleged though needlessly pleaded ).

In Alston, the complaint and information alleged that Alston unlawfully appropriated property from the Marlin Volunteer Fire Department while he was a fireman with the Marlin Volunteer Fire Department. Id. at 854. Over Alston s objection, the trial court granted the State s request to strike the word Volunteer from both the complaint and information. Id. Alston argued that the Burrell exception prohibited the State from abandoning the term Volunteer. Id. at 855. However, we noted that the Court of Criminal Appeals has overruled the Burrell exception. See id. (citing Gollihar v. State, 46 S.W.3d 243, 250 (Tex. Crim. App. 2001)). We found that [t]he name of the agency from which Alston stole the property in question and the name of the agency by which he was employed were not essential to constitute the offense because they were not elements of the offense. Id. (citing Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) and Gollihar, 46 S.W.3d at 258). The allegations were surplusage and were properly abandoned. Id. (citing Eastep, 941 S.W.2d at 135, Mayfield, 117 S.W.3d at 476, and Hardie, 79 S.W.3d at 632 n.1).

Attaway s employer is not essential to determining whether she is a public servant or whether Collins knew she was a public servant. See Curry, 30 S.W.3d at 399; see also Alston, 175 S.W.3d at 855. We agree with the State that Attaway can still be a public servant whether acting as an actual employee of the TDCJ or a contract employee of the TDCJ.[1] See Tex. Pen. Code Ann. 1.07(41)(A) (Vernon Supp. 2007) ( Public servant includes an officer, employee, or agent of government ). The indictment tracked the statutory language of section 22.01, alleging that Attaway is a public servant, and adequately placed Collins on notice that the State intended to prove assault on a public servant. The removed language was properly abandoned as surplusage. See Alston, 175 S.W.3d at 855. We overrule Collins first issue.

Extraneous Offense Evidence

Collins second issue challenges the admission of extraneous offense evidence on grounds that it shows a propensity for violence.

Standard of Review

Extraneous-offense evidence is admissible under Rules 403 and 404(b) where (1) it is relevant to a fact of consequence in the case apart from its tendency to prove conduct in conformity with character; and (2) the probative value of the evidence is sufficiently strong so that it is not substantially outweighed by unfair prejudice. Johnston v. State, 145 S.W.3d 215, 220 (Tex. Crim. App. 2004). We review a trial court s admission of extraneous offense evidence for abuse of discretion. See Page v. State, 213 S.W.3d 332, 337-38 (Tex. Crim. App. 2006).

The Challenged Evidence

During the attack, Collins threatened to take [Attaway s] eye out, gouge [Attaway s] eyes out, and kill Attaway. After the attack and while being restrained by prison officials, Collins yelled obscenities and threats, including statements that Attaway got what she deserved and that assistant warden Irene Hamlin had it coming next. As she was being led away from the scene, Collins continued her ranting, during which she spit at Captain Tommy O Neal, and subsequently stated that she hoped Attaway had lost an eye. The State sought to introduce a videotape and testimony of the spitting incident.

At a hearing on admissibility of the videotape, Collins objected that: (1) the tape is irrelevant under Rule 401 because it fails to prove a fact in controversy; (2) the tape contains inadmissible character evidence under Rule 404(a) because it contains evidence of other crimes; (3) the tape s probative value is outweighed by its prejudicial effect; (4) the evidence does not fall within any exception to Rule 404(a); (5) the tape is inadmissible under 404(b); and (6) admission of the tape would violate her right to a fair trial under the state and federal constitutions. The State responded that the tape is: (1) relevant because Collins can be heard confessing; and (2) not character evidence because it goes to what immediately preceded the offense and is a continuation of the attack. The trial court overruled the objections and admitted the tape in part.

When correctional officer Celena Degrate sought to testify to the spitting incident, Collins objected that Degrate s testimony constituted extraneous offense evidence, failed to prove anything in issue, and does not fall within any of Rule 404(b) s exceptions. The State argued that the testimony is a continuation of the assault and shows intent, motivation against a public servant. The trial court overruled Collins objection. Collins requested a limiting instruction. Before the videotape was played, Collins renewed her objections from the hearing and further objected that the videotape was cumulative of the evidence that s already been presented and, under Rule 403, its probative value is outweighed by its prejudicial effect. The trial court overruled these objections and the tape was played. Degrate then testified that she saw Collins spit at O Neal. O Neal subsequently testified that Collins spit on him. Collins renewed her objection and requested a limiting instruction, which the trial court gave:

during the course of the trial, evidence was admitted that the Defendant has been accused of a crime, wrong, or other act other than the one currently being tried. This evidence is admitted for the sole purpose of aiding you, if it does, to prove intent in this matter. This is the sole purpose for the admission of this evidence and cannot be used by you for any other purpose than for which it is intended.

You are further instructed that you may not consider this evidence unless you also find beyond a reasonable doubt that the Defendant committed this crime, wrong, or act.

O Neal further testified that Collins struck his hat when she spit on him. This portion of the tape was played for the jury.

Relevance

The State argues that the evidence constitutes same transaction contextual evidence and tends to prove motive and intent.

Evidence of other crimes, wrongs or acts is admissible under Rule 404 if the evidence has relevance apart from character conformity. Tex. R. Evid. 404(b). Extraneous offense evidence may be admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. This list is neither mutually exclusive nor collectively exhaustive. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). An other crime, wrong, or act may have relevance apart from character conformity; that it tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g., absence of mistake or accident. Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Montgomery v. State, 810 S.W.2d 372, 388-89 (Tex. Crim. App. 1990) (op. on reh g)).

Same transaction contextual evidence is admissible to show the context in which the criminal act occurred. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). [E]vents do not occur in a vacuum, and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that it may realistically evaluate the evidence. Id. Same transaction contextual evidence is admissible where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993); Wyatt, 23 S.W.3d at 25.

This is not a case where the assault and the spitting incident are so intermixed, blended, or connected that they form an indivisible criminal transaction. See Rogers, 853 S.W.2d at 33; see also Wyatt, 23 S.W.3d at 25-26. Therefore, evidence regarding the spitting incident is not admissible as same transaction contextual evidence.

To be admissible under Rule 404(b), the spitting incident would have to establish an evidentiary fact. See Wyatt, 23 S.W.3d at 25-26. According to the State, the evidence establishes motive and intent. However, the trial court limited the jury s consideration of extraneous offense evidence to the issue of intent. We will focus our analysis on whether the evidence was admissible to show intent.

Hamlin testified that Collins had previously sought a transfer to another unit. O Neal testified that Collins had approached him about a transfer and that her request was denied. He further testified that inmates will sometimes act out in order to get what they want. Billy Stone, a staff psychotherapist, confirmed that Collins wanted a transfer and had indicated that she would do whatever necessary to obtain a transfer. Stone testified that his department has the authority to recommend a transfer and that Attaway, his supervisor, may overrule his recommendation. Barbara Tiller, a staff nurse, testified that Collins blamed Attaway s department for keeping her in trouble with security and causing her to be written up; this was psych s fault.

The jury could infer that Collins intended to attack Attaway because she was angry over the failed transfer request and intended to cause injury to Attaway in an attempt to be transferred from the unit. Her conduct towards O Neal addresses this intent to lash out at any individual she held responsible for the denial of her requested transfer and to act out in any manner needed to obtain the desired transfer. Her actions following the assault tend to establish an evidentiary fact, i.e. her intent at the time of the offense. See Wyatt, 23 S.W.3d at 25-26. The State was thereby authorized to introduce evidence of the spitting incident to show intent. See Tex. R. Evid. 404(b); see also Wyatt, 23 S.W.3d at 25-26. We cannot say that the trial court abused its discretion by admitting this evidence on the issue of intent.

Unfair Prejudice

Whether the probative value of the evidence is outweighed by the danger of unfair prejudice depends on: (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; and (4) the proponent s need for the evidence. Prible, 175 S.W.3d at 733.

Probative Value

This factor looks to the evidence s probativeness or how compellingly the evidence serves to make a fact of consequence more or less probable. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). In light of our determination that the spitting incident was admissible to show intent, the inherent probative value of the evidence was great. This factor favors admissibility.

Potential to Impress the Jury

Unfair prejudice refers only to relevant evidence s tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. Id. Although evidence of the spitting incident could potentially impress the jury, it is not of such a nature as to impress the jury in an irrational or indelible way. See id. at 440-41. This factor favors admissibility.

Time Needed to Develop the Evidence

This third factor looks to the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense. Id. at 441. The State first showed the tape during Degrate s testimony of the assault. After the tape was played, Degrate testified that she observed Collins make gestures towards O Neal and spit at O Neal, but she was not sure whether Collins actually struck O Neal. O Neal testified next, stating that Collins spit on him, striking his hat, when being lead away from the scene. O Neal added that he ducked when Collins spit at him. The tape was then played for the second time, during which O Neal showed the jury where on the tape that the spitting occurred. This testimony from O Neal and Degrate composes only a few pages of the record and the spitting incident consumes only a few seconds of the tape itself. Although Collins verbal rantings, evidenced by the videotape, were mentioned during closing arguments, the spitting incident was not mentioned. The record simply does not indicate that the time needed to develop this evidence was such that the jury would be distracted from the indicted offense. This factor favors admissibility.

Need for the Evidence

The proponent s need for the evidence encompasses the issues of whether the proponent has other evidence establishing this fact and whether this fact is related to a disputed issue. Id. Although the evidence is relevant to Collins intent, several witnesses identified Collins as Attaway s attacker. Witnesses testified that Collins was upset about not receiving a transfer, blamed prison employees for receiving continued write-ups, and planned to do whatever necessary to obtain a transfer. The jury could infer Collins intent to attack and injure Attaway. This factor weighs against admissibility.

Nevertheless, the above factors as a whole weigh in favor of admissibility. See id. at 441-42. The trial court did not abuse its discretion by allowing the complained of evidence and Collins substantial rights were not violated by its admission. We overrule issue two.

JURY ARGUMENT

In her third issue, Collins contends that the trial court improperly overruled her objection to the State s closing argument at the punishment phase of trial. We review a trial court s rulings on objections to argument for abuse of discretion. See Cole v. State, 194 S.W.3d 538, 546 (Tex. App. Houston [1st Dist.] 2006, pet. ref d); see also Montgomery v. State, 198 S.W.3d 67, 95 (Tex. App. Fort Worth 2006, pet. ref d).

Analysis

During closing, the State argued:

Now, let s just assume that you disagree with the evidence and that you find that she was only convicted of one of the prior enhancements; she wasn t convicted of ag assault or she wasn t convicted of assault on a public servant. You believe she was just convicted of one of those two. That is paragraph two. And in that one, the appropriate punishment would be a range from two to 20 years. But remember, you re going -- in order to get there, you re going to have to find beyond a reasonable doubt that those didn t occur, that she s not the same person.

Collins objected that the argument [s]hifts the burden to the Defendant and is a misstatement of the State s burden. The trial court overruled the objection. The State continued: And if you don t believe that she was ever convicted before, although this offense happened while she was incarcerated at TDCJ, then the range of punishment would be two years to 10 years

The State concedes that it misstated the burden of proof and that the trial court should have sustained Collins objection, but contends that the error was harmless. When addressing harm, we consider: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000); Zunker v. State, 177 S.W.3d 72, 84 (Tex. App. Houston [1st Dist.] 2005, pet. ref d).

First, the State s error took place once and was not repeated. It does not amount to severe conduct. Second, having overruled Collins objection, the trial court took no curative measures. Neither did the State attempt to cure its mistake. However, the proper burden of proof was emphasized by the defense counsel in closing, the State in rebuttal, and the trial court s jury charge.[2]

Third, it is doubtful that the State s error contributed to Collins punishment. The evidence established Collins intent to harm Attaway and her motive for doing so. The jury saw photographs of Attaway s injuries and heard evidence that Attaway suffered some permanent damage to her eye. The State presented evidence that Collins was angry because her request to be transferred to a different unit had been denied and she blamed various prison employees, including the psychotherapists, for receiving write-ups. Penitentiary packets were admitted into evidence showing that Collins had previously pleaded guilty to both aggravated assault and assault on a public servant.[3] The jury was instructed to assess twenty-five to ninety-nine years or life if it found, beyond a reasonable doubt, that both the enhancements are true. Although the jury so found, it sentenced Collins to forty years in prison, the middle of the applicable punishment range.

After considering these three factors, we cannot conclude that the State s error affected Collins substantial rights. We overrule issue three.

Having overruled Collins three issues, we affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment. A separate opinion will not follow.)

Affirmed

Opinion delivered and filed July 23, 2008

Do not publish

[CRPM]

 

[1] In fact, the record establishes that Attaway was a public servant, i.e., a contract employee for the TDCJ who wore a badge identifying her status as such. See Tex. Pen. Code Ann. 22.01(d) (Vernon Supp 2007) ( the actor is presumed to have known the person assaulted was a public servant, a security officer, or emergency services personnel if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer or emergency services personnel ); see also Ascencio v. State, No. 11-06-00341-CR, 2008 Tex. App. Lexis 3683, at *5-6 (Tex. App. Eastland May 22, 2008, no pet. h.) (not designated for publication) (nurse wore identifying badge, was a contract employee through UTMB with the TDCJ, and was presumed to be a public servant); Buster v. State, 144 S.W.3d 71, 80-81 (Tex. App. Tyler 2004, no pet.) (jury could conclude that UTMB employee assigned to TDCJ unit was a public servant).

[2] Defense counsel stated:

Everything that you do still has to be looked at through that prism of beyond a reasonable doubt. And you have evidence. You have evidence in front of you that Dorissa Collins, there s an accusation that she s twice been convicted of a felony offense and the State brought you some proof or some evidence to show you that maybe or maybe not.

You still get to decide what facts are true in this case and you still have to look at that beyond a reasonable doubt. If you re not convinced beyond a reasonable doubt, you cannot find it true. That s the law. That s your oath to follow the law.

You don t have to just feel confident about it, you have to be convinced beyond a reasonable doubt.

The State further explained:

You should feel confident and beyond a reasonable doubt that that Defendant is the same Defendant in these two judgments. And you can t look for a reason, if you do believe beyond a reasonable doubt that she s one and the same, not to find the enhancement paragraphs true.

The trial court instructed the jury that: (1) to find the enhancement paragraphs true, it must find beyond a reasonable doubt that Collins is the same person who was convicted in the offenses alleged in the enhancement paragraphs; and (2) it must find the allegations not true if it did not find beyond a reasonable doubt that Collins was convicted as alleged in the enhancement paragraphs.

[3] Collins argues that the State failed to connect her to the first packet through fingerprints and attempted to connect her to the second packet based on an identification number. Collins objected to the packets at trial. The first packet contained a photograph. The State s expert witness compared Collins known prints to the prints in the second packet and determined that the prints matched. The use of fingerprint comparisons and pictures of the defendant are recognized methods of proving the defendant is the person who committed the previous crimes. Reynolds v. State, 227 S.W.3d 355, 362 (Tex. App. Texarkana 2007, no pet.).