Opinion
No. 05-18-01232-CR
03-10-2020
CHARLES WAYNE PHIFER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F-1800169-H
MEMORANDUM OPINION
Before Justices Myers, Schenck, and Carlyle
Opinion by Justice Schenck
Charles Wayne Phifer appeals his conviction for the capital murder of his girlfriend's four-year-old daughter, L.W. In eight issues, appellant argues (1) the evidence is legally insufficient to establish he committed the offense, (2) he was harmed by the prosecutor's reference to him as a drug dealer, (3) the State illegally intercepted his jail mail, (4) the trial court should have submitted a jury question on a lesser-included offense, (5) trial court judge bias, (6) prosecutorial vindictiveness, (7) late revelation of discovery, and (8) the sentence imposed is unconstitutional. By cross-issue, the State urges the judgment should be modified to reflect the trial court judge assessed punishment. We affirm appellant's conviction as modified by this opinion. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
During the early morning hours of Sunday, March 13, 2016, four-year-old L.W. died after sustaining multiple blunt-force injuries. Appellant and L.W.'s mother, Jeri, were charged with her murder. Jeri accepted a plea bargain, and appellant entered a plea of not guilty and proceeded to trial before a jury. The jury found appellant guilty of the offense charged and the trial court imposed a mandatory sentence of life imprisonment without parole. TEX. PENAL CODE ANN. § 12.31(a)(2). The trial court certified appellant's right to appeal.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant urges the evidence is legally insufficient to support a conviction of capital murder because it hinged entirely on the uncorroborated accomplice-witness testimony of Jeri. The State responds urging there is sufficient non-accomplice evidence that tends to connect appellant to the capital murder of L.W. We agree with the State.
A. Standard of Review
A conviction cannot rest on the testimony of an accomplice unless corroborated by other evidence "tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC. ANN. art. 38.14. Under this rule, the reviewing court eliminates all of the accomplice testimony from consideration and then examines the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating evidence need not be sufficient by itself to establish guilt, rather there simply needs to be other evidence tending to connect the defendant to the offense. Id. We look at the particular facts and circumstances of each case and consider the combined force of all the non-accomplice evidence that tends to connect the accused to the offense. Medrano v. State, 421 S.W.3d 869, 883 (Tex. App.—Dallas 2014, pet. ref'd). "Judicial experience shows no precise rule can be formulated as to the amount of evidence that is required to corroborate the testimony of an accomplice." Id. We view the corroborating evidence in the light most favorable to the jury's verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (citing Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)).
B. Evidence at Trial
The State called Jeri, Jeri's mother, first responders, detectives, and medical professionals to testify at trial. Appellant did not testify and did not call any witnesses. Rather, his strategy was to attack the credibility of Jeri and her testimony against him.
1. Jeri's Testimony
Appellant was Jeri's boyfriend. Jeri had several children with different fathers, none of whom was appellant, and a history of illegal drug use. In September 2015, appellant moved into Jeri's deceased grandmother's house in which Jeri, L.W. and D.C., Jeri's youngest child, were living. In November 2015, Jeri, L.W., and D.C. moved into Jeri's mother's home, and appellant continued to reside at Jeri's deceased grandmother's home. Jeri visited that house regularly to use drugs with appellant. Sometimes her children were present.
According to Jeri, the week before L.W.'s death, L.W. had been talking back, acting out and "doing things" to get attention. On Friday, March 11, 2016, L.W. was not feeling well and vomited in her bed. L.W. had a bump and a bruise on the right side of her head from a fall the previous day, but no other marks or bruises on her body. That morning, Jeri and L.W. went to her deceased grandmother's house, picked up appellant, and took appellant to an appointment. Thereafter, they returned to Jeri's deceased grandmother's house and then drove to Fort Worth to buy heroin. They returned to the house, and appellant and Jeri shot up. Around 4:00 or 4:30 p.m., they went to Fort Worth again to buy heroin, then returned to the house and again shot up.
Sometime between 1:00 and 4:00 p.m., Jeri tried to feed L.W. some soup, but she did not want to eat because she was sick. Jeri was frustrated with L.W. and spanked her on the back of the legs with a bamboo switch appellant had cut from a tree in the backyard. Both Jeri and appellant had used the switch on L.W. before. Around 6:30 p.m., Jeri and L.W. left and went back to Jeri's mother's house. Jeri and her mother tried to feed L.W. She would not eat. Jeri spanked L.W. twice on the bottom with a belt and laid her down on her mother's couch. About an hour later, Jeri picked up appellant and they went to get money from appellant's mother, who lived in Irving. Afterwards, they went to Fort Worth to buy more drugs, then returned to Jeri's deceased grandmother's house to inject heroin. Jeri returned to her mother's house at around 4:00 a.m. L.W. was asleep on the couch so Jeri picked her up and carried her to her bed.
At around noon on Saturday, March 12, Jeri, L.W. and D.C. went to Jeri's deceased grandmother's house. Jeri took heroin with appellant while the children played. Around 1:30 p.m., Jeri and D.C. went back to Jeri's mother's house while L.W. remained with appellant. Appellant had agreed to watch L.W. while Jeri ran errands. At the time Jeri left, L.W. was breathing, talking, and acting normally.
Jeri left D.C. with her mother, picked up lunch at Wendy's, purchased Pedialyte for L.W., and then returned to her mother's house. Around 3:30 p.m., Jeri returned to her deceased grandmother's house and dropped off the Pedialyte for L.W. At that time, L.W. was watching television and seemed the same as before, but appellant was making her stand up as punishment for vomiting. Appellant injected Jeri with heroin and then Jeri returned to her mother's house and took a nap. A few hours later, Jeri called to check on L.W., and appellant said she was doing fine.
That evening, Jeri went to dinner at a steakhouse in Arlington with her parents and D.C. Afterwards, Jeri took D.C. to her mother's house and put him to bed and, between 9:00 and 9:30 p.m. returned to her deceased grandmother's house to get high with appellant. After Jeri and appellant injected heroin, Jeri asked appellant about L.W. and he told her she was in the closet in the living room. When appellant opened the door, Jeri saw L.W. was bound at the wrists with electrical wire and "strung up" to the coat rod with old belts, which prevented L.W. from sitting down. Jeri asked appellant to take L.W. down, and appellant untied her. Jeri noticed L.W. had additional bruising on the side of her face and eye. Jeri tried to feed L.W. a peanut butter sandwich, but she had difficulty eating it. Appellant put on gloves, pulled L.W. up by the face, and poured Pedialyte down her throat. L.W. began vomiting again, and appellant picked her up by the throat, threw her in the small living room closet and shut the door. Jeri heard L.W. impact the wall inside the closet after appellant threw her inside.
Eventually, appellant pulled L.W. out of the closet. L.W. had urinated and vomited all over herself, so Jeri bathed her in the shower. While Jeri was getting clothes for L.W., she heard appellant's voice in the bathroom say, "Get you some of this." She saw appellant walk out of the bathroom and then heard L.W. collapse in the tub. Jeri ran to the bathroom and, as she was trying to dry off and dress L.W., L.W. fell unconscious in her arms. Jeri attempted to give L.W. CPR and yelled to appellant to call 9-1-1. According to Jeri, he replied, "She is just faking it." When Jeri told appellant that L.W. was not breathing, he called 9-1-1. Before the police and paramedics arrived, appellant told Jeri that she needed to make up something to tell the police.
2. Evidence Presented by Other Witnesses
During the 9-1-1 call, appellant told the dispatcher that L.W. was having difficulty breathing. One of the dispatchers gave appellant medical instructions over the phone to help L.W. until the ambulance could arrive. From what the dispatchers could hear over the phone, it did not sound like he actually executed any of the instructions or passed them along to Jeri, who could be heard in the background.
Andrew Grondin, a firefighter and paramedic, was one of the crew dispatched to the house following the 9-1-1 call. He observed a 4-year-old girl lying on her back in the hallway. She was cold to touch and not breathing. She had a black eye and bruising on 75 percent of her face. She also had bruising on her arms and what appeared to be ligature marks on her wrists. Grondin asked the two adult occupants of the house what had happened. They did not respond. Another firefighter told Grondin that the two adults had reported that the child had been playing at a friend's house and had been dropped off at the house with her injuries.
After CPR was unsuccessful, first responders transported L.W. to a hospital. Jeri asked to ride with her in the ambulance. Given the severity of L.W.'s injuries, Grondin told Jeri that she needed to stay behind and talk to the police officers that were on the way. At the hospital, a trauma team gave L.W. medicine to try to get her heart restarted and continued resuscitation efforts for approximately thirty minutes, but eventually ended their efforts and pronounced L.W. dead.
Police Officer Karl Buresh arrived at Jeri's deceased grandmother's home just after the ambulance left. Jeri was standing at the threshold of the front door speaking with another officer, and appellant was sitting on a chair inside the home. Jeri was frantic and had a difficult time answering the officers' questions due to her emotional state. Appellant was calm and showed a total lack of emotion. Jeri and appellant both told officers that L.W. had been at a friend's house in Cedar Hill for the last two days. According to them, L.W. came home with bruises on her face that they believed had been inflicted by the friend's older sister. They explained that L.W. asked to take a shower and, during the shower, Jeri heard a noise and found L.W. had collapsed in the shower.
After Jeri's initial lie to the police, she decided she needed to tell the police what really happened. Shortly after her initial conversation with the officers, she asked to speak to another officer privately. Sergeant Tracy Hinson took Jeri to one of the police vehicles, away from appellant, and spoke with her privately. Jeri was upset and crying and told Sergeant Hinson that she was afraid of appellant. She also stated that her previous story about what happened to L.W. was a lie. Sergeant Hinson asked Jeri to tell him about the events leading up to L.W.'s collapse. Jeri told him that she had dropped L.W. off at the house around noon. She said she returned to her mother's house, where she lived, and her mother asked her to pick up lunch at Wendy's. She picked up lunch and returned to her mother's home where she had lunch with the family. She said she had a phone conversation with appellant about getting Pedialyte for L.W., so she bought Pedialyte and brought it over to her deceased grandmother's house around 3:30 p.m. She said she stayed for about 15 minutes and then returned to her mother's house, where she took a nap. She then called appellant to check on L.W. Later that evening, she went to dinner with her family at a steakhouse in Arlington and returned to her deceased grandmother's home around 9:15 p.m. When she arrived, she noticed injuries to L.W.'s buttocks, legs, and face. She asked appellant what happened, and he told her L.W. had "gotten out of line" so he had to give her a spanking. He also told her that she and L.W. were not leaving. At that point, L.W. was still talking and breathing and asked to take a shower. Jeri also told Sergeant Hinson about some of the behavioral challenges she had been experiencing with L.W. in the preceding weeks. She also told Sergeant Hinson that L.W. was a victim of sexual abuse, possibly by the other side of the family, and had been acting out.
Jeri agreed to go to police headquarters and spoke with Brad Makovy, the lead detective. During her first interview, Jeri provided the same description of the events leading up to L.W.'s injuries as she had provided to Sergeant Hinson, but also told Detective Makovy about finding L.W. tied up in the closet, about her making L.W. a peanut butter sandwich, about appellant putting on gloves and pouring Pedialyte down L.W.'s throat, and about appellant throwing L.W. in the closet. At the end of the interview, Jeri asked if they had an update on L.W.'s condition, and Detective Makovy informed her that L.W. had passed away.
During the days and weeks following L.W.'s death, Jeri gave several additional police interviews and cooperated with the police investigation. During the additional interviews, Jeri admitted that she had previously kicked L.W., hit her in the chest, "popped" her in the mouth, spanked her with a belt, and struck her with a bamboo switch to discipline her for not eating.
Police officers interviewed Jeri's mother. Her description of the events the day before and the day L.W. was fatally injured was consistent with Jeri's. She was present on Friday morning when Jeri discovered L.W. had vomited in her bed. They were confused and concerned as to why L.W. was vomiting. Jeri's mother also saw L.W. on Friday evening after she had taken a bath and put on her nightgown. L.W. had a bump and bruise on her face from a previous fall, but did not have any other bruising, whip marks, or ligature marks on her body on Friday, March 11. Jeri's mother did not see L.W. on Saturday. Jeri was at her house around lunch time and left for about an hour to take Pedialyte to L.W. That evening, they went to dinner at a steakhouse, but L.W. did not go. After dinner, they went home and put D.C. to bed and Jeri left the house around 9:00 p.m. The next time Jeri's mother spoke with Jeri was Sunday morning when she picked her up at the police station. During the car ride home, Jeri admitted that she had been using heroin and described the events the night before that caused L.W.'s death.
The police obtained surveillance footage from the Wendy's restaurant showing Jeri driving through and making a purchase on Saturday, March 12 around the time Jeri specified during her interviews. The police obtained the credit card receipt from the steakhouse, dated March 12 and signed by Jeri's step-father. The police also spoke with the server who waited on Jeri and her family, and he identified Jeri as being one of the individuals present at dinner.
The police photographed the crime scene and collected several pieces of physical evidence, including a bamboo switch with a blood stain and gloves containing a stain that smelled and looked like vomit. They also found a towel and little girls' pants intertwined with three belts in the small closet in the living room. The police observed a large indentation in the wall inside the closet and cut out a portion of the wall to preserve as evidence. On the dining room table they found a bottle of Pedialyte. They also found a loaf of bread and knife containing a substance that appeared to be peanut butter. They observed stains on the carpet under the dining room table and in the hallway leading to the bathroom. They collected fingernail clippings from Jeri and appellant as well as DNA samples from Jeri, appellant and L.W.
Most of the collected items were submitted for DNA testing. The non-frayed end of the bamboo switch contained a mixture of two DNA profiles. The major contributor to the mixture was consistent with the DNA profile of L.W. and a minor contributor was consistent with the DNA profile of Jeri. The frayed end of the bamboo switch contained a mixture of at least three DNA profiles, though no known individuals could be included or excluded. The DNA found inside the left glove was a mixture and the profile of the major contributor was consistent with the DNA profile of appellant. L.W. and Jeri were excluded as contributors to the mixture. The DNA on the inside of the right glove was a mixture from at least two contributors. Jeri was excluded as a contributor to the mixture, but appellant and L.W. could not be excluded. The vomit stain on the outside of the right glove was a mixture and the major contributor to that mixture was consistent with the DNA profile of L.W. Appellant and Jeri were excluded as contributors to the stain.
The blue belt found in the living room closet contained a DNA mixture from three contributors. Jeri was excluded as a contributor, but L.W. and appellant could not be excluded. The two black belts that were found in the closet contained a DNA mixture from at least three contributors, but no conclusions could be drawn due to the complexity of the mixture. A hair that was recovered from the closet wall was consistent with the DNA profile of L.W. The stains on the carpet in the hallway and below the dining room table were consistent with the DNA profile of L.W.
Appellant's left fingernail clippings contained a DNA mixture from at least three contributors. Jeri was excluded as a contributor, but L.W. could not be excluded. Appellant's right fingernail clippings contained a DNA mixture from two contributors, Jeri was excluded but L.W. could not be excluded. Jeri's left fingernail clippings contained a DNA mixture from two contributors the major contributor was consistent with the DNA profile of Jeri. L.W. and appellant were excluded as minor contributors.
The police obtained appellant's and Jeri's cell phones and submitted them to a digital forensics expert to extract the information contained on each phone. The police also obtained appellant's and Jeri's cell phone records from their service provider. Text messages between appellant and Jeri showed that they had been discussing how frustrated they were with L.W.'s behavior and continuous vomiting. Appellant also discussed the issue with his mother and encouraged her to reach out to Jeri because he thought Jeri would be receptive to discussing the issue with his mother.
Heather Lane, a criminal intelligence analyst, utilized the call detail records associated with appellant's cell phone to create a map and diagram of appellant's cell phone activity on March 11 and 12. The map showed appellant's cell phone hit on cell towers in Fort Worth around 1:00 p.m., 4:30 p.m., and 11:00 p.m. on Friday, March 11, 2016, consistent with Jeri's testimony that they traveled to Fort Worth around those times to purchase heroin. The map showed appellant's cell phone hit on a cell tower close to his mother's house in Irving from 10:35 p.m. to 10:47 p.m. on March 11. The diagram of appellant's cell phone activity on Saturday, March 12 showed appellant's cell phone hit on the cell tower closest to the offense location the entire day. The cell phone records reflect that there was a call from Jeri to appellant at 1:57 p.m., which was consistent with Jeri's testimony concerning a telephone call about Pedialyte. There was a call from Jeri to appellant at 5:48 p.m., which was consistent with Jeri's testimony she called appellant to check on L.W. before she went to dinner with her family. The last call that day was from Jeri to appellant at 9:03 p.m.
An autopsy was performed on L.W. The medical examiner noted L.W. had multiple blunt force traumatic injuries to her head, face, torso, and extremities. She had extensive bruising and abrasions all over her face. On the right side of her face, L.W. had abrasions along the brow line, check bone, jaw and chin, as well as inside the ear. On the left side of her face, she had a large bruise over the eye extending to the scalp and abrasions over the left eye, cheek, chin, and in her left ear. The bruising on L.W.'s face alone indicated that she had sustained a minimum of 12 blows to the head and face.
There were bruises and abrasions on L.W.'s shoulders, chest, thighs, and knees and linear abrasions on her left lower abdomen that appeared to have been caused by an object. She had abrasions and bruises on both forearms and bruising on both wrists consistent with a ligature. On the back side of her body, L.W. had well over 30 linear abrasions and dermal contusions, which was consistent with her being hit repeatedly with a narrow cylindrical object, like a bamboo stick. L.W. also had extensive bruising all over her back, buttocks, and the back of her legs. L.W. suffered major blood loss from the bruising. The medical examiner explained that if a bruise has changed color to yellow, brown, or green, it is at least a day-and-a-half old. Only one of L.W.'s bruises had changed color, so the remaining bruises occurred sometime within the 36 hours preceding her death. The medical examiner testified that many of the abrasions on L.W.'s body occurred within 15 to 20 minutes of her death.
An internal examination of L.W. revealed significant blunt force traumatic injuries to the head and abdomen. The medical examiner found bleeding on the surface of the brain. He estimated that this blunt-force head trauma occurred 10 minutes to a few hours before L.W.'s death.
The medical examiner found a large amount of blood in the mesentery of the small bowel. This was caused by a significant blunt abdominal injury that compressed her bowel and mesentery between her abdominal wall and spine. She also had a small laceration in the small bowel that was leaking the bowel contents, an injury which appeared to have occurred before the other trauma to her abdomen, approximately a day or two before.
The medical examiner concluded the manner of L.W.'s death was homicide and the cause of death was blunt force trauma of the abdomen and head. He indicated L.W.'s injuries were consistent with someone striking her against a wall or an unknown object, and striking her with a hand, a belt, and a stick.
C. Sufficiency of the Evidence
Viewed in the light most favorable to the verdict, the non-accomplice evidence showed L.W.'s life threatening injuries were inflicted on Saturday, March 12. L.W.'s grandmother was with L.W. multiple times the day before. Her testimony established that the only injury L.W. exhibited at that time was a bump and bruise on her face from a previous fall. In stark contrast, first responders discovered L.W. in the early morning hours of March 13 with obvious trauma-related injuries over the majority of her face and body. More particularly, the trial testimony of first responders and the medical examiner established that L.W. had bruising on 75 percent of her face, significant bruising and abrasions all over her body, ligature marks on her wrists, and numerous wounds on her back consistent with having been beaten with a stick. The medical examiner testified that L.W.'s bruises were inflicted sometime within the day-and-a-half before L.W.'s death. He also testified that L.W.'s abrasions occurred near the time of death and the significant blunt-force head trauma, one of the primary causes of her death, occurred 10 minutes to a few hours before her death.
Appellant's cell phone records indicated that his cell phone hit on the cell tower closest to offense location all day on Saturday, March 12 and in the early morning hours of March 13, during which time it appears the majority of the injuries were inflicted upon L.W. During the early morning hours of March 13, appellant texted his mother that there was some "bad shit" going on at the house and that he would text her when the police left. In addition, there was evidence L.W. vomited and that her behavior was frustrating to appellant and Jeri. Appellant's frustration with L.W.'s behavior was evidence of motive, and his presence at the scene of the offense the entire day, including when the police arrived, showed he had the opportunity to inflict the fatal injuries. Smith v. State, 332 S.W.3d 425, 442-47 (Tex. Crim. App. 2011) (motive and opportunity may be considered in connection with other evidence that tends to connect accused to crime); Richardson v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993) (proof accused was at or near scene of crime at or about time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to crime so as to furnish sufficient corroboration to support conviction); Franklin v. State, No. 05-11-00990-CR, 2012 WL 4801522, at *4 (Tex. App.—Dallas Oct. 10, 2012, no pet.) (not designated for publication) (noting non-accomplice testimony placed defendant at or near the scene of the crime at or about the time of its commission under suspicious circumstances).
The recording of appellant's 9-1-1 call was introduced into evidence. It established one of the dispatchers gave appellant medical instructions, but it did not sound as though he actually executed any of them or passed them along to anyone else. At the scene, the firefighters and police observed that appellant exhibited a total lack of emotion and showed no interest in accompanying L.W. to the hospital. Appellant's presence at the scene, coupled with his seemingly indifferent behavior regarding L.W.'s well-being is evidence that tended to connect appellant to L.W.'s murder. See Smith, 332 S.W.3d at 445 (behavior before and after murders constituted an independent circumstance that tended to connect defendant to murders).
Appellant initially told police that L.W. had been at a friend's house and was dropped off at their front door with her injuries. First responders found this explanation to be implausible, given the extent of L.W.'s injuries. This implausible explanation was probative evidence of wrongful conduct and can be considered as a suspicious circumstance tending to connect him to the offense. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
Although appellant argues much of the non-accomplice testimony equally could connect Jeri to the crime, "when there are two permissible views of the evidence (one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense), appellate courts should defer to the view of the evidence chosen by the fact-finder." Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009); Patterson v. State, No. 05-13-00450-CR, 2015 WL 2400809, at *6 (Tex. App.—Dallas May 19, 2015, pet. ref'd) (not designated for publication) (concluding that despite conflicting testimony, the jury was free to believe one version over the other and the non-accomplice testimony tended to connect defendant to offense). Moreover, non-accomplice evidence substantiated Jeri's statements concerning her whereabouts on the date that the majority of the injuries were inflicted upon L.W. and established her limited time at the offense location during the critical hours.
Thus, viewing the non-accomplice evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found the non-accomplice evidence tended to connect appellant to the offense. Accordingly, we overrule appellant's first issue.
II. OPENING STATEMENT
In his second issue, appellant argues he suffered harmful error when the State referred to him as Jeri's heroin dealer during its opening statement. The complained of statement was made in the following context.
Ultimately, ladies and gentlemen, we don't know if [L.W.] died because of the blood in her brain or the blood in her belly or the blood in her muscle tissue from where she had been beaten so badly. But one of those blunt force injuries caused her death. So there will be questions at the end. There will be no question that this man, her mother's boyfriend, her mother's Heroin dealer caused the death of this little girl.Defense counsel objected to this comment as "interjecting extraneous offenses, extraneous bad acts." The trial court overruled the objection.
We review the trial court's rulings concerning opening statements for an abuse of discretion. Milton v. State, 572 S.W.3d 234, 241 (Tex. Crim. App. 2019). The opening statement should inform the jury of the nature of the accusation against the defendant and the facts that the State in good faith expects to prove. TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(3). When evidence about a matter mentioned in opening is properly admitted in a trial, the prosecutor's mention of the evidence during opening statement is not error. Banks v. State, 643 S.W.2d 129, 133 (Tex. Crim. App. 1982).
Evidence was admitted at trial without objection that appellant reintroduced Jeri to heroin and that appellant was the one who injected her with the substance. The State's reference to appellant as Jeri's heroin dealer was a literal reference to the fact that appellant was the person who administered heroin to Jeri each time she used it. Accordingly, the reference to appellant being Jeri's heroin dealer during opening was not error. We overrule appellant's second issue.
III. JAIL MAIL
In his third issue, appellant asserts the State illegally intercepted a letter he wrote while in jail to his mother containing racist jokes and that the State's possession of the letter impacted, in part, his decision not to testify at trial because he was afraid the State would call his mother to testify at trial and would use the letter to paint her as a racist and a bad mother. He claims, had the State assured him that it would not call his mother to testify at trial, he would have testified. The State responds asserting, in part, that appellant failed to preserve this complaint for appeal. For the following reasons, we need not determine whether appellant's motion for new trial raising the issue for the first time was timely and actually presented to the trial court.
Pretrial detainees and prisoners do not enjoy the same constitutional protections as un-incarcerated individuals. Hudson v. Palmer, 468 U.S. 517, 524- 26 (1984). The need for jail and prison administrators to maintain order and prevent criminal activity requires a greater ability to monitor activities of inmates than that which would be permitted by police in society at large. See id. at 529. Legitimate penological concerns regarding security, order, and rehabilitation permit prison officials to read all incoming and outgoing general correspondence. Busby v. Dretke, 359 F.3d 708, 720-21 (5th Cir. 2004). Doing so is not a violation of a defendant's constitutional rights. See Stroud v. United States, 251 U.S. 15, 21-22 (1919) (no violation of defendant's Fourth or Fifth Amendment rights where letters were seized by the jail, turned over to the district attorney, and admitted at trial); Busby, 359 F.3d at 721 (seizure of defendant's jail letters did not violate First Amendment rights and admission of the letters at trial did not violate due process); Altizer v. Deeds, 191 F.3d 540 (4th Cir. 1999) (opening and inspecting inmate's outgoing mail does not violate First Amendment); Brown v. State, 334 S.W.3d 789, 805 (Tex. App.—Tyler 2010, pet. ref'd) (seizure of defendant's mail not a violation of Fourth Amendment); Thomas v. Allsip, 836 S.W.2d 825, 828 (Tex. App.—Tyler 1992, no writ) (no violation of inmate's constitutional rights by prison officials reading inmate's non-legal mail).
While appellant claims the State's interception of his jail mail was a violation of his Sixth and Eighth Amendment rights, he provides no authority to support such an assertion. The Sixth Amendment provides a right to: (1) a speedy trial, (2) public trial, (3) impartial jury trial in the place where the crime was committed, (4) be informed of the charges, and (5) confront the witnesses against him and to subpoena witnesses. U.S. CONST. Amend. VI. The Eighth Amendment prohibits the imposition of excessive bail, excessive fines, or cruel and unusual punishments. U.S. CONST. Amend. VIII.
Additionally, the monitoring of inmate mail is specifically provided for by the administrative code. See 37 TEX. ADMIN. CODE § 291.2. Under this provision, correspondence to and from governmental officials, court officials, the media, and the inmate's attorney is privileged; however, all other correspondence is considered non-privileged. Id. § 291.2(2). All non-privileged mail, both outgoing and incoming, may be opened and read. Id. § 291.2(3). Appellant does not appear to challenge the jail's ability to monitor his non-privileged mail and to turn over information to the district attorney, rather, he appears to object to the State's ability to obtain this information on its own accord by direct interception of jail phone calls, mail, and visitor logs of defendants. We need not determine whether the district attorney's office is entitled to intercept information as claimed by appellant, because there is no evidence in the record to support appellant's contention such interception occurred.
Because jail officials could legitimately read appellant's mail and, under the practice and discipline of the prison, it could furnish it to the district attorney, no unreasonable search and seizure or violation of First Amendment rights occurred. See Stroud, 251 U.S. at 21-22; Busby, 359 F.3d at 721. We overrule appellant's third issue.
IV. Jury Charge
In his fourth issue, appellant contends the trial court erred in refusing his request for a jury instruction on the lesser-included offense of reckless injury to a child.
A defendant is entitled to an instruction on a lesser-included offense if (1) the proof necessary to establish the charged offense also includes the lesser offense and (2) if the record contains some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in Rodriguez v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1987). If the charged offense includes the lesser offense, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Cavazos, 382 S.W.3d at 383. The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Id. at 385. We review a trial court's decision to submit or deny a lesser-included offense instruction for an abuse of discretion. Treadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004).
An offense will be a lesser-included offense when it is established by proof of the same or less than all the facts required to establish the commission of the charged offense. TEX. CODE CRIM. PROC. ANN. art. 37.09(1). To determine whether an offense qualifies as a lesser-included offense, courts use the cognate-pleadings approach. Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) (op. on reh'g). An offense is a lesser-included offense of another offense if the indictment for the greater-inclusive offense either: (1) alleges all of the elements of the lesser-included offense, of (2) alleges elements plus facts from which all of the elements of the lesser-included offense may be deduced. Id. at 273. If this analysis supports a determination that the requested lesser offense is a lesser-included offense, the court will move to the second step of the test and consider whether a rational jury could find that, if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).
Appellant was charged with capital murder for intentionally or knowingly causing the death of an individual under ten years of age. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(8). Appellant requested and was denied a jury instruction on reckless injury to a child. A person commits the offense of injury to a child if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, causes serious bodily injury to a child. Id. § 22.04(a)(1). Serious bodily injury is defined in the penal code as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(46). A person acts recklessly when "he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or will occur." Id. § 6.03(c). Thus, injury to a child is a lesser-included offense of capital murder. Martin v. State, 246 S.W.3d 246, 265 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Thus, appellant was entitled to a jury instruction on this offense if there was some evidence that would permit a rational jury to find that he is guilty only of the lesser offense. Id.
The trial court submitted a jury instruction on the lesser-included offense of knowingly or intentionally causing serious bodily injury to a child. The jury rejected this lesser offense and found appellant guilty of the charged offense.
In support of the second prong of the Almanza test, appellant argues the evidence of his intent was primarily derived from the testimony of Jeri's uncorroborated testimony. As we previously stated, the State presented evidence corroborating Jeri's testimony through first responders, detectives and the medical examiner from which appellant's intent can be derived. Appellant further states his alleged acts more clearly fit the definition of injury to a child with a reckless mens rea. Appellant does not support this statement with any reference to evidence presented at trial. In fact, appellant did not present any evidence at trial. Throughout the entire trial, appellant's defense was that he did not commit any acts of violence against L.W., rather it was Jeri who inflicted the fatal injuries. In Bignall v. State, the Court of Criminal Appeals concluded "if a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing that he is guilty only of a lesser-included offense, than a charge on a lesser-included offense is not required. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (quoting Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985)). Accordingly, we find appellant's argument is not supported by evidence and, because appellant's defense at trial was that he did not commit the acts against L.W., a charge on a lesser-included offense was not required. See id.
Moreover, given the nature and the extent of the injuries L.W. suffered, we conclude a jury could not have concluded the individual who inflicted them was merely reckless with regard to the result of his or her conduct. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ("Injury to a child is a result-oriented offense requiring a mental state that relates not to the specific conduct but to the result of that conduct.").
We overrule appellant's fourth issue.
V. JUDICIAL BIAS
In his fifth issue, appellant urges the trial court judge demonstrated bias when he made the following statement after the jury returned its verdict in this case:
Mr. Phifer, in 28 years of practicing criminal law and handling hundreds of murder cases, I thought I'd seen it all, and I've seen some pretty bad stuff. I think this is the worst case that I've ever seen. What you did was unfathomable, inhuman and savage. You and Jeri did monstrous things to that little girl. Life in prison seems insufficient. Hanging a little girl in a closet is savage. You should die in a locked closet just -- if TDC had one, but they don't have one for you, unfortunately. Life in prison doesn't seem like enough for you, but nonetheless, that's the punishment that you're getting.
Due process requires a neutral and detached hearing body or officer. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). A defendant has an absolute right to an impartial judge at both the guilt-innocence and punishment phases of trial. Segovia v. State, 543 S.W.3d 497, 503 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Absent a clear showing of bias, a trial court judge's actions will be presumed to have been correct. Brumit, 206 S.W.3d at 645. To reverse a judgment on the ground of improper conduct or comments of the judge, we must be presented with proof (1) that judicial impropriety was in fact committed, and (2) of probable prejudice to the complaining party. Id. Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Id. Sims v. State, No. 05-18-00139-CR, 2018 WL 6333250, at *2 (Tex. App.—Dallas Nov. 29, 2018, no pet.) (mem. op., not designated for publication).
Judicial remarks may suggest improper bias if they reveal an opinion deriving from an extrajudicial source, but when no extrajudicial source is alleged, such remarks will constitute grounds for reversal only if they reveal such a high degree of favoritism or antagonism as to make a fair judgment impossible. Brumit, 206 S.W.3d at 645. To constitute bias clearly on the record, the deep-seated antagonism must be apparent from the judicial remarks themselves, without "interpretation or expansion" by an appellate court. Gaal v. State, 332 S.W.3d 448, 457 (Tex. Crim. App. 2011).
In this case, appellant does not allege that the trial court judge's remarks revealed an opinion derived from an extrajudicial source; therefore, he must show that the trial court displayed a deep-seated favoritism or antagonism that would make fair judgment impossible. See Brumit, 206 S.W.3d at 645. As we have noted recently, best practice would suggest a judge should ordinarily refrain from sharing his or her thoughts in many instances where doing so presents risks of necessitating a painful retrial process. While the trial court judge's comments here were harsh, the timing of the comments (after appellant's guilt was determined) and the overall state of the evidence does not indicate a bias that so affected the proceedings as to require reversal. There was ample evidence of appellant's guilt and his sentence of life imprisonment without parole was mandated by statute and not subject to judicial discretion. TEX. PENAL CODE ANN. § 12.31(a)(2). Accordingly, we overrule appellant's fifth issue.
VI. PROSECUTORIAL VINDICTIVENESS
In his sixth issue, appellant contends the State's decision to upcharge him from injury to a child to capital murder more than a year later may constitute prosecutorial vindictiveness. The State responds by urging appellant failed to preserve this complaint for review.
As a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court. TEX. R. APP. P. 33.1(a). Except for complaints involving systemic requirements, or rights that are waivable only, all other complains, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with rule 33.1(a). Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004).
In this case, the trial court neither disregarded an absolute requirement (such as jurisdiction over the subject or person), nor denied appellant a waivable-only right (such as the right to counsel or a jury trial), so the only issue is whether appellant complied with rule 33.1(a). Appellant was initially indicted for injury to a child. The District Attorney's office continued to investigate the case and subsequently indicted appellant for capital murder of a child. Appellant never filed a motion to dismiss or quash the indictment based on a claim of prosecutorial vindictiveness. He never argued that his due-process rights had been violated by the re-indictment. Because appellant failed to present his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review. See id. at 179. We overrule appellant's sixth issue.
VII. CONTINUANCE
In his seventh issue, appellant claims the trial court erred in denying his motion for continuance because the State's late revelation of discovery rendered his counsel unable to adequately prepare for trial.
A motion for continuance is a matter left to the sound discretion of the trial court. TEX. CODE CRIM. PROC. ANN. art. 29.06 (sufficiency of a motion for continuance shall be addressed to "sound discretion" of court and "shall not be granted as matter of right"). As a result, we review a trial court's ruling on a motion for continuance for abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). In order to show reversible error predicated on the denial of a motion for continuance, a defendant must demonstrate both that the trial court erred in denying the motion and that the lack of continuance harmed him. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010). A showing that the ruling was in error "'most likely requires a showing that the case for delay was so convincing that no reasonable trial judge could conclude that scheduling and other considerations as well as fairness to the State outweighed the defendant's interest in delay of the trial.'" Id. at 843 (quoting GEORGE E. DIX & ROBERT O. DAWSON, 42 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 28.56 (2d ed.2001)). A showing of harm requires the defendant to demonstrate "with considerable specificity" how he was harmed by the absence of more preparation time. Id. at 842 (quoting DIX ET AL., supra)). We consider the circumstances of the case and the reasons given to the trial court at the time the request is made, and we bear in mind the general interest in the prompt and efficient administration of justice. Rosales v. State, 841 S.W.2d 368, 374 (Tex. Crim. App. 1992).
Appellant filed a motion for continuance four days before his scheduled trial date. He urged he needed additional time to review 16 pieces of discovery, approximately 850 pages of data, that the State uploaded onto the discovery portal the week before trial. Appellant generally claimed 2 of the pieces contained potential Brady material involving potential State witnesses, which warranted a thorough investigation. On appeal, appellant argues that counsel could not possibly have reviewed the mass of data on the eve of trial and it may have contributed to appellant's apparent lack of awareness that the State was planning to call Jeri as its key witness. The State responds that the complained of discovery was loaded onto the discovery portal seven days before the start of trial, which the trial court could have reasonably determined was a sufficient amount of time for review.
A general assertion that counsel lacked time to prepare for the defense is not sufficient to show prejudice from the denial of a continuance. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). Rather, to establish an abuse of discretion, an appellant must show that the denial actually and specifically prejudiced his defense. Gonzales, 304 S.W.3d at 842.
Appellant does not identify any items contained in the discovery disclosed in October 2018 that counsel was unable to review or use during trial. Nor does appellant identify the documents that may have contained Brady material. As to Jeri being a potential witness, the record reveals that more than a year before trial the State notified appellant and his counsel that Jeri would be testifying against appellant. Moreover, appellant's counsel's cross-examination of Jeri demonstrated that counsel was thoroughly prepared. Appellant does not identify any items contained in the discovery disclosed in October 2018 that counsel should have used in cross-examination or explain how use of any of this evidence would have benefitted the defense. We conclude appellant failed to show that the trial court abused its discretion by denying appellant's motion or that the lack of a continuance prejudiced his defense. See id. at 842-43. We overrule appellant's seventh issue.
VIII. CONSTITUTIONALITY OF MANDATORY LIFE IMPRISONMENT WITHOUT PAROLE
In his eighth issue, appellant claims his mandatory life sentence without parole is an unconstitutional sentence for capital murder and violates his rights under the Eighth and Fourteenth Amendments of the Unites States Constitution as well as article I, sections 10, 13, and 19 of the Texas Constitution. He asserts that "evolving standards of decency dictate" that the Supreme Court will hold unconstitutional "the mandatory, automatic imposition of the most punitive sentence available, other than a death sentence." The State responds the constitutionality of penal code section 12.31(a)(2) is settled, and appellant provides no reason to reconsider it. See TEX. PENAL CODE ANN. § 12.31(a)(2).
The Eighth Amendment and article I, section 13 prohibit the imposition of cruel and unusual punishment. U.S. CONST. Amend. XVIII; TEX. CONST. art. I, § 13. The Fourteenth Amendment and article I, section 19 provide a person may not be deprive of liberty without due process of law. U.S. CONST. Amend. XIV; TEX. CONST. art. I, § 19. Article I, section 10 provides an accused shall have the right to be heard. TEX. CONST. art. I, § 10. Appellant does not assert a separate argument concerning his claim that an automatic life sentence without parole violates article I, section 10 of the Texas Constitution. However, we construe appellant's arguments the sentence is a cruel and unusual punishment and violates his right to due process to include this section.
We first note that appellant has failed to preserve the complaint he asserts in his eighth issue. Before a party may present a complaint for appellate review, the record must normally show that the complaint was made to the trial court. TEX. R. APP. P. 33.1. Appellant did not object at trial that the sentencing statute violated either the United States or Texas Constitutions. Because no specific and timely objection was made, appellant has waived his complaint on appeal. See Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); Wilkerson v. State, 347 S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).
Nevertheless, the United States Supreme Court has concluded that an automatic life-sentence without parole does not violate the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994-96 (1991). Multiple courts, including this one, have continued to follow Harmelin, holding that the Eighth Amendment does not guarantee adult defendants an individualized punishment hearing when sentenced to life in prison without the possibility of parole for capital murder. See Simms v. State, No. 06-18-00181-CR, 2019 WL 2479845, at *10 (Tex. App.—Texarkana June 14, 2019, pet. ref'd) (mem. op., not designated for publication); Cormier v. State, 540 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd); Kim v. State, No. 05-14-00138-CR, 2015 WL 1935948, at *6 (Tex. App.—Dallas Apr. 29, 2015, no pet.) (mem. op., not designated for publication); Lewis v. State, 448 S.W.3d 138, 147 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd); Buhl v. State, 960 S.W.2d 927, 935-36 (Tex. App.—Waco 1998, pet. ref'd). Moreover, the Court of Criminal Appeals has found no distinction between the protections offered under the Eighth Amendment of the United States Constitution and article I, section 13 of the Texas Constitution, and one of our sister courts has concluded penal code section 12.31(a)(2) does not impose cruel and unusual punishment prohibited by both the United States and Texas Constitutions. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997); Modarresi v. State, 488 S.W.3d 455, 467 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Accordingly, under these authorities, a mandatory life sentence for an adult defendant does not violate the United States and Texas constitutional protections against cruel and unusual punishment.
As to appellant's claim that his automatic life sentence violates both the Due Process Clause of the Fourteenth Amendment and the due course of law guarantee found in article I, section 19 of the Texas Constitution, multiple Texas appellate courts have held that mandatory sentencing statutes do not violate constitutional due process rights. See, e.g., Lopez v. State, 493 S.W.3d 126, 139-40 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd); Lewis, 448 S.W.3d at 147; Moore v. State, 54 S.W.3d 529, 544 (Tex. App.—Fort Worth 2001, pet. ref'd) (mandatory life sentence did not violate due process rights and defendant had no right to mitigation hearing); Williams v. State, 10 S.W.3d 370, 372-73 (Tex. App.—Tyler 1999, pet. ref'd) (mandatory life sentence did not violate due process rights). Appellant relies on Stanley v. Illinois, 405 U.S. 645, 657-58 (1972) (holding unwed father entitled to hearing on his fitness as a parent before children could be taken from him after death of their mother), and Bell v. Burson, 402 U.S. 535, 542-43 (1971) (holding motorist entitled to hearing before taking his license under statute that required loss of license if uninsured driver involved in an accident), to argue that it is appropriate to deviate from the line of cases rejecting due process challenges to mandatory life sentences. Considering a similar argument in Lewis, our sister court found these cases to be readily distinguishable. Lewis, 448 S.W.3d at 147. We agree, and thus, we decline to deviate from the line of cases rejecting appellant's due process argument. We further note that appellant presents no argument or authority to suggest that the Texas Constitution bestows greater protection than the Fourteenth Amendment in this regard. See Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim. App. 1993). Accordingly, we reject appellant's due process argument under both the United States and Texas Constitutions.
We overrule appellant's eighth issue.
CROSS APPEAL
By cross-appeal, the State urges the judgment should be modified to reflect punishment was assessed by the trial court judge, not the jury.
Although the State indicted appellant for capital murder, it did not seek the death penalty. When a defendant is found guilty of having committed a capital felony when he was 18 years of age or older and the State has not sought the death penalty, a sentence of life imprisonment without parole is mandatory. TEX. PENAL CODE ANN. § 12.31(a)(2). The record reflects the jury found appellant guilty of capital murder and the trial court judge assessed the mandatory sentence of life imprisonment without parole. The judgment, however, reflects that punishment was assessed by the jury. We have the authority to modify the trial court's judgment to make the record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we sustain the State's cross-issue and modify the judgment to reflect the sentence was imposed by the trial court judge.
CONCLUSION
We modify the judgment of the trial court to reflect the trial court judge assessed punishment in this case. TEX. R. APP. P. 43.3. In all other respects, we affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47
181232F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 1, Dallas County, Texas
Trial Court Cause No. F-1800169-H.
Opinion delivered by Justice Schenck. Justices Myers and Carlyle participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
We modify the judgment of the trial court to reflect the trial court judge assessed punishment in this case. As REFORMED, the judgment is AFFIRMED. Judgment entered this 10th day of March, 2020.