MARCILNE JOSEPH ELLISON v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

MARCILNE JOSEPH ELLISON, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–01009–CR

Decided: December 19, 2011

Before Justices Bridges, Richter, and Murphy

MEMORANDUM OPINION

Opinion by Justice Murphy

Marcilne Joseph Ellison appeals his conviction for interference with child custody, a state jail felony.   See Tex. Penal Code Ann. § 25.03(a)(1), (d) (West 2011).   Appellant contends in two points of error that the evidence is insufficient to show he knew of the child-custody order and that the trial court erroneously admitted into evidence at the guilt-innocence phase numerous recorded telephone calls appellant made from jail.   We affirm the trial court's judgment.

Appellant's Knowledge of Child Custody Order

Appellant was charged with committing interference with child custody “on or about”January 28, 2009, by retaining his two-year-old daughter, P.K.E., knowing that his retention violated the express terms of a December 9, 2008 custody order.   See id.   P.K.E.'s mother, Kelly Bean (Mother), had filed a petition for child custody and support in early 2008.   The trial court held a hearing in May of 2008 on Mother's request for temporary orders.   The temporary orders signed by the trial judge are dated July 11, 2008 and reference a May 6, 2008 hearing.   The record contains a certified copy of the July 11 temporary orders with an attached transmittal letter from Mother's counsel to the court, with a copy to appellant.   The transmittal letter, dated June 2, 2008, requests the clerk of the court to present the proposed orders to the judge after allowing appellant ten days to approve or object to the orders.   The letter does not indicate a means of transmittal to appellant, and the record contains no indication.

Mother testified at appellant's criminal trial that appellant was present at the May 6 hearing.   When asked if appellant received a copy of the temporary orders at the hearing, Mother testified:  “As far as I know, yes.”   She also responded that the temporary orders were “handed out right from the Court.”   The record contains no other indication any orders were actually signed or delivered to the parties at the hearing.

The July 11 temporary orders recite that appellant “although duly and properly notified, did not appear and wholly made default,” but also contain a finding “that the provisions in these orders relating to conservatorship, possession of and access to the child and child support constitute the parties' agreed temporary orders.”   The orders are not signed by the parties.

With regard to child support, the temporary orders include the requirement that appellant pay child support in the amount of $577.26 per month beginning June 1, 2008.   The orders also set the terms of appellant's visitation with P.K.E., which included two hours every Wednesday evening from 5:00 p.m. to 7:00 p.m.

A final order in suit affecting the parent-child relationship was signed on December 9, 2008, following a hearing on that date.   Appellant did not appear at the hearing.   The final order provided that appellant and Mother would have possession of P.K.E. at times mutually agreed to in advance.   Absent mutual agreement of the parties, the final order contained the same terms of appellant's visitation with P.K.E. as in the temporary orders.   Mother testified at appellant's criminal trial that appellant knew about the December court date and she spoke with him after the hearing.   When appellant asked her “what happened at court today,” she “told him that since he didn't appear, they just stayed the same.   They just-the orders did not change from the temporary.”

Because of her work schedule, Mother had her mother handle the exchange of P.K.E. with appellant for his visitations.   She testified that by January 2009, the exchanges occurred in public at a gasoline station because appellant had threatened to kill Mother and her family.

For appellant's permitted visitation with P.K.E. on Wednesday, January 28, 2009, Mother agreed appellant could change the time from 5:00–7:00 p.m. to 6:00–8:00 p.m. because appellant had to work late.   Appellant did not return P.K.E. at 8:00 p.m that evening.   Mother spoke by phone with appellant several times that night and the next day, and appellant threatened several times that Mother would never see P.K.E. again.

The next day an Amber Alert was issued.   When appellant learned of the Amber Alert, he made more phone threats to Mother that she would never see P.K.E. again.   That afternoon deputy marshals began surveillance of a home where they believed P.K.E. might be.   Multiple people and cars were at the home, and when the deputies saw two men leave with someone they believed to be P.K.E., they stopped the vehicle and recovered P.K.E. The deputies returned to the home and, after a brief struggle during which appellant was tased and bitten by a police dog, arrested appellant.   Inside the home the police found several loaded firearms that were easily accessible to appellant.

Appellant challenges the sufficiency of the evidence to show he knew he was violating the December 9 custody order when he retained P.K.E. He argues that reasonable doubt exists because of (1) conflict between Mother's testimony and the recitations in the July 11 temporary orders regarding appellant's presence at the May 6 hearing, (2) appellant's absence from the December 9 final order hearing, and (3) lack of service of the temporary and final orders.   Appellant also argues that some of his text messages to Mother and his July 2010 recorded phone call in jail support his lack of awareness of the December 9 custody order.

In reviewing a challenge to the sufficiency of the evidence,1 we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011).   We defer to the fact finder's determinations of the witnesses' credibility and the weight to be given their testimony because the fact finder is the sole judge of those matters.  Jackson, 443 U.S. at 326;  Brooks, 323 S.W.3d at 899–900.

The text of the excerpted phone recording appellant relies on to show lack of knowledge of the court order was admitted as State's Exhibit 3–1.   The call occurred July 4, 2010 and appellant made the following comment:

I had pictures of my kid, and she was denying me and violating the Court order, not letting me have my daughter.   Collin County would not help me, so when I got my kid, I kept her.   And I wasn't in violation of any court order.   There was no court order until I came to jail.   They tried to get me to sign it, and I refused.

Appellant focuses on his statement that he “wasn't in violation of any court order” and “[t]here was no court order until I came to jail.”   The text messages appellant cites are included in State's Exhibits 4–1, 4–3, 4–6, and 4–7 and consist of appellant's statements and questions about whether and what time he can pick up P.K.E. For example, on January 15, 2009, appellant wrote, “Hay ma i see my daughter two day if so where what time queen kelly ruler of the world.”   Appellant argues that he was taking “visitation orders” from Mother and that she controlled access to P.K.E.

The State responds that State's Exhibit 3–1 shows appellant's awareness of the December 9 custody order, focusing on appellant's accusation in the same recording that Mother was “violating the Court order.”   Additionally, the State emphasizes appellant's knowledge of his visitation days and hours as required by court order, including the time change on January 28 to accommodate appellant's work schedule.   The State also argues that appellant could not have been ignorant that he would violate the custody order by taking P.K.E. overnight, refusing to return her, and threatening Mother that she would never see P.K.E. again.

Under Jackson v. Virginia, we must presume the trial court resolved any conflict between Mother's testimony and the recitations in the July 11 temporary custody orders and found that appellant was present at the May 6th hearing that produced those orders.   See Jackson, 443 U.S. at 319 (appellate court must presume fact finder resolved conflicts and defer to that resolution).   In addition to Mother's testimony that she told appellant the final order was the same as the temporary orders, Mother also testified she believed she had seen a copy of the temporary orders on a cabinet in a home where appellant was living.   We also observe appellant's child support obligations were part of the same temporary and final orders.

Considering the record in the light most favorable to the trial court's judgment, we conclude a rational fact finder could have found appellant was aware his retention violated the express terms of a December 9 custody order as charged.  Id. That the record does not show actual delivery to appellant of the temporary orders or the final order is not dispositive.   Subsection 25.03(a)(1) requires only that appellant knew his actions violated the express terms of an order disposing of a child's custody.   See Tex. Penal Code Ann. § 25.03(a)(1).   The trial court reasonably could have relied on Mother's testimony regarding appellant's knowledge of the December 9 order, including his recorded phone conversation referencing Mother's violation of the order, and rejected any of appellant's suggested inferences from the recorded phone call and messages.   We overrule point of error one.

Admissibility of Telephone Recordings

In his second point of error, appellant challenges the trial court's admission of appellant's calls from jail between December 4, 2009 and July 7, 2010.   Specifically, he challenges admission of State's Exhibits 2, 2–1 to 2–16, 3, and 3–2 during the guilt-innocence phase of the trial.   Appellant contends the recordings were not properly authenticated and that they are hearsay, not relevant, and their prejudicial impact greatly outweighs any probative value.

State's Exhibits 2 and 3 are compact discs containing numerous recorded telephone calls made by appellant during the stated time period.   State's Exhibits 2–1 to 2–16 and 3–2 are excerpts from the recordings read into the record during the trial.   Of appellant's complaints on appeal, the only objection at trial prior to admission of the exhibits was relevance;  appellant argued the calls were after appellant was arrested and therefore “after-the-fact” and irrelevant.   Accordingly, appellant has preserved only a relevancy objection based on the timing of the calls.   See Tex. R. App. P. 33.1(a)(1)(A).

Appellant's relevance argument on appeal is general;  he cites globally to pages 26–51 of the reporter's record and argues “the subject areas of the recordings were numerous from child support to the [a]ppellant's job status, to weapons charges, to contract killings, but had no relevance to the State's case in chief.”

It was appellant's burden to bring to the trial court's attention the specific objectionable portions of the recorded telephone calls.   See id. (complaining party's trial objection must be made with sufficient specificity to make trial court aware of complaint).   Here, for example, portions of the exhibits read at trial included relevant evidence similar to testimony admitted at trial without objection, including appellant's threats to kill Mother's family and the seizure of weapons from appellant's home just after P.K.E. was recovered as she was leaving the home.   Appellant's general objection at trial does not satisfy his burden and, therefore, preserves nothing on appeal.   See Whitaker v. State, 286 S.W.3d 355, 368–69 (Tex.Crim.App.2009) (trial objections that recorded calls contained inadmissible hearsay, references to extraneous matters, and other prejudicial matters not sufficiently specific to preserve error);  Hernandez v. State, 599 S.W.2d 614, 617 (Tex.Crim.App.1980) (op. on reh'g) (to preserve error, objecting party has burden to point to specific evidence claimed to be inadmissible when portion is admissible).   Similarly, appellant's general reference in his appellate brief to a complaint the exhibits include numerous subject areas “from child support to ․ contract killings” is insufficient to satisfy his appellate burden.   See Tex.R.App. Proc. 38.1(i) (brief must contain clear and concise argument for contentions with appropriate citations to authorities and to record).   Although appellant quotes each exhibit in the statement of facts, that recitation includes exhibit 3–1 to which he does not object on appeal and that he relies on to support his sufficiency argument described in point of error one.   Nowhere does appellant identify a specific statement within an exhibit as being

objectionable. We overrule point of error two and affirm the trial court's judgment.

101009F.U05

FOOTNOTES

FN1. Appellant challenges only the factual sufficiency of the evidence, even though his brief was filed two months after the Texas Court of Criminal Appeals issued its decision in Brooks v. State, deciding the legal-sufficiency standard of Jackson v. Virginia is the only appellate review standard.   See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.Crim.App.2010) (plurality op.).   Accordingly, appellant has waived any error as to legal sufficiency.   See Tex.R.App. Proc. 38.1(i);  see also Devine v. Dallas Cnty., 130 S.W.3d 512, 514 (Tex.App.—Dallas 2005, no pet.) (party failing to brief complaint waives issue on appeal).   Given the closeness in time, however, we address appellant's complaint as a legal-sufficiency challenge..  FN1. Appellant challenges only the factual sufficiency of the evidence, even though his brief was filed two months after the Texas Court of Criminal Appeals issued its decision in Brooks v. State, deciding the legal-sufficiency standard of Jackson v. Virginia is the only appellate review standard.   See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.Crim.App.2010) (plurality op.).   Accordingly, appellant has waived any error as to legal sufficiency.   See Tex.R.App. Proc. 38.1(i);  see also Devine v. Dallas Cnty., 130 S.W.3d 512, 514 (Tex.App.—Dallas 2005, no pet.) (party failing to brief complaint waives issue on appeal).   Given the closeness in time, however, we address appellant's complaint as a legal-sufficiency challenge.

MARY MURPHY JUSTICE

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