The 5th Court of Appeals decided SHEPHARD MAPOLISA, Appellant v. THE STATE OF TEXAS, Appellee, on July 11, 2017.

The Court issued a memorandum opinion affirming Appellant’s conviction for Assault..

The case was on appeal from County Criminal Court No. 10 in Dallas County, Texas, as Trial Court Cause No. MA-1462666-L. From the appellate court:

A pivotal issue in this family violence assault case is whether appellant’s wife’s testimony that she had taken a nurses oath to do no harm opened the door to evidence of her prior violent acts. Appellant also complains that the trial court erred by (i) excluding evidence concerning Wife’s unemployment status and eligibility for Medicare, (ii) admitting evidence suggesting that he had previously assaulted Wife, and (iii) submitting a charge with erroneous mental state definitions.

We conclude that the trial court did not abuse its discretion by excluding evidence of Wife’s violent acts offered to refute the impression that she was not a violent person, and the remaining two grounds urged in support of that evidence were not preserved for our review. We further conclude that (i) there was no abuse of discretion by admitting evidence that may have suggested that appellant previously assaulted Wife, or by excluding evidence concerning Wife’s unemployment status, and (ii) erroneous definitions in the jury charge did not harm appellant. We thus affirm the trial court’s judgment.

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Appellant’s first six issues complain about trial court rulings that (i) excluded evidence of Wife’s prior bad acts and employment history and (ii) admitted evidence of appellant’s prior conduct. Because the record does not support appellant’s arguments that the trial court abused its discretion in any of those rulings, we reject his first six issues.

The 5th Court of Appeals also decided MARCUS LINDSEY, Appellant v. THE STATE OF TEXAS, Appellee, on July 11, 2017.

The Court issued a memorandum opinion modifying, and affirming as modified, Appellant’s convictions for Sexual Performance by a Child and Possession of Child Pornography.

The case was on appeal from the 204th Judicial District Court in Dallas County, Texas, as Trial Court Cause Nos. F14-60874-Q and F15-00039-Q. From the appellate court:

Using the pseudonym Akime, appellant sent a Facebook friend request to C.M., who was thirteen years old at the time. Through Facebook’s private messaging feature, appellant told her he had a younger brother named Tayshawn and asked for C.M.’s information to contact her on Kik, another social media application that allowed users to send private messages to each other. Appellant then posed as Tayshawn to send messages to C.M. As both Akime and Tayshawn, appellant exchanged messages with C.M. for a few days before he asked her to be in a romantic relationship with him. C.M. agreed to be in a romantic relationship with Akime, but she rejected Tayshawn.

C.M. continued to exchange messages with both of appellant’s false identities for approximately a week before appellant as Akime accused C.M. of cheating on him with Tayshawn and threatened to post screenshots of conversations between C.M. and Tayshawn on C.M.’s public Facebook page, which would have “gotten [C.M.] in trouble at home.” C.M. apologized, but appellant as Akime told her that “[t]he only thing that [would] save [her]” would be if she sent him lurid photographs depicting her in various poses as he directed and met him in person. C.M. reluctantly complied with his orders for photographs.

Once C.M. sent Akime the demanded photographs, appellant as Akime ordered C.M. to go the following Saturday to an apartment to have sex with a “friend” of his. He threatened C.M. that if she did not have sex with his friend, he would publish the photographs C.M. had sent, along with the screenshots of her conversations with Tayshawn. He also threatened C.M. that if she told anyone about their arrangement, he would post the nude photographs everywhere and not remove them. But when that Saturday arrived, C.M. told Akime she could not go to the apartment, and appellant retaliated by publicly posting the nude photographs she sent him. Appellant as Akime threatened that if she did not go to the apartment later that weekend, she could lose her mother and underscored the threat by sending C.M. a picture of a gun. That night, C.M. told her mother everything that had happened, and C.M.’s mother called the police.

The investigating officers used the phone number and Facebook and Kik information appellant provided C.M. to identify appellant as a suspect and obtain a search warrant for appellant’s apartment. During the search of appellant’s apartment, the police found a cell phone that appellant admitted belonged to him. That cell phone contained Akime’s Facebook account, Tayshawn’s Kik account, and the photographs C.M. had taken and sent to Akime. Appellant admitted to police that he had used the two false online identities and had demanded C.M. send him photographs of her breasts.

A grand jury charged appellant by indictment with possession of child pornography and sexual performance by a child younger than 14 years old. TEX. PENAL CODE ANN. §§ 43.25, 43.26 (West 2016). The child pornography indictment alleged in relevant part that appellant possessed visual material of a child engaging in sexual conduct, “to-wit: the lewd exhibition of the female breast below the top of the areola.” The sexual performance indictment alleged in relevant part that appellant had induced C.M. to engage in sexual conduct and a sexual performance, “to-wit: the lewd exhibition of the female breast below the top of the areola.” The State notified appellant of its intent to enhance his punishment in each case with a prior felony forgery conviction. In a consolidated jury trial on both cases, appellant pleaded not guilty to the charged offenses, and a jury found him guilty. Appellant entered pleas of true to each enhancement paragraph. The trial court sentenced appellant to twenty years’ confinement in each case with the two sentences to run concurrently. Appellant filed a motion for new trial in each case, but both were overruled.

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During appellant’s trial, the prosecutor asked Dallas Police Detective Gregory Dugger if the photograph C.M. sent appellant depicted a “lewd exhibition of the female breast . . . below the areola.” Defense counsel objected that the question sought to elicit testimony that would relate to a material fact to be determined by the jury. The State responded that Detective Dugger was an expert based on his testimony of at least eleven years’ experience in investigating Internet facilitated sex crimes against children. The trial judge overruled defense counsel’s objection and advised the jury that the detective would testify as to what his opinion might be but that the jurors would make the ultimate fact decisions. Detective Dugger testified that he considered the image to be a lewd exhibition of the female breast below the top of the areola because it was “not a natural photo or pose for a child of that age . . . [and] appears to be sexually suggestive.”

On appeal, appellant argues Detective Dugger’s testimony amounted to testimony that appellant was guilty of the charged offenses. He notes that the penal code and his indictment required a jury to find the photograph or photographs to be “lewd” and that the court’s charge offered no definition, potentially increasing the significance of Detective Dugger’s testimony. He further contends that as a police officer, Detective Dugger’s testimony of guilt was highly prejudicial.

Assuming, without deciding, the trial court erred by permitting Detective Dugger to testify as an expert that he considered the image to be a lewd exhibition of the female breast below the top of the areola, such alleged non-constitutional error must affect appellant’s substantial rights. TEX. R. APP. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if we, after examining the record as a whole, have fair assurance that the error did not influence the jury, or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). In assessing the likelihood the jury’s decision was adversely affected, we consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error, the jury instructions, the arguments, and the voir dire. Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002). Other factors in this consideration include whether the State emphasized the error and overwhelming evidence of the defendant’s guilt. Id. at 356–57.

Here, the jury saw the photograph of C.M. and may have reasonably determined that it was lewd without Detective Dugger’s testimony. The record shows appellant as Akime demanded “two pics, one breast pic, no bra, and a booty pick (sic) with some sexy panties on” from which the jury could infer appellant intended the photograph to depict C.M. engaging in sexual conduct. Moreover, the trial judge orally instructed the jury before Detective Dugger testified that the detective’s testimony was his opinion and that the jurors would make the ultimate fact decisions in all the elements of the cases. During closing arguments, while the State argued appellant intended the photograph to be lewd, the State did not see the need to reference or otherwise emphasize the detective’s testimony in urging that conclusion.

The record also contains overwhelming evidence of appellant’s guilt. Appellant admitted to police that he owned the cell phone recovered at his apartment. That cell phone had open Facebook and Kik accounts containing the photographs of C.M. and his conversations with her. Those conversations revealed C.M. informed appellant she was 17 years old, and the record shows C.M. was 13 years old at the time of the offense. Appellant admitted to police and at trial that he used the “Akime” and “Tayshawn” identities. And appellant admitted to police he asked C.M. for photographs of her breasts.

Based on this record, we have fair assurance that the error did not influence the jury, or had but a slight effect. See Solomon, 49 S.W.3d at 365. Accordingly, we conclude appellant’s substantial rights were not affected by error, if any, and overrule his first issue.

The 5th Court of Appeals also decided NYKERION NEALON, Appellant v. THE STATE OF TEXAS, Appellee, on July 11, 2017.

The Court issued a memorandum opinion affirming Appellant’s conviction for Murder.

The case was on appeal from the 265th Judicial District Court in Dallas County, Texas, as Trial Court Cause No. F15-75310-R. From the appellate court:

Nykerion Nealon appeals the trial court’s judgment convicting him of felony murder. A jury found Nealon guilty and sentenced him to thirty-eight years in prison. On appeal, Nealon challenges the sufficiency of the evidence to support his conviction. He also asserts the trial court erred by (1) admitting evidence concerning a tip received by the police, (2) excluding a statement made by one of Nealon’s companions during his custodial interview, and (3) including law-of-parties instructions in the jury charge. We affirm the trial court’s judgment.