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Date: 05-16-2018

Case Style:

Allan McDowell v. The State of Texas

Fifth Court of Appeals - Texas Courts

Case Number: 05-17-00431-CR 05-17-00432-CR

Judge: Elizabeth Lang-Miers

Court: Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney: Ricardo Vela Jr.
Faith Johnson
Lori Ordiway

Defendant's Attorney: Bruce Anton

Description: At trial, the State offered appellant’s written and signed plea of true and stipulation of
evidence to the allegations in the State’s motion to proceed to an adjudication of guilt on the first
robbery as well as appellant’s written and signed judicial confession and stipulation of evidence
to the second robbery allegation. The State asked the trial court to take judicial notice of the court’s
file and its contents on the first robbery. The trial court said that it had taken judicial notice of a
“CATS3 evaluation that was done in the probation case” and had “read the PSI.”4

2 Cause No. 05-17-00432-CR/F-11-61628-P.
3 CATS is a common abbreviation for a “Comprehensive Assessment and Treatment Services” evaluation.

4 PSI is a common abbreviation for a “Presentence Investigation Report.”



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The State offered into evidence, as State’s Exhibit 2, a letter written by the victim of the
first robbery and indicated that it should already be a part of the trial court’s file in that case.
Appellant objected on grounds of “improper predicate and hearsay.” The trial court overruled that
objection, saying “I want to read it.” The record indicates that the trial court reviewed the letter.
Prior to sentencing appellant, the trial court heard from appellant’s mother. She testified
that appellant had been diagnosed with bipolar disorder and schizophrenia; he had been put on
medication at the age of fourteen. She also testified that appellant had been sexually abused at a
young age. She stated that appellant heard voices which told him to do bad things; he did drugs to
keep from hearing the voices. At one point, appellant had attempted to jump off a bridge “after he
had got with some guys and they gave him some whack5 to stop the voices.” By the time of trial,
she testified that appellant was HIV positive. Due to appellant’s history of substance abuse,
appellant’s mother believed that if he was allowed back on the street without treatment, he would
hurt another individual. She testified that he needed treatment in a “lock-down” facility so “he
can’t hurt anybody else.” Appellant’s mother knew that he had faced some criminal charges in
Georgia for sexual battery for which he served a year on probation in that state.
Prior to hearing arguments, the trial court questioned appellant about his history of mental
issues and drug abuse.
The trial court confirmed that appellant told the CATS department that he first saw a mental
health professional as a juvenile due to behavior issues and anger management problems. He had
reported being hospitalized at the age of fourteen for aggression and anger issues. He had reported
being diagnosed with bipolar disorder and schizophrenia and had been taking anti-depressant

5 “Whack” is common slang for Phencyclidine, a/k/a PCP.


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medication on and off since that time. Appellant reported that he had experienced violent rages
beginning in August of 2010 and had been prescribed Zoloft and Risperidone. Appellant reported
that he had been hospitalized for one day in July 2011 when the police transported him there after
a suicide attempt while he was under the influence of PCP; he was transferred to another facility
for inpatient dual diagnosis treatment.
After hearing arguments, the trial court asked appellant why, within 24 hours after being
placed on probation for the first robbery, he committed the same crime again:
THE COURT: Can you tell me why that when you got out, you went straight and did almost the same thing? I’d like to hear why you did that.

THE DEFENDANT: I didn’t have no treatment.

THE COURT: Are you going to blame because you didn’t have any treatment –

THE DEFENDANT: I’m not equipped with the tools to –

THE COURT: Let me ask you this: Did you know it was wrong?

THE DEFENDANT: Yes, ma’am.

After assessing punishment at 20 years imprisonment in both cases, the trial court
explained its sentence to appellant as follows:
And the reason I read what I did to you, you’re not a stupid man. You sat right there and you regurgitated all of your mental health problems and what all you were supposed to do and what meds you were on. You have chosen to – refuse not to help yourself, and when you don’t help yourself, you put people in this community in fear of there (sic) lives, including children. This is not an aggravated sentence, so you probably won’t even do ten years. But it is time for you to know that if you don’t get your act together and know about your mental illness and do what you’re suppose to do, you will end up next time getting a life sentence. I and numerous people have tried to help you and you have refused the help and I am not going to put anybody else in danger of you being out on the street.

Standard of Review
We review a trial court’s decision to admit punishment evidence under an abuse of
discretion standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010); Walters v. State,


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247 S.W.3d 204, 217 (Tex. Crim. App. 2007); see also Davis v. State, 68 S.W.3d 273, 283 (Tex.
App.—Dallas 2002, pet. ref’d). The trial court abuses its discretion only when its decision lies
“outside the zone of reasonable disagreement.” Walters, 247 S.W.3d at 217.
Relevant Evidence
Trial courts have broad discretion to admit evidence the court deems relevant to
punishment, including the circumstances of the offense for which a defendant is on trial. TEX.
CODE CRIM. PROC. art. 37.07, § 3(a)(1). Evidence is relevant if it has any tendency to make a fact
more or less probable and the fact is of consequence in determining the action. TEX. R. EVID. 401.
During the punishment phase of a trial, relevant evidence is that which assists the factfinder in
determining the appropriate sentence to assess a particular defendant under the circumstances
presented by the case. Davis, 68 S.W.3d at 282–83.
The Letter
The letter offered by the State into evidence and admitted by the trial court was written by
the victim of appellant’s first robbery, which occurred at a check cashing business. The letter
detailed how appellant approached the victim, struck her in the chest with his elbow, and took both
her wallet and the cash she had in her hand. The letter stated that she went to the police station,
gave a written statement of the incident, and was informed as to the process and steps that would
be taken in the case. She wrote that, in the immediate aftermath of the robbery, she had to remain
calm and strong for her children, her cousin and her mother, all of whom had been with her at the
time. It was only later, after she calmed her family that she was able to give in to her own emotions
of fear and anger. She had awakened in the middle of the night “fighting and screaming” and had
continued to do so “every night for almost two months.”
The victim also described in the letter that, when she was still hurting two days later from
the blow to her chest, she went to the emergency room where she was diagnosed with rib


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contusions as a result of that blow. The pain made it hard for her to sleep, in addition to the
nightmares she was having. She was given a prescription for pain medication, but the medication
made it hard to be fully functional at her job. It took her a full ten days to recover and she still
experienced intermittent pain in her chest.
At the time she wrote the letter, the victim was pursuing counseling avenues in the hope
that it would alleviate some of her anxiety, nightmares and anger.
In this same letter, the victim described the effects the robbery had on her children. Her 16
year-old son had chased appellant out of the store. Once outside, her two other children, aged 12
and 15, as well as her 14-year-old cousin, joined the chase until the police arrived and subdued
appellant. One of her children was unable to calm down until the police had advised him of the
possible sentence for the robbery.
After the robbery, the children were afraid and crying. Her mother, who had also been with
her at the time, was so upset her asthma started acting up. The children’s father came to the house
and stayed the night to help ensure that the children felt safe. At the time she wrote the letter, her
children were still having nightmares and their behavior was affected:
[M]y children won’t allow me to leave home alone except to go to work, my daughter sleeps with a knife under her bed, my oldest sleeps in spurts as he wakes up through out the night to walk through the house at every little noise, and my middle son falls asleep right after school during the day so that he can stay up all night without nightmares and guard us.

Her mother and her cousin were also still experiencing issues related to the robbery.
Allegations on Appeal
Appellant argues that the trial court abused its discretion by admitting the letter into
evidence. Appellant alleges the letter contained out-of-court statements that were offered to prove
the truth of the statements therein and thus constituted inadmissible hearsay that did not fall within
any recognized exception. TEX. R. EVID. 801(d), 802, 803. Appellant also argues that, because the


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trial court assessed the maximum sentence in each case, there can be no assurance that the contents
of the letter did not influence the verdict and admission of the letter was harmful.
The State does not dispute appellant’s hearsay allegations. Instead, the State responds that
the letter was properly admitted because the letter contained evidence concerning the
circumstances of the offense and, as such, was relevant as to punishment and admissible. TEX.
CODE CRIM. PROC. art. 37.07, § 3(a)(1). The State also claims that the letter was admissible as
victim-impact evidence under TEX. CODE CRIM. PROC. art. 56.03 (e).
We need not address the merits of these competing claims, however, because even if we
agreed that the letter was inadmissible, we do not agree that the contents of the letter were so
harmful as to mandate a reversal.
Error, if Any, is Harmless
The admission of inadmissible hearsay is non-constitutional error. Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). Non-constitutional error that does not affect an
appellant’s substantial rights is to be disregarded. TEX. R. APP. P. 44.2(b); Garcia v. State, 126
S.W.3d 921, 927–28 (Tex. Crim. App. 2004). An appellant’s substantial rights are not affected by
the erroneous admission of evidence if, after examining the record as a whole, we have fair
assurance that the error did not influence the verdict or had only a slight influence on the verdict.
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); see also Garcia, 126 S.W.3d at 927–
28; Johnson, 967 S.W.2d at 417. In making this determination, we consider the entire record,
including the other evidence admitted in the case, the nature of the evidence supporting the
factfinder’s determination, the character of the alleged error and how it might be considered in
connection with other evidence in the case, the State’s theory, any defensive theories, closing
arguments, and whether the State emphasized the error. Motilla, 78 S.W.3d at 355-56.


–8–
In assessing error due to improperly admitted evidence at the punishment phase of a trial,
we must ask whether appellant received a longer sentence as a result of the erroneously admitted
evidence. Ivey v. State, 250 S.W.3d 121, 126 (Tex. App.—Austin 2007), aff’d, 277 S.W.3d 43
(Tex. Crim. App. 2009) (affirming a conviction because the defendant had not demonstrated that
he received a longer sentence or was harmed by the admission of improper testimony concerning
the conditions of and his eligibility for probation); Peterson v. State, No. 05-12-01417-CR, 2013
WL 5776287, at *5 (Tex. App.—Dallas Oct. 24, 2013, no pet.) (not designated for publication)
(concluding that a defendant was not harmed by the trial judge’s refusal to rule on a hearsay
objection and the admission of hearsay testimony because the objected-to evidence had only a
slight effect on the punishment verdict).
After examining this record as a whole, we have fair assurance that the letter did not have
a substantial and injurious effect in determining the trial court’s punishment verdict or, if it did,
that the influence was slight.
The evidence of appellant’s violent nature was before the trial court in both judicial
confessions wherein appellant confessed that he had caused bodily injury to his victims. Appellant
confessed that he struck the victim of the first robbery with his arm and elbow and struck the victim
of the second robbery with his fist. The trial court did not need any information from the letter to
conclude that appellant had caused the victim of the first robbery bodily injury. The State did not
rely on the contents of the letter at all in its arguments for a prison sentence as opposed to
probation.6 The trial court’s remarks and questions indicate that it was focused on appellant’s lack
of responsibility with respect to managing his drug addiction and mental health issues as well as

6 The State did, however, argue some of the facts of the second robbery: “[N]ot even 24 hours of getting out of jail, (he) goes and commits the exact same kind of crime, assault a woman who is trying to put her grandchild in the back of her car, to take her purse so he can go get more drugs.”


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the undisputed fact that, within 24 hours after being placed on probation for the first robbery,
appellant committed a second robbery. The only possible mention that the trial court made of the
letter was in the context of admonishing appellant on his need to manage his drug and mental
health issues: “when you don’t help yourself, you put people in this community in fear of there
(sic) lives, including children.” There is no indication that the trial court used the actual facts
surrounding the first robbery to enhance its punishment decision. And, if the trial court did consider
the letter, there is no evidence that it was an overriding factor in assessing punishment.
Consequently, we are unable to conclude that appellant received a longer sentence as a
result to the contents of the letter. The length of the sentences assessed were due to appellant’s
disinclination to manage his drug addiction and mental issues, as well as his proven potential for
recidivism. We conclude that the trial judge’s admission of the letter, even if erroneous, was
harmless.

Outcome: We overrule appellant’s sole issue and affirm.

Plaintiff's Experts:

Defendant's Experts:

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