Franklin Fuller v. the State of Texas

AFFIRMED as MODIFIED and Opinion Filed August 12, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00066-CR

FRANKLIN FULLER, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F19-75449-K

MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Kennedy
Opinion by Justice Molberg
Appellant Franklin Fuller was indicted for capital murder, and a jury found

him guilty of the lesser-included offense of murder and assessed punishment at life

imprisonment and a $10,000 fine. On appeal, appellant argues (1) his trial counsel

conceded appellant’s guilt in violation of McCoy v. Louisiana, (2) the trial court

abused its discretion in admitting a video exhibit that contained inadmissible

extraneous offense evidence, (3) the trial court abused its discretion in admitting the

video over his rule 403 objection, and (4) the trial court abused its discretion when

it admitted a jail call that included a third party’s irrelevant statement about
punishment. He also asks us to modify the judgment to correct a clerical error. For

the reasons explained below, we modify the judgment as requested and otherwise

affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.1

Discussion

1. McCoy v. Louisiana complaint

In his first issue, appellant contends trial counsel violated his Sixth

Amendment right to autonomy under McCoy v. Louisiana, 584 U.S. 414 (2018), by

conceding appellant was guilty of the lesser-included offense of murder. In making

this complaint, appellant points to statements counsel made during voir dire and in

closing arguments.

Appellant was indicted for the offense of capital murder. He rejected all of

the State’s offers to plead guilty to murder. On August 23, 2022, the trial court

explained to appellant the State had offered him fifty years’ confinement if he

pleaded guilty to murder and discussed alternatives, such as pleading guilty to

murder and presenting evidence before the jury as to punishment. Appellant

responded, “I did not commit capital murder.” The court responded, “Nobody is

talking about capital murder unless you have a full-on jury trial. Do you

understand?” Appellant said he understood. The court continued:

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Because the issues raised by appellant do not require discussion of the full record, we limit our
recitation of the facts to those necessary to resolve appellant’s issues.
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[Trial court]: All right. So on a regular murder, Monday, 50 years, tell
the jury your story why this happened. Or today, you could take 50
years on a regular murder and possibly parole out in 25.
[Appellant]: I will take my chances at going to trial with capital murder.
[Trial court]: Really?
[Appellant]: Seriously.

At the court’s invitation, the State then explained the evidence it planned to present

at trial. The court explained the automatic life sentence attached to capital murder,

and appellant reiterated his desire to proceed to trial, stating he was “taking this case

full-on.”

On August 29, 2022, at a pretrial hearing, the State informed the court its prior

offers—pleading guilty to murder and having a punishment trial or pleading guilty

to murder and serving fifty years—were still on the table. Appellant stated he

wanted new counsel. Defense counsel stated appellant was rejecting the offers. The

court appointed additional counsel for the limited purpose of discussing with

appellant the State’s offers, and appellant again rejected them, stating, “I know I’m

on a suicide mission, and I’m okay with that.”

On August 30, 2022, appellant again rejected the State’s offers. The court,

“out of an abundance of caution,” granted appellant’s motion for new counsel; the

court stated, “[T]his is your last and final lawyer. There will be no more. We will be

going to trial within the next 60 days.” Appellant responded, “I appreciate that.”

On January 11, 2023, the trial court announced the case was set for trial the

next week. The parties acknowledged that appellant had again rejected the State’s

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plea bargain offers. New defense counsel then asked questions of appellant on the

record. Appellant stated he was prepared to go to trial, he would not entertain plea

bargain offers from the State and was unwilling to make any counteroffers, he had

discussed with counsel possible witnesses, and he did not want any mental issues

brought up.

During voir dire, defense counsel told the jury appellant killed the victim:

Now, I hate to let the cat out of the bag. If anybody thought they were
going to get to spend a week down here on a who done it. But
[appellant] did take a life, the heart of the allegation of this indictment.
The State has said by his taking of that life, he committed the offense
of capital murder. And I’m here to tell you that we have entered a plea
of not guilty, and we intend to persist with our plea of not guilty. And,
in fact, we intend to offer you multiple reasons why the verdict of
capital murder should be not guilty.

In his opening statement, defense counsel told the jury the State was “not

going to be able to bring you a lot of the evidence that you need in this case to find

somebody guilty of capital murder.” Counsel acknowledged there would be video

evidence showing appellant shot the victim in the arm but said it would be

“impossible for [the State] to bring you evidence of what was in the mind of the

defendant.” Counsel generally argued there was no evidence appellant committed

robbery and thus could not be guilty of capital murder.

After the State rested its case, defense counsel made a record with appellant.

Appellant stated he was satisfied with counsel’s efforts at trial; he understood he did

not have to testify; he did not want to put on testimony or any evidence relating to

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mental health; he did not want anyone subpoenaed “on the issues of guilt or

punishment”; his counsel had done as appellant had asked; and he did not wish to

testify.

In closing, defense counsel argued, in pertinent part, as follows:

[Appellant] is presumed innocent on each of the allegations and each
of the elements in that indictment. Okay. Including whether or not
there was an intentional murder during the course of a robbery. And,
folks, I’m about to give you several reasons why I suggest to you that
you cannot go back there and find the defendant guilty of capital
murder.

Counsel then made arguments why appellant should be found not guilty of capital

murder before telling the jury the following:

I submit to you that the only proper verdict in this case is to find the
defendant guilty of murder. Okay. And we thought that you might
have a lot of options when we get to this phase of the trial. But at this
point, the options that you have is either capital murder or murder. And
in order to find capital murder, you have to have been proven to, that
the defendant was acting out there with the specific intent that he was
wanting to kill this man, and he did it to rob him.

When a criminal defendant expressly asserts that the objective of his defense

is to maintain innocence, the Sixth Amendment prohibits his counsel from conceding

guilt. McCoy, 584 U.S. at 424. If counsel violates his client’s autonomy in this way,

he injects structural error into the trial. Id. at 427–28. “[A] defendant cannot simply

remain silent before and during trial and raise a McCoy complaint for the first time

after trial.” Turner v. State, 570 S.W.3d 250, 276 (Tex. Crim. App. 2018). A

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defendant makes a McCoy complaint with sufficient clarity when he makes express

statements of his will to maintain innocence. Id.

Here, as in McCoy, counsel conceded appellant’s guilt to the lesser-included

offense of murder. However, unlike McCoy, appellant gave no indication of his

“intransigent and unambiguous objection” to counsel’s concession, see McCoy, 584

U.S. at 420, nor is there any evidence counsel knew appellant “opposed the

concession, or ever instructed counsel not to pursue that tactic,” see Martin v. State,

No. 05-18-00522-CR, 2019 WL 3214149, at *2 (Tex. App.—Dallas July 17, 2019,

pet. ref’d) (mem. op., not designated for publication) (citing Turner, 570 S.W.3d at

276).

Despite this, appellant argues his pretrial rejections of the State’s offers for

him to plead guilty to murder in exchange for a reduced sentence suffice to

demonstrate his will to maintain his innocence of the lesser-included offense. We

cannot agree. The aforementioned plea bargain discussions reveal that although

appellant was adamant he was innocent of capital murder, in the record before us,

neither he nor counsel discussed trial strategy or lesser-included murder, apart from

rejecting offers to plead guilty to murder. We find no cases concluding the rejection

of a plea bargain offer provides a basis to raise a McCoy complaint on appeal.

Moreover, during trial, after the State rested its case, appellant stated on the record

he had no complaints with counsel’s performance. While appellant’s statements

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were made prior to closing arguments, they were made after counsel first conceded

during voir dire that appellant killed his victim.

Because the record does not show appellant objected to counsel’s concession

of guilt on murder at any point during the proceedings below, we overrule his McCoy

complaint. See McCoy, 584 U.S. at 428; Turner, 570 S.W.3d at 276; Martin, 2019

WL 3214149, at *2.

2. Extraneous offense evidence

In his second issue, appellant contends the trial court abused its discretion in

admitting video from a police officer’s body camera because it contained discussion

of an inadmissible extraneous offense. In his third issue, he argues the same video

was inadmissible because its probative value was substantially outweighed by a

danger of unfair prejudice for the same reason.

Sergeant Matthew Terry testified he assisted with locating appellant and

eventually found him sleeping in a parked car. Given the severity of the alleged

offense, Terry and other officers drew their weapons and “performed a felony stop,”

called appellant out of the car, got him on the ground, and handcuffed him. Officer

Carlos Mandes testified he assisted Terry with appellant’s arrest. The State offered

into evidence portions of video from Mandes’s body camera. Appellant objected,

arguing there was mention in the video “that there’s an extraneous warrant. We’re

not going to be able to clear that up. I’d object to that as bringing in extraneous

404(b) material before the jury, and in all likelihood would prejudice him in front of

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the jury to find out the defendant had an active warrant for him as well as being the

suspect in a capital murder case.” The trial court overruled appellant’s objections

and admitted the video as State’s Exhibit 50, in two parts.

In part one of the video, Mandes drives to a 7-Eleven and runs to assist with

the arrest of appellant, which is already in progress. At least four officers can be

seen on video with their weapons drawn, in position behind two police cars, yelling

at appellant to come out of his vehicle with his hands up. Appellant is arrested, and

at three different points throughout the four-and-a-half-minute video, appellant is

told there is a warrant for his arrest, without any specification of offense. Mandes

begins searching appellant and finds three bullets in appellant’s front left pocket. In

part two of the video, Mandes searches appellant’s person and removes items from

his pockets.

After the video was admitted, the State asked Mandes whether appellant had

a traffic warrant he was arrested on. Without objection, Mandes responded

affirmatively. The State then published a portion of part two of the exhibit.

We will assume without deciding the trial court abused its discretion in

admitting this evidence. The violation of an evidentiary rule resulting in the

erroneous admission of evidence constitutes nonconstitutional error, which we

analyze under rule of appellate procedure 44.2(b). Jenkins v. State, No. 05-22-

01003-CR, 2024 WL 412518, at *6 (Tex. App.—Dallas Feb. 5, 2024, pet. ref’d)

(mem. op., not designated for publication). Under this rule, we disregard error that

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does not affect a defendant’s “substantial rights.” TEX. R. APP. P. 44.2(b).

Substantial rights are affected if the error had a substantial and injurious effect or

influence in determining the jury’s verdict; on the other hand, if the error did not

influence the jury, or had but very slight effect, the verdict and the judgment should

stand. Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016). The improper

admission of evidence is harmless if the same or similar evidence is admitted without

objection at another point during trial. Estrada v. State, 313 S.W.3d 274, 302 n.29

(Tex. Crim. App. 2010); Jenkins, 2024 WL 412518, at *6.

As noted above, Mandes testified, without objection, that appellant was

arrested for a traffic-offense warrant. Furthermore, the record reveals that the part

of the exhibit about which appellant complains—part one—was never published to

the jury, and the jury never requested to see part one of the exhibit. See Null v. State,

640 S.W.3d 370, 380 (Tex. App.—Houston [14th Dist.] 2022) (en banc) (concluding

any error in admission of exhibit was harmless when it was never published during

trial or requested during deliberations), rev’d on other grounds, 690 S.W.3d 305

(Tex. Crim. App. 2024). Because other, unobjected-to evidence showed appellant

was arrested on an extraneous warrant, and the record does not show the jury ever

saw or heard the complained-of part of the video exhibit, we conclude any error in

the admission of the video had no influence on the jury’s verdict and was harmless.

We overrule appellant’s second and third issues.

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3. Jail phone call

In his fourth issue, appellant argues the trial court abused its discretion in

admitting a portion of a jail phone call that included a third party’s statement about

punishment. During the testimony of an investigator from the district attorney’s

office, the State sought to admit a phone call appellant made from the jail. During

the call, among other things, appellant explained to the woman he was speaking with

that he was charged with capital murder. The woman stated, “You know if you’re

found guilty, you’re gone for life.” Appellant said, “They’ll probably give me the

death penalty because they’ve got me on camera.” Defense counsel “object[ed] to

it when it goes into discussion of punishment, because punishment is not relevant at

the issue of guilt.” The trial court overruled appellant’s objection.

We will again assume without deciding the trial court erred in admitting this

evidence and evaluate any error for harm. Appellant does not complain about his

own statement that he would probably get the death penalty because he was caught

on camera, but complains only of the third party’s statement that if found guilty,

appellant would be “gone for life.” Appellant makes no argument that this testimony

had any influence in determining the jury’s verdict, and we fail to see how it could

have. The jurors learned about the two possible punishments for capital murder

during voir dire and learned the State was not seeking the death penalty. Given this,

we conclude any error did not influence the jury’s verdict and thus did not affect

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appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). We disregard any error

as harmless and overrule appellant’s fourth issue.

4. Judgment modification

Finally, appellant argues the judgment should be modified to correctly state

the name of the trial prosecutor. We may modify the trial court’s judgment to make

the record speak the truth when we have the necessary information to do so. TEX. R.

APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). The

judgment states the “Attorney for State” was Jessica Cherry. The record, however,

reflects that the trial prosecutors were Taylor Cowin and Caitlin Paver. Accordingly,

we will modify the judgment to correctly state the names of the attorneys

representing the State.

Conclusion

As modified, we affirm the trial court’s judgment.

/Ken Molberg/
KEN MOLBERG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
230066F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

FRANKLIN FULLER, Appellant On Appeal from the Criminal District
Court No. 4, Dallas County, Texas
No. 05-23-00066-CR V. Trial Court Cause No. F19-75449-K.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Molberg. Justices Nowell and
Kennedy participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

In the space after “Attorney for State,” we delete “Jessica Cherry
24084438”; we insert in its place “Taylor Cowin and Caitlin Paver”.

As MODIFIED, the judgment is AFFIRMED.

Judgment entered August 12, 2024

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