Charles Levi Miller v. The State of Texas--Appeal from 90th District Court of Young County (Per Curiam)

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State: Texas

Court: Texas Northern District Court

Docket No: 02-11-00433-CR

Case Date: 07/12/2012

Plaintiff: Charles Levi Miller

Defendant: The State of Texas--Appeal from 90th District Court of Young County (Per Curiam)

Preview:COURT OF APPEALS
SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00433-CR CHARLES LEVI MILLER V. THE STATE OF TEXAS ---------FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY ---------STATE APPELLANT

MEMORANDUM OPINION1
---------I. INTRODUCTION A jury found appellant Charles Levi Miller guilty of aggravated assault with a deadly weapon, a knife, and assessed his punishment at fifteen years' confinement and a fine of $2,000. In two issues, Miller argues that the trial court abused its discretion by admitting into evidence four knives and photographs of those knives and that in-court identifications of him by two witnesses were
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See Tex. R. App. P. 47.4.

inadmissible because they were tainted by an impermissibly suggestive pretrial identification procedure. We will affirm. II. FACTUAL AND PROCEDURAL BACKGROUND One afternoon, Kathy McCain was working alone at the Akers & Fultz office on Loving Highway in Graham when a man, later identified as Miller, came to the door of her office. Miller asked McCain if she knew the owner of an

adjacent building. McCain directed the man to Coleman's Packers, the business across the street, for the information. Miller left McCain's office and went to Coleman's Packers, where he spoke to Stacy Creswell. Approximately ten

minutes later, Miller returned to McCain's office and asked to borrow a phone book. Miller returned the phone book to McCain, and when she reached out to take it, Miller grabbed her left arm and pushed her down onto a couch. Miller held a knife to McCain's throat and told her to do as he said or he would slit her throat. McCain began praying out loud to God and Jesus and pleaded with Miller to stop. Miller attempted to take off McCain's jeans while still holding the knife but was unable to do so. McCain continued pleading with Miller and finally

convinced him to stop. Miller stood, releasing McCain, hugged her, and left. McCain and Creswell each gave officers a description of Miller and the truck he was driving. Officers located the truck at a house and found Miller lying on the floor inside the house. Miller accompanied officers to the police station and consented to a search of his home and truck. Officers found two knives in

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the house and two in the truck. At the police station, Miller confessed to the assault and gave a written statement to officers. Two days after the attack, Sergeant Terry Vanlandingham met with McCain at the Akers & Fultz office and met with Creswell at the Graham Police Department to show them a photographic lineup that he had compiled from the Young County Jail database. The photographic lineup consisted of six black and white photographs of males approximately the same size and build. Each

photograph contained a marker with an identification number and the booking date of the individual. Miller's photograph was the only one that had the same booking date as the offense date. McCain and Creswell both identified Miller in the photographic lineup. III. ADMISSIBILITY OF THE KNIVES AND PHOTOGRAPHS In his first issue, Miller argues that the trial court abused its discretion by admitting into evidence the four knives that were found in his truck and house and the photographs of those knives because there was no evidence that the knives were used in the commission of the assault. We will assume error and apply a harm analysis.2

The parties appear to dispute whether the knives were admissible as evidence of the actual knife used in the assault or as demonstrative evidence of replicas or duplicates of the actual knife used. We need not decide whether the complained-of evidence was admissible for either reason because, applying the appropriate standard of review, we hold that any error was harmless. 3

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Because any error in admitting this evidence was not constitutional, rule 44.2(b) is applicable. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have a 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); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the State's theory and any defensive theories, whether the State emphasized the alleged error, closing arguments, and even voir dire, if applicable. Id. at 355

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