O.C. Hawley, III v. The State of Texas--Appeal from 286th District Court of Hockley County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2008 » O.C. Hawley, III v. The State of Texas--Appeal from 286th District Court of Hockley County

State: Texas

Court: Texas Northern District Court

Docket No: 07-07-00464-CR

Case Date: 11/04/2008

Plaintiff: DANIEL HERNANDEZ

Defendant: THE STATE OF TEXAS--Appeal from 275th District Court of Hidalgo County

Preview:Arnold Johnson v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County
98-00850 Johnson v State of Texas.wpd No. 04-98-00850-CR Arnold JOHNSON, Appellant v. The STATE of Texas, Appellee From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 96-CR-0314 Honorable Mary Roman, Judge Presiding Opinion by: Alma L. L pez, Justice Sitting: Phil Hardberger, Chief Justice Tom Rickhoff, Justice Alma L. L pez, Justice Delivered and Filed: June 14, 2000 AFFIRMED AS REFORMED The appellant, Arnold Johnson, was indicted for the offense of capital murder and later found guilty by jury of the lesser included offense of aggravated robbery. The jury assessed punishment at life imprisonment. Appellant has raised eleven issues in this appeal. Because we find no reversible error, we affirm the conviction. Background On October 26, 1995, Frank Johnson, accompanied by Demeture Delane and Reginald Taylor, drove to an automotive shop ("Jesko") to sell and deliver a quantity of marijuana to Appellant. Upon arrival, Frank Johnson went inside the Jesko, leaving the two passengers in the car. A short time later an unidentified individual exited the shop and entered the car with Delane and Taylor still inside and parked it at the rear of the Jesko. The driver then went in the front entrance of the Jesko with Taylor and Delane, respectively, following him a few minutes later. After Taylor entered the Jesko, however, Delane spotted Carl Brooks pointing a gun in their direction and fled. Taylor, unable to flee, was made to enter an office inside the Jesko occupied by Frank Johnson, Carl Brooks, and an unidentified man. Brooks and his accomplice then robbed Taylor and Frank Johnson. With the accomplice driving, Brooks then took Taylor and Johnson on a ride during which Frank Johnson was killed by Brooks. Taylor, however, managed to escape by jumping out of a door. During trial, a number of witnesses identified Appellant as Brooks's accomplice. Legal Sufficiency In his ninth and tenth issues, Appellant challenges the legal and factual sufficiency of his conviction. Where a party seeks reversal of a conviction on grounds of both legal and factual insufficiency, an appellate court must first determine whether the evidence adduced at trial was legally sufficient to support the verdict. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Our determination of sufficiency of the evidence requires that we review all

file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

evidence, both admissible and inadmissible. Gardner v. State, 699 S.W.2d 831, 835 (Tex. Crim. App. 1985). The standard of review that a court must follow in making a determination of legal sufficiency requires that it ask whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). While conducting this review, a court does not re-evaluate the weight and credibility of the evidence but merely ensures that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Finally, a finding of legal insufficiency under the Jackson standard requires that the reviewing court render a judgment of acquittal. Clewis v. State, 922 S.W.2d at 133. The essential elements of aggravated robbery requires a finding that: (1) a person (2) in the course of committing theft (3) with intent to obtain or maintain control of property (4) intentionally or knowingly (5) threaten another with, or place another in fear of (6) imminent bodily injury or death and (7) uses or exhibits a deadly weapon. Tex. Pen. Code Ann. 29.02-.03 (Vernon 1994). Additionally, a person is criminally responsible as a party to an offense if, acting with intent to promote or assist in the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person in commission of the offense. Id. at 7.02. Participation in a criminal offense may be inferred from the circumstances as well as events occurring before, after, or during the commission of the offense; likewise, circumstantial evidence may be sufficient to demonstrate that one was a party to the offense See Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). In his legal sufficiency issue, Appellant argues that, because Taylor was the only witness who entered the office where the robbery occurred and never identified Appellant as one of its occupants, the evidence did not support a finding beyond a reasonable doubt that Appellant, as a party or otherwise, used or exhibited a deadly weapon in the course of committing theft. We disagree. While Taylor was the only witness who actually entered the office where the robbery occurred, the State adduced testimony from numerous other witnesses reasonably calculated to convice the jury that Appellant was a party to the aggravated robbery of Frank Johnson. The record shows that the State introduced testimony from Zachary Greenwood, a patron of the Jesko on the day Johnson was robbed, which placed both Brooks (the gunman) and Appellant at the garage on the day of the robbery. The following is a summary of Greenwood's testimony. Greenwood arrived at the shop around noon and sometime shortly thereafter Brooks and Appellant arrived. Brooks and Appellant left the Jesko about 30 minutes to an hour later and subsequently returned with Brooks brandishing a TEC-9 handgun. Frank Johnson then arrived by himself, left, and subsequently returned about two hours later with two other men who remained in the car. Frank Johnson, Brooks and Appellant then went into the Jesko office with Frank Johnson carrying something apparently covered by a bag, with Appellant later emerging from the Jesko and driving Frank Johnson's car to the back of the building. The two men waiting in the car then exited with Appellant and proceeded to enter the Jesko, with one of these two men subsequently fleeing the Jesko on foot. Shortly afterwards, a mechanic named Bubba ran from the Jesko and yelled that "they were jacking Frank," with Greenwood testifying that "jacking" meant "robbing a person." Greenwood then testified that Appellant backed the car up to the front of the Jesko, with Brooks, Frank Johnson and another man entering the car. The car then left the Jesko, with Greenwood testifying that he noticed some sort of commotion in the back seat. Greenwood concluded by testifying that Brooks and Appellant returned to the Jesko, without wearing their shirts, about 30 to 40 minutes later and arriving in a different car than the one they left in. Demeture Delane testifed that, on the day of the robbery, he and friend Reggie Taylor first met up with Frank Johnson at the Candlestick Apartments. The three men then decided to smoke hollowed out cigars filled with marijuana; however, Frank asked them to first go with him to sell and deliver a quantity of marijuana to Appellant. Frank then took them to the Jesko where Appellant was waiting and parked the car. He then took a bag of marijuana out of the trunk and went inside the Jesko. About ten minutes later, Appellant emerged from the Jesko, got into the car with Delane and Taylor, and parked the car at the rear of the Jesko. Appellant then exited the car and entered the front of the Jesko, with Taylor and Delane following at a distance. Taylor first entered the Jesko; however, as Delane began entry, he saw Frank Johnson sitting in a chair in the corner and Brooks pointing a gun in his direction. Brooks then pointed a gun in the direction of Delane and Taylor and instructed them not to run. Delane disregarded the instruction and fled the scene. He later testified that Appellant wore a white muscle shirt on the day in question and subsequently

file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

identified both Appellant and Brooks in photo lineups. Reginald Taylor testified that he, Delane and Frank Johnson had decided to smoke some marijuana but that Frank first had to go to the Jesko to sell marijuana to Appellant. After parking at the Jesko, Frank wrapped the marijuana in a towel and brought it inside to sell, while Taylor and Delane waited outside in the car. Sometime thereafter, a man wearing a white muscle shirt with a "Pookie" tattoo near his chest, later identified by Taylor as Appellant, entered the car and drove it around to the rear, claiming that Frank had told him to do so. Appellant then exited the car and entered the Jesko. After some hesitation, Taylor and Delane proceeded to enter the Jesko. Taylor entered first; however, upon entry Delane saw Brooks brandishing a handgun and fled. Taylor, however, was not quick enough and was made to stay. Taylor testified that he was then made to enter the Jesko office where Frank Johnson was being held in his boxer shorts, tee shirt, and socks. Brooks then made Taylor strip down as Frank had done. Taylor testified that at this point, he, Frank, Brooks and an unidentified man wearing a white muscle shirt were the only people in the office. Brooks and the unidentified man had already taken a pound of marijuana and twenty five dollars from Frank Johnson but were seeking more. Frank Johnson then told the two men that he had six more ounces of marijuana in the car, causing the unidentified man wearing the white muscle shirt to move the car to the front of the Jesko. Brooks and another individual named Demitri Jones then escorted Frank Johnson and Taylor out to the car, with Taylor in the back passenger seat, Frank Johnson in the front passenger side, the unidentified man driving and Brooks seated behind him. After driving for five to ten minutes, the driver turned down a dirt road and Brooks, after encouragement by the driver, shot Frank Johnson in the back of the neck. Taylor, in an attempt to escape, jumped out of the rear passenger door while simultaneously watching Brooks shoot Frank Johnson in the neck. Taylor was uncertain, however, whether the unidentified person who both drove the car at the time of the shooting and acted as Brooks's accomplice during the robbery was the same individual, identified as Appellant, who had earlier parked Frank Johnson's car at the rear of the Jesko and proceeded inside the Jesko. Evelyn Whitley testified that on the day of the robbery, she first saw Appellant and Brooks around 11:00 a.m. at her home, seeking her nephew. Around 2:50 p.m., she again saw Appellant and Brooks near Ferris Street. Neither had on shirts and both appeared sweaty and somewhat out of breath as if they had been running. She then agreed to give both men a ride back to the Jesko where she dropped them off. Richard Dukes testified that sometime between 12:00 p.m. and 2:00 p.m. on the day of the robbery, he was at the Jesko having his car worked on. After having a conversation with a group of young men crowded around his car, he decided to move it to the parking lot of a gas station next door to the Jesko. He then testified that Appellant drove away from the Jesko in a car with three or four other occupants. Finally, the State introduced prior testimony of an unavailable witness, Mack Simpson. This prior testimony, consisting of questioning about a statement Simpson had given to police, showed that Simpson admitted seeing Appellant on the day of the robbery and that Appellant had told him that "we got Frank's whore ass." The testimony also revealed that Simpson had denounced, as a lie, the entire statement he had given to police. In summary, Appellant's claim of legal insufficiency relies on the fact that Taylor, the only eyewitness in the room where the robbery occurred, failed to positively identify Appellant as Brooks's accomplice to the robbery. We are not persuaded. The record reveals that the jury charge correctly instructed the jurors on the elements of aggravated robbery and the law of parties. As appellate judges, our task is not to reevaluate and weigh the credibility of the evidence, but rather to ensure the rationality of the factfinder. Jackson v. Virginia, 443 U.S. 307, 318-20. After reviewing the evidence in the light most favorable to the conviction, we find the evidence to be legally sufficient for a rational jury to find the essential elements of aggravated robbery beyond a reasonable doubt. As a result, we overrule Appellant's issue challenging the legal sufficiency of the evidence. Factual Sufficiency After a court of appeals has determined that the evidence is legally sufficient to support the verdict, it may proceed to further review an appellant's claim of factual sufficiency. Clewis, 922 S.W.2d at 133. The Court of Criminal Appeals has held that the proper standard of review for factual sufficiency of the evidence requires that the reviewing court set aside the verdict only when it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and

file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

unjust. Id. at 129. Upon a determination of factual insufficiency, a reviewing court should vacate a conviction and remand the cause for a new trial. Id. at 133-34. Appellant contends that, because Taylor failed to positively identify the man in the Jesko office where the robbery occurred as Brooks's accomplice, the jury's finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We disagree. Taylor testified that the unidentified man in the Jesko office assisting Brooks with the robbery was the same individual who subsequently drove Brooks, Taylor and Frank Johnson off the parking lot in Frank's white car. Richard Dukes testified that he saw Appellant drive off the Jesko lot in Frank Johnson's car with three to four other people sometime between 12:00 p.m. and 2:00 p.m. Evelyn Whitley testified that she saw Brooks and Appellant together around 2:50 p.m. She then agreed to give both men a ride back to the Jesko. Both Taylor and Delane testified that the purpose of going to the Jesko with Frank Johnson was to sell marijuana to Appellant. In addition, both witnesses placed Appellant at the Jesko on the day of the robbery. Based upon this testimony, we do not agree that the jury's finding that Appellant was a party to the robbery was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. While Appellant's mere presence at the scene of the crime does not implicate him as a party to the offense, his participation in the offense could rationally have been inferred from circumstantial evidence offered. See Beardsley, 738 S.W.2d at 684. Accordingly, we overrule Appellant's factual sufficiency issue. Appellant's Evidentiary Issues In his first issue, Appellant asserts that the trial court erred under Rule of Evidence 803(5) by allowing the State to read into evidence the recorded hearsay testimony of a witness, Mack Simpson, from Appellant's first trial.(1) Hearsay, defined as "a statement, other than one made by the declarant while testifying at the trial or hearing [and] offered into evidence to prove the truth of the matter asserted," is not admissible unless otherwise allowed by law. Tex R. Evid. 801(d), 802. Rule of Evidence 803(5) provides for the admissibility of hearsay in the form of: A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document's unworthiness. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Id. at 803(5). Thus, for a court to properly admit hearsay testimony under this exception, the proponent--here, the State--must lay a proper predicate demonstrating that: (1) the witness possessed firsthand knowledge of the subject of the testimony; (2) the written statement was an original memorandum made at or near the time of the event and while the witness had an accurate recollection of the event; (3) the witness presently lacks recollection of the event; and (4) that the witness vouches for the accuracy of the written memorandum. Johnson v. State, 967 S.W.2d 410, 416 (Tex. Crim. App. 1998). Because the State read Simpson's testimony from Appellant's first trial into evidence at the latter trial, the testimony was a "statement other than one made by the declarant while testifying at trial" and was hearsay. Therefore, to have been properly admissible in this trial, the statement must have qualified as a hearsay exception. After examining the record, it is clear that Simpson's testimony from Appellant's first trial was not admissible under the exception provided in Rule 803(5). The record shows that during Appellant's second trial, the court twice held Simpson in contempt for refusing to testify. Therefore, Simpson did not acknowledge, at trial, the accuracy of his prior testimony subsequently read to the jury during the second trial. See id. (stating that "the witness must acknowledge at trial the accuracy of the statement"). Moreover, Simpson's testimony from Appellant's first trial repeatedly states that his earlier accounts of Appellant's admissions of the crime were "made up stories." Likewise, we find no merit to the State's argument appearing to posit that the requirements of Rule 803(5) apply only to testimony actually received into evidence by the jury. The last sentence of this rule clearly discredits any such claim as it distinguishes between testimony read into evidence and that received as an exhibit. Consequently, Simpson's prior testimony was not admissible as a recorded recollection under Rule 803(5). Having determined that Simpson's former testimony was hearsay and not admissible under Rule 803(5), we now consider Appellant's second issue--whether the
file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

evidence was admissible under Rule 804(a)(2) and 804(b)(1), as the State contends, or whether Rule 805 precluded such testimony. Rule 804(b)(1) provides that, in situations where the declarant is unavailable as a witness, a hearsay exception exists for "testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Tex R. Evid. 804(b)(1). Unavailability includes a situation in which a declarant refuses to testify regarding the subject matter of his statement despite a court order requiring such testimony. Tex R. Evid. 804(a)(2). However, while a document or testimony may satisfy the requirements of a particular hearsay exception such as Rule 804(b)(1), it may still constitute inadmissible hearsay unless each part of such document or testimony conforms with an exception to the rule against hearsay. Tex R. Evid. 805. Stated more precisely, "[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." Id. As previously established, Simpson's prior trial testimony, consisting of an out-of-court statement given to the police, was hearsay. The State's reading of this testimony to the jury then made it hearsay within hearsay. Assuming that the testimony complies with the exception provided in Rule 804(b)(1), as the State contends, it nevertheless fails under the hearsay-within-hearsay exception as Simpson's prior testimony did not qualify under Rule 803(5). The State argues, however, that, regarding the admission of Simpson's testimony, Appellant failed to preserve error and that the testimony should not be subject to analysis under Rule 803(5). We disagree. The State advances two arguments for why Appellant failed to preserve error, the first being that Appellant failed to enter a Rule 803(5) objection at the first trial. In support of this claim, the State cites Rodela v. State where the court allowed the court reporter to read to the jury, over the State's objection, an unavailable witness's testimony from a pretrial suppression hearing. 829 S.W. 2d 845, 849-50 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). On appeal, the court of appeals upheld the admission of the testimony given at the suppression hearing. Id. at 850. The State's reliance on Rodela is misplaced, however, as Rodela deals with a party's failure to object to hearsay offered at a pretrial hearing of the same proceeding. In contrast, Appellant's failure to object to the admission of hearsay occurred at his first trial, not on retrial. We find no authority for the State's proposition that preservation of error occurring on retrial requires an objection to the same error occurring at the previous trial. Preservation of error under Rule 33.1of the rules of appellate procedure requires that a timely objection be made with the trial court, specifying the grounds for the ruling sought and coupled with a ruling on the objection. Tex. R. App. P. 33.1. Appellant complied with these requirements and therefore preserved error under Rule 803(5). The State also claims that Appellant failed to preserve error because Appellant's objection to Simpson's testimony was global and that he inadequately briefed this issue. A review of the record shows that the trial court heard the arguments of each party outside the presence of the jury regarding the admissibility of Simpson's prior testimony. While neither side's argument was particularly cogent, it is apparent from the record that Appellant did make known to the trial court the specific statements that he felt were inadmissible. See Miller v. State, 741 S.W.2d 382, 387 (Tex. Crim. App. 1987). Accordingly, Appellant preserved error under Rule 803(5). Finally, the State argues that even if Appellant preserved error, Simpson's testimony was nevertheless admissible as a party opponent admission and therefore not hearsay. We disagree. Rule 801(e)(2) provides that, for purposes of a party-opponent admission, a statement is not hearsay if "[t]he statement is offered against a party and is . . . the party's own statement in either an individual or representative capacity . . . ." Tex R. Evid. 801(e)(2). However, this rule does not apply as Simpson does not qualify as a party opponent. See Owens v. State, 916 S.W.2d 713, 717-18 (Tex. App.-Waco 1996, no pet.). In Owens, the Appellant challenged a conviction for assaulting his girlfriend, claiming ineffective assistance of counsel. See id. at 715. The sole witness in the case had previously provided the police with a statement claiming that the defendant had assaulted her. At trial, however, the witness recanted the facts in her earlier statement and refused to implicate the defendant. See id. at 715-16. The court then admitted the statement into evidence without a defense objection. Reasoning that the witness became a party opponent when she recanted her original statement during trial, the State argued on appeal that the statement represented an admission by party opponent. See id. at 717. The court of

file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

appeals disagreed and concluded that in a criminal proceeding the party opponent of the accused is the State, and not the witness/victim. See id. Similar to the facts in Owens, Simpson--a witness for the State--recanted his earlier statement to police during the first trial; therefore, Simpson was not a party opponent. Because Simpson was not a party opponent, Simpson's statement was not properly admissible under Rule 805. Having concluded that Simpson's testimony was inadmissible under Rules 803(5) and 805, we now consider Appellant's third issue--whether the evidence was allowable as impeachment evidence under Rule 613, as the State contends, or, as Appellant argues, whether the State's use of this testimony was a mere subterfuge to place otherwise inadmissible evidence before the jury. Rule 613(a) allows a party to examine a witness concerning the witness's prior written or oral statement provided that the witness "be told of the contents of such statement and the time and place and the person to whom it was made, and . . . [have] an opportunity to explain or deny such statement." Tex R. Evid. 613(a). Likewise, the law subjects the credibility of a witness to attack by any party, including the party calling such witness. Tex R. Evid. 607. However, even where a party lays the proper predicate for impeachment of its own witness under Rule 613(a), the courts recognize the danger that a party may attempt to use a prior inconsistent statement under the guise of impeachment to place evidence that is not otherwise admissible before the jury and that the jury may treat the impeachment evidence as substantive evidence. Miranda v. State, 813 S.W.2d 724, 735 (Tex. App.--San Antonio 1991, pet. ref'd). To avoid this result, i.e., to prevent otherwise inadmissible evidence from being admitted through the "back door," the opponent of the evidence must resort to Rule 403 as its grounds for objection or else waive any error.(2) Id. at 734. The State argues that Appellant failed to object under Rule 403, but instead objected under Rule 613, and that he therefore waived any error in the admission of Simpson's testimony. We agree. In his brief, Appellant argues that the State's use of Simpson's testimony for impeachment purposes was a "back door" means of getting otherwise inadmissible hearsay into evidence. At trial, Appellant sought to preserve this claim by stating that "[o]ur objections, your Honor, just so that they are clear for the record, we would object that . . . it's (sic) [the admission of Simpson's testimony] improper impeachment evidence under Rule 613 . . . ." As held in Miranda, preservation of such error requires a Rule 403 objection as impeachment of one's own witness is allowed under Rules 607 and 613(a). Miranda, 813 S.W.2d at 734-35. Because this clarifying objection failed to invoke Rule 403, Appellant waived any error in the admission of Simpson's testimony. Accordingly, we overrule Appellant's first three issues. Evidence of Prior Criminal Record In his fourth issue, Appellant argues that the trial court erred by admitting evidence of his criminal record. Specifically, Appellant complains about an exchange between the prosecutor and State's witness, Ralph Looney, a fingerprint examiner for the San Antonio Police Department. In response to the prosecutor's questions, Officer Looney testified that Appellant had a criminal investigation number (or CID), thus implying that Appellant had a prior criminal record.(3) Appellant relies on Rule 404(b) of the rules of evidence to argue that this evidence was inadmissible. Rule 404(b) provides, in pertinent part, that: [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake of accident . . . . Tex. R. Evid. 404(b). To be admissible, the proponent of such evidence must persuade the trial court that the extraneous evidence is being offered for some purpose other than character conformity. See Rankin v. State, 974 S.W.2d 707, 719 (Tex. Crim. App. 1996). Although extraneous evidence is not permitted solely to show character conformity, it may be admissible where such evidence makes a "fact of consequence" in the case more or less likely. See Rankin, 974 S.W.2d at 710. A fact of consequence includes either an elemental fact or an evidentiary fact from which an elemental fact may be inferred. Id. An evidentiary fact that stands unconnected to an elemental fact is not a fact of consequence. Id. We review a complaint about the admission of extraneous offense evidence under an abuse of discretion standard, and uphold the lower court's decision to admit where the decision falls "within the reasonable zone of disagreement." See id. at 718. As the proponent of Officer Looney's testimony, the State was required to demonstrate that the evidence about
file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

Appellant's CID number was offered for some purpose other than character conformity-that is, to show that Appellant's CID number was relevant to a fact of consequence. The State, however, failed to show relevance. The only justification offered by the State for admission of this evidence occurred at the bench conference where the prosecutor argued that "[the evidence] was part of [Officer Looney's] process of identifying the fingerprints." However, none of the fingerprints taken at the crime scene matched those of Appellant. Although the State argues that the existence of Appellant's CID number does not show that Appellant actually committed an offense, the State's earlier questioning of Officer Looney as to the purpose of CID numbers clearly links such numbers to criminal activity. Finally, the State's examination of Officer Looney concluded almost immediately after the witness divulged that Appellant had a CID number so that the evidence of Appellant's prior arrest record stood unconnected to any fact, elemental or otherwise. We also disagree with the State's argument that any error in admission of Appellant's CID number was cured when Appellant failed to timely object to the State's inquiry into such CID number during its redirect examination of Officer Looney. In support of this claim, the State relies on the portion of its redirect examination where the officer answered affirmatively to the following question: "Okay. And so [defense counsel] just asked you a minute ago, you were able to get prints on some of these people, well, actually all of these people because they happened to have criminal identification numbers, correct?" Essentially, then, the State argues that Appellant was included in the prosecutor's mention of "these people" from which prints were taken. We are not persuaded. The prosecutor's reference to "these people" necessarily refers to people mentioned by Appellant's counsel during his cross-examination of Officer Looney; however, during this cross-examination, Appellant's name is only mentioned in the following question posed to Officer Looney: "[i]t is my understanding, sir, if I heard you correctly, there were no prints from [Appellant] or anyone else that you found; is that correct?" Thus, Appellant could not have been included in the State's mention of "these people" because the police did not find his prints. The State failed to demonstrate a purpose for the testimony about Appellant's CID number other than character conformity, and as a result, the trial court abused its discretion under Rule 404(b) by allowing the testimony. Having concluded that the trial court abused its discretion, we now consider whether the error was harmful. As a violation of Rule 404(b), Rule 44.2(b) of the Rules of Appellate Procedure applies to this error. Tex. R. App. P. 44.2(b). Rule 44.2(b) requires the reviewing court to disregard any error that does not affect a substantial right of the defendant. Id. 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). Although a substantial due process right is embodied in Rule 404(b), the testimony here could not had a substantial and injurious effect upon the jury's verdict because the evidence of Appellant's CID number was greatly outweighed by the plethora of incriminating evidence outlined in our discussion of Appellant's sufficiency challenge. Prior to the State's examination of Officer Looney, the jury heard testimony from several State's witnesses, each incriminating Appellant. Unlike the testimony about Appellant's CID number, which at most indicated that Appellant had prior experience in the criminal justice system, the other testimony was relevant to the essential elements of the offense of aggravated robbery. While it appears the prosecutor attempted to exploit defense counsel's introduction of the concept of CID numbers to demonstrate the extent of Appellant's criminal history, the trial judge controlled any harm that could have resulted by refusing to admit the actual CID number. Under these facts, we cannot conclude that the admission of Appellant's CID number had a substantial and injurious effect or influence on the jury's verdict. Accordingly, we find that the trial court's error in admitting the evidence was harmless. We overrule Appellant's fourth issue. Investigation Testimony and Right to Confrontation Appellant asserts in his fifth issue that the trial court erred in admitting hearsay testimony from the State's witness, Detective Bellamy. Specifically, Appellant complains about the testimony that the detective relied upon witness statements and photo identifications of Greenwood, Delane, and Taylor in developing Appellant as a suspect. Admission of this testimony, Appellant urges, permitted the State to circumvent the hearsay rules as it indirectly bolstered the prior testimony of these questionable witnesses. In his sixth issue, Appellant argues that the erroneous admission of this hearsay testimony additionally denied him the right to confrontation of these witnesses. However, because the record fails to reflect any objection or ruling on these claims, the issues are not preserved for appellate review. Tex. R. App. P. 33.1. We overrule Appellant's fifth and sixth issues. Victim Photographs

file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

In his seventh issue, Appellant complains that the trial court erred by admitting various photographs depicting closeup images of the victim's gunshot wounds and the positioning of the victim at the crime scene. Appellant asserts that four of these photographs--Exhibits 3, 14, 15, and 17--were cumulative and that their probative value was outweighed by their prejudicial effect. We disagree. An analysis of the probative versus the prejudicial nature of evidence begins with an examination of Rule 401 of the Rules of Evidence. Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Photographs are generally admissible if verbal testimony as to their imagery is admissible, with the determination of admissibility resting within the sound discretion of the trial judge. Long v. State, 823 S.W.2d 259, 271-72 n.18 (Tex. Crim. App. 1991). Moreover, testimony, and thus photographs, of the crime scene aid the jury in determining the manner and means of the death of the victim, the force used, and occasionally the identity of the perpetrator. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). In the instant case, the photos admitted by the trial court were relevant to show such factors; therefore, the photos were relevant evidence. Rule 403, however, restricts the admissibility of such evidence by providing, in pertinent part, that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." Id. at 403. Nevertheless, Rule 403 carries a presumption that relevant evidence will be more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g). Factors a court may consider in probative versus prejudicial determination of relevant evidence include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, and whether the body depicted is naked or clothed. Williams, 958 S.W.2d at 196. Finally, in reviewing a trial court's decision regarding exclusion or admission of evidence under Rule 403, an appellate court should afford a trial court "a limited right to be wrong," so long as the result is not reached in an arbitrary and capricious manner. Montgomery, 810 S.W.2d at 391. Therefore, we will not reverse such a trial court ruling provided that it falls within the zone of reasonable disagreement. Id. We disagree with Appellant's contention that the cumulative nature of the four photographs caused their probative value to be substantially outweighed by their danger of unfair prejudice. Exhibit 3 was a morgue identification photograph consisting of a frontal view of the victim's upper torso and head regions. The photograph presented no striking detail or gruesomeness and represented the only clear and complete view of the victim's face. Exhibits 14, 15, and 17 depicted the crime scene. Exhibit 14 is a close-up of the back of the victim's head with the victim situated near the street curb; Exhibit 15 provides a slightly more panoramic view of the victim lying face down on the street, again situated near the curb, but with an empty shell casing a few feet away; Exhibit 17 appears to be a frontal view of the victim lying on the street but apparently moved from the curb. The other two remaining photos of the crime scene, of which Appellant did not object, consist of a far-off image depicting the location of the victim upon police arrival and full body image of the victim lying face-down near the curb. All of the photographs appear to depict a moderate amount of the victim's blood, either on the road, his shirt, or both. However, such photos are no more gruesome than the facts of the offense itself. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). Additionally, the three photographs complained of each have a separate significance. Exhibit 14 shows the bullet wounds from the back of the victim's head and neck; Exhibit 15 depicts the location of the body in proximity to a spent shell casing; and Exhibit 17 depicts the victim's head wounds from a frontal perspective. Accordingly, the trial court's decision to admit these photographs falls within the zone of reasonable disagreement. We overrule issue seven. Supplemental Jury Charge In his eighth issue, Appellant complains that the trial court erred under Article 36.16 of the Texas Code of Criminal Procedure by submitting a supplemental charge to the jury despite no request by the jury. Article 36.16 provides, in pertinent part, that: "[a]fter the judge shall have received the objections to his main charge . . . the judge shall read his charge to the jury as finally written . . . . After the argument begins no further charge shall be given to the jury unless required by the

file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

improper argument of counsel or the request of the jury . . . ." Tex. Crim. Proc. Code Ann. art. 36.16 (Vernon 1981). In the instant case, the jury sent the trial judge a total of five notes. The first three informed the judge that the jurors were unable to reach a unanimous decision on the capital murder charge and asked for guidance as to how they were to proceed. In response to each, the judge instructed them to continue deliberations. The fourth note informed the judge that they were tired and could not reach a decision, to which the judge responded by dismissing them for the evening. The fifth note sent by the jurors contained the following: We still cannot reach a unanimous decision on the capital murder charge. We have conducted several votes and the result has been the same - 10 - 2. Each juror has made his decision based on the evidence, which we have reviewed and discussed as a group and reviewed individually. All 12 jurors are adamant that they will not change their position whether we deliberate five more minutes, five more days, or five more months. The trial judge then prepared a supplemental charge, over objection of Appellant, instructing the jury "to continue deliberations . . . without violating your conscience." We faced a similar situation in Jackson v. State. 753 S.W.2d 706 (Tex. App.--San Antonio 1988, pet. ref'd). In Jackson, the judge sent the jury a supplemental instruction in response to the jury's note providing that "[a]fter deliberating for 4 hours we are unable to come to a verdict." Id. at 712. Although we overruled the appellant's complaint for failure to preserve error, we concluded that "[s]uch a communication does not constitute a request by the jury for anything but merely informs the trial court of the jury's status after 4 hours of deliberation." Id. Because the contents of the jury's note in the present case is substantially similar to that in Jackson, we find that it does not constitute a request by the jury for an instruction but merely informs the court of its status in deliberations. Accordingly, the trial court erred by submitting the supplemental charge. Having found error, we must now consider whether the error had a substantial and injurious effect or influence on the jury's verdict. Tex. R. App. P. 44.2 (a)(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A defendant has a substantial right that the trial judge follow the procedural rules contained within the Code of Criminal Procedure, but that right was not injured here. Rather than an injurious effect, the trial court's instruction appears to have affected the verdict in a way that was favorable to Appellant. The jury's note referred to the jury's deliberations on the capital murder charge. The trial court's note instructed the jury to continue to deliberate. Upon further deliberation, the jury acquitted Appellant of the capital murder charge--an effect favorable to the Appellant. Neither the jury's note, nor the trial court's response, referred to the aggravated robbery charge. Under these circumstances, we will not find that the trial court's error had an "injurious" effect on the jury's verdict on the aggravated robbery charge. We overrule Appellant's eighth issue. Family Violence Finding Appellant contends in his eleventh issue that the trial court erred by entering an affirmative finding of family violence. The State agrees that the trial court erroneously entered the finding, indicating that the prosecutor stated during trial that Appellant and the victim did not have a familial relationship. No evidence in the record indicates Appellant was related to the victim. As a result, the trial court's entry of an affirmative finding of family violence does not comply with the requirement that the requisite act be between members of a family or household. See Tex. Crim. Proc. Code Ann. art. 42.013 (Vernon Supp. 2000); Tex. Fam. Code Ann. 71.004 (Vernon Supp. 2000). We sustain Appellant's eleventh issue. Conclusion Having determined that no reversible error occurred during trial, but the trial court erroneously entered an affirmative finding of family violence, we reform the judgment of the trial court to delete the finding of family violence and affirm the judgment as reformed. See Williams v. State, 911 S.W.2d 788, 791 (Tex. App.---San Antonio 1995, no pet.). Alma L. L pez, Justice
file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

DO NOT PUBLISH 1. Appellant was previously charged with capital murder and convicted. The conviction was reversed by the Court of Criminal Appeals, and remanded for a new trial. See Johnson v. State, 967 S.W.2d 410, 416 (Tex. Crim. App. 1998). This appeal considers Appellant's second trial. 2. Rule 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. 3. The existence of Appellant's criminal record was revealed by the following colloquy: Prosecutor: Okay. Now, let me ask you something about these [criminal identification numbers] since defense counsel brought it up. Okay? Now, a [criminal identification number] is an identification number that's given to a person when they are arrested and put in jail, right? Witness: Yes, ma'am. Prosecutor: Okay. And so he just asked you a minute ago, you were able to get prints on some of these people, well, actually all of these people because they happened to have criminal identification numbers, correct? Witness: Yes, ma'am. Prosecutor: And the way the criminal identification number works is the lower the number, that means they were arrested longer ago, right? Witness: That's correct. Prosecutor: As the numbers go up, it means you are more recently arrested and started creating your record; correct? Witness: Yes, ma'am. Prosecutor: Now, [Appellant's] CID number -Defense: Your Honor, I object. Prosecutor: Well, he brought it up. Defense: May we approach the bench? The Court: Wait a minute. Prosecutor: He brought it up, the idea of CID's, how they are identifying the persons. So I think I'm entitled. The Court: Come to the bench, please. The following then transpired outside of the hearing of the jury: Defense: Going into someone else's criminal record by no means, no how, no way opens the door to the defendant on trial. Prosecutor: He's totally wrong. ... The Court: However, I'm not going to let the State go into whether or not [Appellant] has a -file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

Prosecutor: Judge, I can at least have [officer Looney] give the number, the CID number. It was part of his process of identifying the fingerprints. [Appellant] opened the door to it. He brought it up because it was improper. He knew it. He opened the door to it . . . . Defense: I object to that also your Honor. Same grounds. The Court: The objection is sustained. Anything else? The bench conference then concluded with the State resuming redirect examination of the witness: Prosecutor: Mr. Looney, I will ask you this. Did every one of the persons that you had prints submitted on have a criminal identification number? Defense: Same objection, your Honor. The Court: That's overruled. Defense: Same Objection. Because now [the State is] including within that list [Appellant]. The Court: Overruled. Prosecutor: He's included in the list. The Court: You may proceed. Prosecutor: Did everyone that you compared the prints against have a criminal identification number? Witness: Yes ma'am. Prosecutor: Thank you. Nothing further. Well, I'll ask you one other thing.

file:///C|/Users/Peter/Desktop/opinions/PDFs1/12938.html[8/20/2013 7:26:03 PM]

Download 12938.pdf