Opinion issued on March 11, 2004.
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00909-CR
DAEQUINJAMIN LAVOR WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 874733
MEMORANDUM OPINION
A jury convicted appellant, Daequinjamin Lavor Williams, of murder and assessed punishment at 45 years’ confinement. In three points of error, appellant contends that the trial court erred by (1) allowing the investigating homicide officer to give his direct opinion that the State’s two witnesses implicating appellant as the killer were telling the truth, (2) allowing hearsay statements implicating appellant as the murderer, and (3) refusing to submit appellant’s requested jury charge on sudden passion. We affirm.
Background
Ina Egenriether, Robert “Bobby” Brown’s girlfriend, testified that, while she and Brown were having drinks, on the evening of April 7, 2001, Brown made a phone call to arrange a meeting to buy some crack cocaine. Brown and Egenriether drove in Brown’s truck to get the crack cocaine at a Citgo station near Aldine Bender and highway 59. Egenriether had seen Brown purchase drugs from appellant at this location on other occasions. When she and Brown arrived, Egenriether saw appellant, who she knew as “Booger” or “Bubba,” deliver a couple of rocks of crack cocaine to Brown in return for a $50 bill. Appellant then demanded that Brown return the cocaine because the $50 bill was not real, and appellant threatened to shoot Brown. Brown told appellant that the money was real and started to drive away. After appellant pursued him, Brown stopped his truck, got out of the truck, and returned the drugs to appellant. Appellant then left, taking both the drugs and Brown’s money. Brown cursed and was upset because appellant took his money. Brown got in his truck, pursued appellant, and ultimately rammed into the back of the car in which appellant was a passenger. Appellant then partially climbed out of the passenger door’s window and aimed a gun toward Egenriether who rode in Brown’s passenger seat. She ducked and heard a gunshot. When Egenriether looked up, she saw that Brown had a bullet wound in his head. Egenriether got out of the truck and sought help.
After the shooting, Egenriether was taken to the police station where she gave an initial statement indicating that she did not know the shooter. After returning to Brown’s house where she also lived, she called her friend, Danny Roberts, to pick her up because she was afraid that appellant would try to shoot or kill her. Roberts testified, over appellant’s hearsay objections, that Egenriether told him the following about the incident: Brown called “Booger” for some dope; when they got the dope, appellant said the money was not real; appellant grabbed the money and dope and took off; Brown ran into appellant with his truck at a high rate of speed; appellant reached out the window and shot three times at the windshield of Brown’s car; Egenriether jumped down on the floorboard; Egenriether got scared and took off running across the freeway trying to wave someone down; “Booger” did it; and Egenriether was scared that he would come after her because she was the only witness to the murder. Roberts testified that, when Egenriether told him what had occurred, it was “a few hours” after the shooting and she appeared upset, afraid, and was crying. He encouraged her to call the police, but she initially did not want to call them “because she was shook up. She didn’t know what to do.”
Approximately eight days later, Egenriether contacted the police. Houston Police Department Officer Richard Martinez, along with another investigator, came to Roberts’s house where Egenriether was staying. Roberts told them what Egenriether told him about the incident and stated that he knew who “Booger” was. Both Egenriether and Roberts identified appellant in a photospread. Egenriether gave the investigators a revised statement, identifying appellant as the individual who shot and killed Brown. She testified that she initially was afraid to tell police that appellant shot Brown because drugs were involved and she thought that appellant might try to kill her.
Officer Martinez, who spoke with her at the scene and then at the police station, testified that Egenriether was “really frantic,” “shaken,” “scared,” and “had blood all over her.” Martinez believed that she gave incomplete statements of what occurred due to her being fearful and confused. He testified that people who experience traumatic episodes sometimes forget things and that it was common to have witnesses to a murder unwilling to get involved for fear of retaliation or getting in trouble. He thought that there were gaps in Egenriether’s initial statement and that something was missing or that she was not being completely honest.
Officer Martinez testified, without objection, as to subsequent statements made by Egenriether in her second statement. His testimony, reciting what Egenriether told him regarding the shooting, corroborated Egenriether’s trial testimony. Egenriether told Martinez that she knew a guy by the name of “Booger” who “sells crack cocaine” and that Brown set up a $50 dope deal with “Booger” at highway 59 and Aldine Bender. Her discussion with Martinez was transcribed, and Martinez testified that the investigators then obtained an arrest warrant for appellant based on Egenriether’s identification of appellant as the man who shot and killed Brown.
Appellant testified on his own behalf at the guilt-innocence phase of trial. He admitted having a part-time job selling drugs, including crack cocaine and admitted selling drugs to Brown several times before the shooting. He denied being present at the time of the offense, testified that he was celebrating his birthday, and relied on an alibi defense. He testified that he did not shoot or kill Brown, that he was not claiming self defense, and stated, “I wasn’t even there.”
Opinion Rebuttal Testimony
In his first point of error, appellant contends that “the trial court erred in allowing the investigating homicide officer to give his direct opinion that the State’s two witnesses implicating appellant as the killer were telling the truth.”
A trial court’s decision to admit evidence is reviewed for an abuse of discretion. Goff v. State, 931 S.W.2d 537, 553 (Tex. Crim. App. 1996); Pierre v. State, 2 S.W.3d 439, 442 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). A trial court’s ruling must be upheld if reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
It is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness. See Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). This type of testimony is inadmissible because it does more than “assist the trier of fact to understand the evidence or to determine a fact in issue”; it decides an issue for the jury. Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993). One exception to this rule is found in the rule of optional completeness, which grants the opposing side a right to reply and correct a false impression left with the jury. Goldberg v. State, 95 S.W.3d 345, 375, 386 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). This rule guards against “the possibility of confusion, distortion or false impression that could rise from the use of a portion of an act, writing, conversation, declaration or transaction out of proper context.” Livingston v. State, 739 S.W.2d 311, 331 (Tex. Crim. App. 1987). “However, a party may not stray beyond the scope of the invitation.” Schutz, 957 S.W.2d at 71.
Appellant argues that, by allowing Officer Martinez to answer questions regarding the veracity of Egenriether and Roberts, Martinez supplanted the jury’s role as “lie detector” and “crossed the line” by injecting his personal and expert opinion. We disagree.
On cross-examination, defense counsel impeached Egenriether through extensive questioning showing prior inconsistent statements between her initial and subsequent statements to the police and her trial testimony and by showing that she was on deferred adjudication community supervision for possession of crack cocaine. Defense counsel also impeached Roberts by showing that he had many prior felony convictions.
Further, on cross-examination, defense counsel asked Officer Martinez a series of questions regarding the credibility of Egenriether and Roberts. Defense counsel asked about Martinez’s earlier testimony stating that he did not have a good feeling about Egenriether’s story and he felt she was leaving things out, lying to him, and not being fully truthful. Defense counsel asked Martinez if he recalled Egenriether stating that she had drunk several whiskeys and beers and further asked Martinez if he agreed that intoxication can affect the manner in which people perceive things. Martinez was asked to confirm that Egenriether was a “crack addict” and that Roberts had at least one felony conviction. Defense counsel then asked, “still it doesn’t change the fact that people who run in those kind of circles and been to the penitentiary all the time are not credible, generally; isn’t that correct?” Martinez replied, “I would agree.” Defense counsel later asked, “So there was some degree of pressure applied for [Egenriether] to change her story; isn’t that correct?” and Martinez replied, “Well, for her to tell us the truth.” Defense counsel then asked, “Right. And quit lying to you, right?” and Martinez replied, “Right.” Defense counsel asked about Egenriether’s second statement and how it was substantially different from her initial statement in several respects, including her admission to drug use in the second statement “when she had lied about it in the first statement.”
On re-direct, the State asked:
Q.Officer Martinez, just a couple of quick questions. You said before the break that persons who have felony convictions are not credible. Do you remember saying that earlier in your testimony?
A.Yes.
Q.Did you believe, based upon your investigation and your interviews and your assessment of this case, that [Egenriether] is credible?
Defense Counsel: Excuse me, Judge, that invades the province of the jury. It’s an improper question to get a personal opinion on veracity like that.
The Court:That’s overruled.
A.Yes. Yes. I felt she was.
Q.Do you believe that she was telling the truth when she said that this man shot Bobby Brown?
Defense Counsel: Same precise objection, Your Honor.
The Court:Yes, sir. Overruled.
A.Yes.
Q.Did you believe that Danny Roberts was credible?
Defense Counsel: Same objection, Your Honor, invades the province of the jury to ask for a personal opinion of the officer on the veracity of a witness.
The Court:Yes, sir. Overruled.
Defense Counsel: Bolstering of the witness, Your Honor, also.
The Court:Yes, sir. Overruled.
Q.And what was your answer, sir?
A.Yes.
By impeaching the State’s witnesses and cross-examining Martinez regarding the credibility, or lack thereof, of Egenriether and Roberts, defense counsel invited the State to respond on re-direct. The complained-of evidence was admissible, not to show that Egenriether and Roberts were telling the truth or to bolster their testimony, but to correct a false impression left with the jury that Martinez doubted the credibility of Egenriether and Roberts. Cf. Arzaga v. State, 86. S.W.3d 767, 776 (Tex. App.—El Paso 2002, no pet.) (“Because [the officer’s] testimony has no purpose other than to show that the State’s witnesses were telling the truth, the trial court erred in admitting it.”).
We overrule appellant’s first point of error.
Hearsay
In his second point of error, appellant contends that “the trial court erred in allowing Danny Roberts to testify about Egenriether’s hearsay statements implicating appellant as the murderer.”
A trial court has broad discretion in determining whether evidence is admissible as an exception to the hearsay exclusionary rule. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Kubin v. State, 868 S.W.2d 394, 396 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).
Appellant argues that Egenriether’s statements to Roberts could not be admissible under the excited utterance exception to hearsay because they fell short of the “emotional threshold” requirement, were not spontaneous, and did not result from impulse.
Appellant was trying to prevent Roberts from testifying regarding what Egenriether told him concerning the night of the shooting. Appellant objected to hearsay when the State asked Roberts, “What did [Egenriether] tell you that she was so upset about?” The trial court overruled the objection, and Roberts responded, “She wanted me to come get her because she was afraid Booger was going to come shoot her, too.” However, the following testimony was admitted without a hearsay objection:
Q.Okay. What did she tell you happen[ed] after they hit him with the car?”
A. [Egenriether] said that Booger reached out the window and shot three times at the windshield.
Q.Okay. And did they tell you what happened next, after he shot at the windshield?
A. She jumped down on the floorboard.
Although he complains about Roberts’s testimony, appellant failed to object when the same evidence was presented again. Further, Egenriether’s and Martinez’s testimony, offering the same evidence, was admitted without an objection at trial. When similar evidence is admitted without objection, overruling an objection to evidence will not result in reversal. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Any error in the admission of hearsay testimony is harmless in light of other unobjected-to evidence proving the same fact. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).
We overrule appellant’s second point of error.
Sudden Passion
In his third point of error, appellant argues that the trial court erred, in the punishment phase of trial, by refusing to instruct the jury on whether appellant caused Brown’s death under the immediate influence of sudden passion.
An accused is entitled to an instruction on every defensive issue raised by the evidence whether that evidence is strong, weak, contradicted, unimpeached, or unbelievable. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993); Benavides v. State, 992 S.W.2d 511, 526 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). We must, therefore, consider all of the evidence raised at trial, regardless of the strength of the evidence or whether it is controverted. Reese v. State, 877 S.W.2d 328, 333 (Tex. Crim. App. 1994).
Consequently, if the record reveals any evidence that appellant acted under the immediate influence of sudden passion arising from an adequate cause, the trial court should instruct the jury on this mitigating issue. Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003). The evidence may not, however, be so weak, contested, or incredible that it could not support such a finding by a rational jury. See Moore v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998); Benavides, 992 S.W.2d at 526. “The mere fact that a defendant acts in response to the provocation of another is not sufficient to warrant a charge on sudden passion. Instead, there must be some evidence that the defendant was under the immediate influence of sudden passion.” Trevino, 100 S.W.3d at 241.
We review evidence offered in support of a defensive issue in the light most favorable to the defense. Benavides, 992 S.W.2d at 525. The trial court must submit an instruction on sudden passion if there is some evidence of: (1) a legally adequate cause that would produce anger, rage, resentment, or terror sufficient to render an ordinary person incapable of cool reflection and (2) the accused’s excited and agitated state of mind arising out of provocation by the victim or someone acting with the victim at the time of the killing. Id. at 526. In considering whether any evidence is raised on this punishment issue, we review the record from both the guilt-innocence and punishment phases of the trial. Trevino, 100 S.W.3d at 238.
During the punishment phase, a defendant may raise the issue as to whether he caused the death of an individual under the immediate influence of sudden passion arising from adequate cause. Tex. Pen. Code Ann. § 19.02(d) (Vernon Supp. 2004). If the defendant can prove the issue of sudden passion by a preponderance of the evidence, the offense is a felony of the second degree rather than of the first degree. Id. “Sudden passion” is defined as “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.” Tex. Pen. Code Ann. § 19.02(a)(2) (Vernon Supp. 2004). “Adequate cause” is defined as “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Tex. Pen. Code Ann. § 19.02(a)(1) (Vernon Supp. 2004).
During the punishment phase of trial, appellant requested a jury charge on the issue of sudden passion. The trial court denied the request, noting that there was “just absolutely no evidence of [sic] specifically showing that . . . the defendant was acting under sudden passion. There is absolutely no evidence presented in the record as to his frame of mind at the time of the shooting. And certainly no evidence that would show that he was suffering from sudden passion arising from an adequate cause.” We agree.
Appellant did not testify at the punishment phase of trial and did not offer any direct evidence addressing the issue of sudden passion arising from adequate cause. In the guilt phase of trial, appellant denied being present at the shooting. Nonetheless, appellant contends that the issue of sudden passion was raised because Brown provoked appellant by ramming his truck “real hard” into appellant’s smaller car. Appellant further directs us to Egenriether’s first statement to the police in which she stated that the shooter “hollered” twice just before he shot Brown. Appellant argues that, under Moore v. State, 969 S.W.2d 4 (Tex. Crim. App. 1998), both the ramming of the car and appellant’s “angry” hollering at Brown are instances that constitute sudden passion evidence.
Appellant’s reliance on Moore is misplaced. In Moore, after leaving a club, two groups of men confronted each other in the parking lot, and the victim and the defendant were involved in the “highly charged atmosphere.” 969 S.W.2d at 7, 11. The victim acted “hostile and intoxicated” and attempted to hit the defendant twice with his car. Id. The defendant jumped out of the way to avoid being struck. Id. Someone in the crowd threw appellant a rifle, and appellant then shot the victim. Id. at 7–8. The trial court found that, based on the facts presented in this “highly charged atmosphere,” a jury could have rationally found that such events would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection, thus justifying the sudden passion instruction. Id. at 11. Those facts are not present in this case.
A sudden passion charge should be given if there is some evidence showing that appellant’s mental state “rose beyond a bare claim of fear or was so strong and overpowering that it rendered him incapable of rational thought and collected action.” Jones v. State, 963 S.W.2d 177, 180 (Tex. App.—Fort Worth 1998, pet. ref’d); see also Trevino, 100 S.W.3d at 238. Here, there was no evidence, in either phase of trial, that would demonstrate that appellant’s mental state was such that he was incapable of rational thought and collected action. Cf. Trevino, 100 S.W.3d at 239 (holding that some evidence of sudden passion consisted of the defendant “freaking out,” “scared and panicked,” “crying and shaking,” “pacing,” “consistently upset and crying,” “sounded distressed,” and “looked past” the investigator).
We hold that the trial court was not presented with any evidence that appellant’s situation rendered him incapable of rational thought. See Jones, 963 S.W.2d at 180. Nor does the record support appellant’s claim that he was acting with sudden passion arising at the time of the offense. See Trevino, 100 S.W.3d at 238. Thus, we hold that the trial court did not err in denying appellant’s request to instruct the jury on the issue of sudden passion in the punishment phase of the trial.
We overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.4.