Opinion issued April 12, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00209-CR
ALVIN SCOTT, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1021167
MEMORANDUM OPINION Appellant, Alvin Scott, Jr., was charged by indictment with murdering the complainant, Larry Porche, with a deadly weapon, namely, a firearm. See Tex. Pen. Code Ann. § 19.03 (Vernon Supp. 2006). Appellant pleaded not guilty. A jury found appellant guilty as charged and assessed punishment at 15 years' confinement.
In three issues, appellant contends that (1) the trial court erred by allowing the State "to put on Chris Burrell, its key witness, when it knew Burrell was hostile and the sole purpose in putting him on was to introduce his prior inconsistent statement under the subterfuge of impeachment"; (2) that, "[t]o the extent it is deemed that the appellant's trial counsel waived error under [issue one] for failing to make the proper objection at the proper time, the appellant's trial counsel rendered ineffective assistance of counsel," and (3) appellant received ineffective assistance of counsel because his trial counsel "fail[ed] to request a limiting instruction as to Chris Burrell's prior inconsistent statement."
We affirm.
Background
Appellant does not dispute that he shot the complainant. Appellant contends, however, that the shooting was in self-defense.
On March 23, 2005, appellant went to the Family Dollar store where his niece, Naomi Porche, had been working for a couple of weeks. Naomi is the complainant's wife. According to appellant, he peacefully inquired about Naomi, was told that she was not there, and left. According to Naomi, appellant caused a disturbance in the store that resulted in her boss voicing some doubt about being able to retain Naomi as an employee. Naomi went home that night and told the complainant.
The next day, appellant went to his mother's house and visited with his nephew, Chris Burrell. According to appellant, he and Chris were outside looking at Chris's car when the complainant drove up, parked behind Chris's car, and got out "cussing" at appellant, saying that he "did wrong." Appellant retreated into the street as the complainant approached him. Appellant insisted that he did not know what the complainant was talking about and told the complainant to leave. The complainant followed appellant, continuing to curse at him. Appellant testified that, at some point, he might have told the complainant to "stay there." According to appellant, the complainant then said, "F- - - that, then I'll kill your ass." The record shows that the complainant apparently believed that appellant had caused Naomi to lose her job.
Appellant testified that each of them went to their respective cars. Appellant testified that he believed that the complainant had a violent personality and that he owned a sawed-off shotgun. Appellant stated that he feared for his life because he thought that the complainant was getting his gun. Appellant retrieved a handgun from his own trunk, took a couple of steps forward, and fired at the complainant, believing that the complainant was going to fire first.
Appellant testified that he did not hear the complainant start his car, but that the complainant was seated in the driver's seat at the time appellant fired. Appellant testified that he "was just trying to scare [the complainant] away," but "talked [him]self into hitting him in the shoulder or something." After appellant shot the complainant, the complainant drove away. Appellant placed the handgun back into his trunk and left quickly because he believed that the complainant was going to get his "posse." It was appellant's testimony that, throughout the incident, Chris stood off to the side and watched.
Chris likewise testified that he and appellant were outside looking at Chris's car when the complainant "came up real fast" and parked behind Chris's car. The complainant immediately got out of his car and "started cursing at" appellant, saying, "Man, you got my mother-f- - -ing wife fired. What you did was real f- - -ed up. You didn't have to do that s- - -. Why did you do that?" Appellant responded, "I didn't do a mother-f- - -ing thing" and told the complainant to leave. Chris testified that appellant and the complainant each went to their respective cars at the same time and that they each appeared to be looking for something. However, Chris initially testified that the complainant reached into his car through the passenger-side window. Then, Chris inconsistently testified that the complainant got into the driver's seat, started the car, and then started reaching around.
The State impeached this testimony with Chris's statement to Detective K. Widner, Jr., of the Baytown Police Department, given on March 24, 2005, in which Chris reported that the argument escalated until appellant told the complainant to "wait right there." Appellant then went across the street to his car and looked around in the trunk. The complainant waited for appellant to return, and Chris urged the complainant to leave. Chris stated that, moments later, appellant emerged with a pistol and started back across the street toward the complainant. Chris stated that, at that point, the complainant retreated to his car, while taking out his keys.
Chris maintained, throughout his earlier statement and at trial, that once appellant found his pistol, he took a few steps toward the complainant, who was in his car with the engine running at that moment, and then shot the complainant. Chris saw the complainant "jerk" like he had been hit, and the complainant drove away. Chris testified that he never heard the complainant threaten appellant and never saw the complainant with a weapon.
After the shooting, the complainant drove a short distance and crashed into a tree. Laura Benoit, one of the neighbors who rushed out to help the complainant, testified that she did not see a handgun in his car. Dr. Stephen Wilson, a medical examiner at the Harris County Medical Examiner's Office, testified that the bullet caused the complainant's death when it punctured his right side at his armpit, moved through his chest, perforating both lungs, and lodged in his left shoulder. Jason Schroeder, a forensic chemist at the Harris County Medical Examiner's Office, testified that the shot was most likely fired within six feet of the complainant's car. Detective Charles K. Widner, Jr., of the Baytown Police Department, interviewed Chris Burrell and took written and videotaped statements. Widner testified that there was no evidence that anyone at the scene other than appellant had a weapon. Appellant turned himself in to police. There was testimony at trial from several witnesses that appellant is not a violent person and has a reputation for being a peaceful person in the community.
Impeachment
In his first issue, appellant contends that the trial court abused its discretion by allowing the State "to put on Chris Burrell, its key witness, when [the State] knew Burrell was hostile and the sole purpose in putting him on was to introduce his prior inconsistent statement under the subterfuge of impeachment." (1)
Texas Rule of Evidence 607 expressly allows the credibility of a witness to be attacked by any party, including the party that called the witness. Tex. R. Evid. 607. However, the State may not call a witness whom it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment evidence. Hughes v. State, 4 S.W.3d 1, 4-5 & n.4 (Tex. Crim. App. 1999); Barley v. State, 906 S.W.2d 27, 37 n.11 (Tex. Crim. App. 1995). To preserve a complaint that the trial court erred in admitting evidence, the error must have been preserved by making a proper objection and by obtaining an adverse ruling on that objection. Tex. R. App. P. 33.1. In addition, the error alleged on appeal must comport with the objection at trial. Barley, 906 S.W.2d at 37.
The record reflects that Chris was the only witness, other than appellant, who could testify to the events surrounding the shooting. Appellant did not object when the State called Chris to testify. When Chris took the stand, it was established that he did not want to testify--for the reason that he did not "like law in general," that it was personal, and had "nothing to do with the whole situation." Chris testified that he did not have anything against appellant or the complainant. Chris denied being able to recall what he had said in his written and videotaped statements. Outside the presence of the jury, Chris was permitted to read his statement and was shown his videotaped statement. These statements were not offered into evidence.
Appellant directs us to specific portions of Chris's testimony, from which he extensively quotes. During this testimony, the State asked Chris several times about the content of his statement to Detective Widner. Appellant made several objections to form on the basis that the State was improperly going into the content of the statement before asking Chris to testify. On one occasion, the trial court sustained the objection, but appellant did not request an instruction to disregard.
In addition, during this testimony, the State asked Chris whether he recalled telling Detective Widner that appellant had told the complainant to "wait right there" before going to retrieve the handgun. Appellant objected on the basis of leading and "under 403 because he's going into this witness's statement," which the trial court overruled. However, appellant follows this excerpt in his brief with the statement that, "So far, the trial court's ruling is probably correct."
Thereafter, the only other objection, other than to leading, that appellant's excerpts of Chris's testimony show is one occasion in which the State asked Chris, "Isn't it true in your statement, in fact, you said that [the complainant] was standing right there next to you and you were telling him, man, you better leave?" Appellant objected "to that question under Rule 403," which the trial court overruled.
The record does not reflect that appellant objected at any time that the State had called Chris to testify "for the sole purpose" of impeaching him, as is contended on appeal. We conclude that appellant has not preserved error and that the objections made at trial do not comport with the complaint on appeal. See Tex. R. App. P. 33.1; Barley, 906 S.W.2d at 37.
Moreover, even if we were to conclude that appellant preserved error, appellant's complaint that the State called a witness it knew to be hostile and for the primary purpose of eliciting otherwise inadmissible impeachment evidence is without merit. Appellant contends that "the prosecutor in this case did exactly what Hughes v. State says he could not." See Hughes, 4 S.W.3d at 4-5 (explaining that prosecution may not call witness whom it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment evidence). However, this case is distinguishable from Hughes because, here, the State had reasons for calling Chris other than to elicit impeachment evidence. Cf. id. (considering whether record reflects that other testimony, favorable to State's position, was elicited). As appellant himself states on appeal, Chris was a "key witness." Chris was the only person, besides appellant, who could testify to all of the events that transpired from the time the complainant arrived, until the shooting. The State extensively questioned Chris about the events before and after the shooting, and the testimony comprised almost 80 pages of record developed over two days. A photographic exhibit of the scene was admitted and Chris explained to the jury the course of events in relation to the photograph via a television screen. Chris provided testimony, independent of his prior statement, that the complainant was seated in the driver's seat of his car, with the engine running, and appellant "just walked up to him and shot him." Chris testified that he never heard the complainant threaten appellant and never saw the complainant with a weapon. Hence, Chris provided important testimony that went beyond his prior statement to the police.
In addition, to show that the State called Chris solely for the purpose of impeachment, appellant would need to show that the State knew in advance that Chris would recant part of his statement. See Barley, 906 S.W.2d at 37 n.11 (explaining that, in those cases in which the State was deemed to have "known," the witness had already recanted in prior sworn testimony at previous trial or hearing). Here, as outlined above, Chris's stated reluctance to testify at the beginning of direct examination does not, as appellant contends, indicate that Chris intended to recant his prior statement to the police. In addition, Chris did not, until near the end of his direct examination, testify that he had lied to Detective Widner because he feared that he would be blamed for the complainant's death. Chris also testified that this statement that he lied was the first time that he had revealed this fact.
Accordingly, appellant's first issue is overruled.
Ineffective Assistance of Counsel
In his second issue, appellant contends that, "to the extent it is deemed that the appellant's trial counsel waived error under point of error number one for failing to make the proper objection at the proper time, the appellant's trial counsel rendered ineffective assistance of counsel."
Appellant was entitled to reasonably effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. The right to counsel, however, does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999).
To prevail, appellant must prove ineffective assistance by a preponderance of the evidence. Robertson, 187 S.W.3d at 483. Appellant must overcome the strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. Robertson, 187 S.W.3d at 482; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.).
Allegations of ineffectiveness must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). Ordinarily, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). A failure to make a showing under either prong of the Strickland standard defeats a claim of ineffective assistance of counsel. Id.
Appellant broadly states that his trial counsel "failed to make the proper objections at the proper time" without stating any specific objection or when it should have been made, and without providing any authority to support his specific contention. Appellant's argument is inadequately briefed and presents nothing for review. See Tex. R. App. P. 38.1(h); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005).
Even if we were to attempt to address appellant's contentions, the record is silent concerning trial counsel's reasons for a lack of any objection. See Gamble, 916 S.W.2d at 93. Appellant did not file a motion for new trial, in which counsel's reasons could have been developed on the record. Without testimony from trial counsel, appellant has not met his burden to overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance
or that counsel could have acted pursuant to sound strategy. See Robertson, 187 S.W.3d at 482; Gamble, 916 S.W.2d at 93; see also Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd) (explaining that failure to object to improper testimony can constitute reasonable trial strategy).
Accordingly, appellant's second issue is overruled.
Limiting Instruction
In his third issue, appellant contends that he received ineffective assistance of counsel because his trial counsel failed to request a limiting instruction "that would have prevented the jury from using [Chris's] statements as substantive evidence of the appellant's guilt."
Chris's prior, out-of-court statements to police, if offered to prove the truth of the matters asserted, likely constituted inadmissible hearsay. Tex. R. Evid. 801, 802. As such, the statements were subject to a limiting instruction. Tex. R. Evid. 105(a).
The record shows that, in the charge, the trial court instructed the jury that
the testimony of the witness, [Chris], regarding the statements of the witness [Chris], was admitted for the purpose of impeaching the said witness, [Chris], if you find it does impeach him, and you cannot consider said impeachment testimony as any evidence whatsoever of the guilt of the defendant.
Appellant complains that his counsel did not request a limiting instruction at the time that Chris's testimony regarding his prior statements to the police were admitted. The Court of Criminal Appeals has construed rule 105(a) to require that a party opposing evidence must object and request a limiting instruction when the evidence is introduced. Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001); Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994). As appellant contends, when his counsel failed to request a limiting instruction at the first opportunity, the evidence was admitted for all purposes. See Hammock, 46 S.W.3d at 895; Garcia, 887 S.W.2d at 878.
As in issue two above, however, the record is undeveloped as to counsel's reasons for not requesting a limiting instruction as to the use of Chris's prior out-of-court statements to the police at the time the statements were admitted. Appellant did not file a motion for new trial, in which counsel's reasons could have been developed on the record. Without testimony from trial counsel, appellant has not met his burden to overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance or that counsel could have acted pursuant to sound strategy. See Robertson, 187 S.W.3d at 482; Gamble, 916 S.W.2d at 93; see also Howland v. State, 966 S.W.2d 98, 105 (Tex. App.--Houston [1st Dist.] 1998), aff'd, 990 S.W.2d 274 (holding that not requesting limiting instruction can constitute sound trial strategy).
However, even if we were to conclude that counsel's performance was not within the broad range of sound professional assistance, appellant has not demonstrated that there is reasonable probability that the result of the proceeding would have been different if appellant's counsel had sought to limit the use of Chris's statements to the police sooner than in the jury charge. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Hernandez, 988 S.W.2d at 770 n.3. Appellant complains that his self-defense theory was defeated when his counsel failed to seek to limit, at the time it was admitted, Chris's testimony concerning his statements to the police. Such testimony, however, was not the only evidence that could have defeated appellant's self-defense theory.
The record shows, through appellant's own testimony, that the complainant was seated in his car with the engine running at the time appellant shot him. Appellant testified that he "was just trying to scare [the complainant] away," but "talked [him]self into hitting him in the shoulder or something." (Emphasis added). In addition, Chris maintained throughout his testimony that once appellant found his pistol, he took a few steps toward the complainant, who was in his car with the engine running, and then shot the complainant. Chris testified that he never heard the complainant threaten appellant with a weapon. Furthermore, Chris testified that the complainant had parked so close to Chris's car that a person could not have walked in between the cars, but that, when appellant shot him, the "car moved forward" and the complainant drove away. This testimony suggests that the complainant had already backed up and was leaving the scene at the time he was shot.
We conclude that it is not reasonably probable that the outcome of appellant's trial would have been different had the jury heard the limiting instruction at the time that Chris's testimony concerning his prior statements to police was admitted. We hold that appellant did not satisfy his burden under the second prong of Strickland. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Hernandez, 988 S.W.2d at 770 n.3.
Accordingly, appellant's third issue is overruled.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Keyes, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
1.