Opinion issued April 17, 2008
In The
Court of Appeals
For The
First District of Texas
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NO. 01-06-01116-CR
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RICKY PITTS JR., Appellant,
V.
THE STATE OF TEXAS, Appellees
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1031447
MEMORANDUM OPINION
A jury found appellant, Ricky Pitts Jr., guilty of capital murder. See Tex. Pen. Code Ann. § 19.03 (Vernon 2003 & Supp. 2007). The trial court assessed punishment at life in prison, the State’s not having sought the death penalty. We determine (1) whether the evidence is legally and factually sufficient to prove that appellant intentionally caused the death of the complainant and that appellant was the one who shot the complainant; (2) whether the trial court erred in refusing appellant’s request for a jury instruction on the lesser-included offense of aggravated robbery; and (3) whether the trial court erred in admitting hearsay statements made by the complainant to a witness during the commission of the offense. We affirm.
Facts
On June 12, 2005, Antonio Morales was a passenger in the car of his cousin,
the complainant, when they stopped at a red light at the intersection of Airline and Little York. Lakeisha Ball, appellant’s former girlfriend, approached the passenger side of the car and spoke to the complainant, who turned off the ignition and told Morales that they would leave in a minute. Appellant suddenly appeared, placed a gun to Morales’s head, and demanded the complainant’s keys. Ball and appellant then entered the back seat of the car, and appellant gave the keys back to the complainant and told him to drive. As they were driving, the complainant told Morales, who spoke no English, that appellant said for Morales to give appellant his money. Morales did so. Then Morales gave appellant his wallet when the complainant told Morales that appellant was demanding it, too. When they stopped at a light with a truck in front of them, the complainant told Morales that appellant said to put their hands down because of the people in front of them. When they stopped in a vacant lot, the complainant told Morales that appellant said for Morales to get out of the car and to kneel down. Morales did so, thinking that appellant was going to shoot him. However, when he heard the gun discharge, it was the complainant who had been shot. Morales lifted the complainant out of the car and sought help. The complainant died from a single gunshot to the back of the chest.
Shortly thereafter, Ball and appellant showed up at the apartment of an acquaintance of appellant’s, Constance Young. Young’s apartment was near the vacant lot where the complainant was shot.
Houston Police Officer William Booth conducted the follow-up investigation. He spoke with Morales, who provided valuable information, and then Booth received a tip that resulted in the development of a suspect in the case. Booth proceeded to the Baron Motel, in the same vicinity as the vacant lot where the crime occurred, with a photograph of appellant. Booth also showed a photographic spread to Morales, from which Morales picked appellant as the one with the gun who had robbed him and shot the complainant. Morales also identified a photograph of Ball as the female involved.
Sufficiency of the Evidence
In his first two points of error, appellant challenges the legal and factual sufficiency of the evidence to prove that it was appellant who fired the shot that killed the complainant and that appellant fired the shot intentionally. Appellant argues that because Morales had his head down, he did not see the shot fired, he did not see who fired the shot, and he could not rule out the possibility that the gun had accidentally discharged or malfunctioned.
A. Standards of Review
We apply the usual standards of review for legal-sufficiency and factual-sufficiency challenges. See Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979) (legal sufficiency); Drichas v. State, 175 S.W.3d 795, 798–800 (Tex. Crim. App. 2005) (legal and factual sufficiency); Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006) (factual sufficiency).
B. Legal Sufficiency
Although appellant raises other hypotheses as to how the complainant was shot, we conclude that a rational jury could have found beyond a reasonable doubt from the evidence that appellant intentionally shot the complainant during the course of a robbery.
Viewed in the light most favorable to the jury’s verdict, the evidence shows that appellant directed the entire offense and was the only person armed with a firearm throughout the incident. Morales testified that appellant “got mad at” the complainant during the ride, which he could tell because appellant “talked to [the complainant] loud.” In fact, Morales testified that the tone of appellant’s voice as the complainant drove into the vacant lot was “a little more, like more angry” and that appellant was addressing the complainant “strongly,” as he had been doing “during the whole time.” However, just before the single shot was fired, Morales thought that appellant was going to shoot Morales because appellant had the gun pointed at Morales.
Additional evidence demonstrated that the complainant was not shot by Ball, who was sitting directly behind him. The crime scene investigation showed that there were no bullet holes inside the car, including through the back seat, and the bullet recovered from the complainant’s body showed no signs that it had traveled through anything solid, like a car seat, or that it had ricocheted off anything. The bullet entered the right side of the complainant’s back, pierced both lobes of his right lung, and passed through the right atrium of his heart, lodging in his chest. The absence of gunshot residue and “stippling” (particles of unburned gunpowder), which normally appear when a gun is fired at close range, caused the assistant medical examiner to conclude that the complainant was shot from a distance of more than two feet. The assistant medical examiner also opined that the complainant could not have been sitting straight forward in his seat because “the back of the seat would be in the way. He would have to be turned somewhat, one direction or the other.” Additionally, the medical examiner opined that had the gun been placed directly between the driver’s seat and the complainant’s back, there would have been residue, which there was not. The evidence showed that appellant was standing half in and half out of the back passenger door, which would have placed him behind and to the right of the complainant.
Given this evidence, we hold that a rational jury could have concluded beyond a reasonable doubt that it was appellant who shot the complainant from the passenger side of the car and that appellant did so intentionally. Therefore, the evidence is legally sufficient.
We overrule appellant’s first point of error.
C. Factual Sufficiency
Appellant rested after the State and, thus, presented no alternative version of how the events transpired. Appellant argues on appeal that the complainant could not have been shot by appellant if the complainant had been in the position that Morales said that he was in just prior to the gunshot. This is a challenge that the evidence supporting the jury’s verdict is so weak as to render the verdict clearly wrong and manifestly unjust. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
Morales testified that appellant’s former girlfriend was seated behind the complainant and that appellant was seated behind Morales. Appellant held the gun to the back of Morales’s head throughout the offense, at least until Morales was ordered to get out and to kneel down on the passenger side. Even up to just before the shot was fired, appellant had continued to point the gun at Morales. The last position in which Morales saw the complainant was sitting in the driver’s seat, facing forward.
Given the positions of the parties, and because the bullet entered the back of the complainant’s chest, appellant argues that it was more likely that the complainant was shot from behind, where appellant’s girlfriend was sitting. In response, the State argues that the jury could have implicitly found that the complainant had turned to get out of the car just before appellant shot him, thereby reconciling the medical examiner’s testimony of the location of the entrance wound with the complainant’s and appellant’s respective positions.
Viewing all of the evidence in a neutral light, we hold that the evidence showing that appellant intentionally shot the complainant is not so weak as to render the verdict clearly wrong and manifestly unjust. See id.
We overrule appellant’s second point of error.
Lesser-Included-Offense Instruction
In his third point of error, appellant contends that the trial court erred when it refused appellant’s request for a jury charge on the lesser-included offense of aggravated robbery. Appellant argues that, because the evidence did not unequivocally establish that appellant intentionally caused the death of the complainant, the trial court should have submitted a jury instruction on the lesser-included offense of aggravated robbery.
A. Standard of Review
To determine whether a defendant was entitled to an instruction on a lesser-included offense, we employ a two-prong analysis, examining (1) whether the requested lesser offense is, in fact, a lesser-included offense and (2) whether there is some evidence that would permit a jury rationally to find that if the defendant was guilty, he was guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993).
B. Application
The parties agree that aggravated robbery meets the first prong of the Rousseau analysis; accordingly, we direct our analysis to whether there is some evidence that appellant was guilty only of aggravated robbery. In other words, is there any evidence that the complainant was not murdered by appellant during the robbery? Appellant relies upon the same alternative hypotheses as in his first two points of error as evidence that it was not appellant who shot the complainant and that appellant did not intentionally shoot the complainant.
At trial, appellant stated that his request for a lesser-included offense of aggravated robbery was based on the testimony of Morales and Dr. Wolfe, the assistant medical examiner, without specifying upon what testimony he relied. Nothing in Morales’ testimony established that it was not appellant who shot the complainant or that, if it was appellant, he shot the complainant recklessly or negligently. Indeed, as in his sufficiency arguments, appellant relies on the fact that Morales did not see the shooting to postulate that it might not have been appellant who shot the complainant or that appellant might not have shot intentionally. As for the assistant medical examiner, his testimony provided the evidence that ruled out appellant’s hypothesis that it was Ball who shot the complainant. Moreover, nothing in the doctor’s testimony showed that appellant fired the handgun recklessly or negligently. Again, these are mere theories of appellant, unsupported by any evidence. See In re M.R.R., 2 S.W.3d 319, 326 (Tex. App.—San Antonio 1999, no pet.) (upholding denial of instruction on lesser-included offense for lack of evidence supporting that appellant’s theory that unidentified third-party shooter fired fatal gunshots). We hold that the trial court did not err in denying appellant’s request for an instruction on the lesser-included offense of aggravated robbery.
Accordingly, we overrule appellant’s third point of error.
Admission of Hearsay
In his fourth point of error, appellant contends that the trial court erred by permitting Morales to testify about hearsay statements made by the complainant. The specific statements of which appellant complains were made immediately before and during the course of the offense: (1) “hold on a minute, we’ll leave in a moment”; (2) “The complainant told Morales to give appellant his money”; (3) “The complainant told Morales to put his hands down because there were people in front of them”; (4) “he’s telling you to get out of the car”; and (5) “My cousin told me to get out of the car and kneel down.” Although there was no objection to any of these statements before the jury, appellant had previously objected to Morales’s testifying to statements made to him by the complainant as being hearsay. The trial court had overruled the objection.
Appellant argues that the prosecutor’s stated bases offered at trial for admissibility—i.e., that these statements were not offered for their truth, were present sense impressions, showed the complainant’s existing mental condition, and were interpretations given to Morales, a Spanish speaker—are unavailing. On appeal, the State argues that the statements were not hearsay because they were statements of appellant that the complainant interpreted for Morales and, thus, were admissions of a party-opponent. See Tex. R. Evid. 801(e)(2)(C),(D) (providing that admission by party opponent is non-hearsay if it is “a statement by a person authorized by the party to make a statement concerning the subject” or “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship”).
This Court has previously adopted the “language conduit” rule, whereby a translated statement of a defendant is admissible on the theory that the interpreter serves as an agent of, or a language conduit for, the declarant-defendant, thus rendering the statement the defendant’s own admission under Texas Rule of Evidence 802(e)(2)(D). See Gomez v. State, 49 S.W.3d 456, 459–61 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); see also Cassidy v. State, 149 S.W.3d 712, 715–16 (Tex. App.—Austin 2004, pet. ref’d). The language conduit rule examines four factors to determine admissibility: (1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead or to distort; (3) the interpreter’s qualifications and language skill; and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated. Gomez, 49 S.W.3d at 459.
Here, it appears that the complainant volunteered to interpret as appellant was holding a gun to Morales’s head and demanding Morales’s money and wallet, instructing Morales to put his hands down, and ordering Morales to get out of the car. However, nothing shows that appellant objected to the complainant’s voluntary interpretation for Morales, thereby implicitly indicating appellant’s acquiescence in the arrangement. See Gomez, 49 S.W.3d at 460 (“In this case, neither party ‘supplied’ Andrade as an interpreter; rather, he was a bystander who took on that role. However, from the record it can be inferred that both [defendant] Andrade and Officer Peters acquiesced to Andrade acting as interpreter.”). The complainant was Morales’s cousin; it is thus a fair inference that he knew that Morales spoke no English and that he volunteered to translate in order to keep appellant from shooting Morales for not following appellant’s orders. The interpreter-complainant certainly had no motive to mislead or to distort because his cousin’s life appeared to depend on whether Morales followed appellant’s orders. The interpreter-complainant’s qualifications and language skill are unknown, but he was apparently able to translate accurately because Morales sufficiently satisfied appellant’s demands to avoid being shot. Indeed, the fact that Morales complied with demands for his money, his wallet, putting his hands down, and getting out of the car demonstrates the reliability of the complainant as a language conduit for appellant. Applying the Gomez factors, we conclude that the trial court did not err in overruling appellant’s hearsay objections to the four statements addressed above.
We note that one of the statements of which appellant complains was made before appellant entered the car and began giving demands. That statement—the complainant’s explaining to Morales that they were not going to proceed right away—contains absolutely nothing inculpatory or harmful to appellant. If there was any error in admitting it, we hold that it was harmless for not affecting appellant’s substantial rights (indeed, any error is harmless beyond any doubt). See Tex. R. App. P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”); West v. State, 124 S.W.3d 732, 734, 737 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that Texas Rule of Appellate Procedure 44.2(b) applies to error in admitting hearsay testimony because that error is non-constitutional). We hold that the remaining four statements were not hearsay under the language conduit rule. A trial court does not abuse its discretion in overruling a hearsay objection to evidence that is not hearsay.
Accordingly, we overrule appellant’s fourth point of error.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b)