Opinion issued February 5, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00386-CR
JARRETT DELAINE DRIVER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1048084
MEMORANDUM OPINION
A jury convicted appellant Jarrett Delaine Driver, of capital murder. (1) The jury also assessed punishment at life imprisonment, the only punishment allowed because appellant was a juvenile certified to be tried as an adult. (2) In three points of error, appellant argues that the trial court erred (1) in denying appellant's Batson challenge for excluding two African-American venire members; (2) in admitting hearsay evidence in violation of the Sixth Amendment and Rule 802 of the Texas Rules of Evidence and (3) in admitting prejudicial photographic evidence in violation of Rule 403 of the Texas Rules of Evidence.
We affirm.Background
Appellant, Jarrett Delaine Driver, entered Dina's Donuts, the business of the complainant Bunrith In, on August 13, 2005 at approximately 4:30 a.m. Appellant, a frequent customer of Dina's Donuts, ordered five breakfast tacos from the complainant's wife, Mon Meach. Meach asked appellant if he would like to have his tacos heated. After appellant agreed to have the tacos heated, he pointed a gun to Meach's forehead, cocked the gun, and attempted to fire the gun at Meach. The complainant moved from another work area in the shop and went to the register area where appellant was threatening Meach. The complainant pulled Meach away and asked appellant what he wanted. Appellant demanded money, and the complainant opened the cash register and gave appellant twenty dollars. After appellant confirmed that twenty dollars was the extent of the complainant's holdings, appellant demanded the tacos. After the complainant handed appellant the tacos, appellant slapped the tacos from the complainant's hands, brandished a knife, and chased the complainant and Meach around the store. The complainant then confronted appellant and they began to fight. The complainant fell to the ground, and appellant ran out of the shop. Meach locked the door and called 911, but the complainant died at the scene.
Baytown Police Detective Charles Widner, Jr. interviewed Meach on three separate occasions prior to trial. Meach, a person of Cambodian descent with limited English proficiency, required an interpreter for each interview. Meach's relatives translated for Meach in the first interview with Widner; a Cambodian interpreter employed by the Houston Police Department translated in the second interview, and Nimol In, the daughter of the complainant and Meach, translated for Meach in the third interview. Widner brought a photo array that included appellant's photo to the third interview, which was held in Meach's home on August 17, 2005. Meach, with Nimol In serving as translator, identified appellant as the complainant's assailant at that interview. When Meach identified appellant, she tapped the photo, and Widner then circled it. Police arrested appellant at his residence on August 17, 2005, at approximately 8:40 p.m.
Meach testified at appellant's trial, where she was subject to cross-examination. She again identified appellant as the assailant, this time in response to questions translated by an interpreter supplied by the trial court.
Batson Challenge
In his first point of error, appellant argues that the trial court erred in denying appellant's Batson challenge to the State's use of peremptory strikes against venire members Winfield and Ellis. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986).
Standard of Review
We review the trial court's decision in response to a Batson challenge with great deference and will not overturn the trial court's ruling unless the decision is clearly erroneous. Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002) (citing Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999)). We review the decision under a highly deferential standard because the trial court is in the best position to determine whether the State's facially race-neutral explanation for a peremptory strike is genuinely race-neutral. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004) (citing Jasper v. State, 61 S.W.3d 413, 421-22 (Tex. Crim. App. 2001)).
Analysis
The Equal Protection Clause of the Fourteenth Amendment prohibits the State from using peremptory strikes for the purpose of excluding venire members on the basis of race. U.S. Const. amend. XIV; Batson, 476 U.S. at 89, 106 S. Ct. at 1719. The defendant bears the burden to make a prima facie showing that the State used its peremptory strikes to exclude venire members on the basis of race. Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002). After the defendant makes the requisite prima facie showing, the State has the burden to produce a race-neutral explanation for its use of peremptory strikes. Id. After the State produces a race-neutral explanation, the defendant may rebut the explanation as mere pretext. Id. The trial court must then decide whether the defendant has proved purposeful discrimination.
Here, appellant argues that the State struck venire member Winfield because he is African-American. The State argues that it struck Winfield because of his answers to questions regarding whether the education level of a witness would affect his evaluation of the witness's credibility.
During the voir dire examination, the following exchange took place between the State and venire member Winfield:
[State]: Mr. Winfield, let me come back to you as Juror No. 1. Do you think perhaps a person's education level might affect their ability to understand questions, for instance? You think that's something that [sic] might or might not make a difference?
[Winfield]: It could.
[State]: Could? Okay.
[Winfield]: Depends on how you phrase it to them.
[State]: Exactly. Sometimes when I'm in trial and I get really tired, questions make a lot of sense up here. But when they come out of my mouth, they don't make much sense. Or maybe I learned a new word from my 14-year old last night and I used that word and it's a word just out of the blue. What [sic] you look at those kinds of questions as far as analyzing a person's credibility about their [sic] ability to understand the questions? Is that something you would take into account?
[Winfield]: No.
After the voir dire examination was completed, appellant made his Batson challenge to the State's decision to strike Winfield. The State gave the following explanation for its decision to strike Winfield before the trial court:
[The State]: The victim's wife in this case, the victim, grew up in Cambodia. She has very little education. And I'm concerned about Mr. Winfield's answers relative to the education level being something that he wouldn't be concerned with as far as judging a person's credibility. I've had problems with their understanding stuff even through a translator. That's why Mr. Winfield was struck. There was somebody else that didn't have those kinds of problems and I didn't strike that individual.
The trial court accepted the State's race-neutral explanation and denied appellant's Batson challenge. Here, the State merely recited the particular circumstances and limitations regarding the complainant's wife. The trial court may have reasonably accepted the State's expressed concern about venire member Winfield's potential bias against an indispensable witness for the State. We conclude that the trial court's decision to deny appellant's Batson challenge was not clearly erroneous.
Appellant also made a Batson challenge to the State's decision to strike venire member Ellis, arguing that she was struck because she is African-American. The State argues that it struck Ellis because she is a Children's Protective Services ("CPS") worker and expressed the view that rehabilitation is more important than punishment when fashioning a response to perpetrators of violent crime.
During the voir dire examination, the following exchange took place between the State and venire member Ellis:
[State]: As far as punishment, we're back in your kingdom. You're the one that is making the law. And the question for you, in a violent crime, a capital murder kind of crime, you're the one making the law and you get to tell a jury, well, in my kingdom, the crime of capital murder, punishment is more important or rehabilitation is more important. So, you're going to decide in a violent crime like capital murder, murder, aggravated robbery, something like that, punishment is more important or rehabilitation is more important. Okay. So that question to you is going to be punishment or rehabilitation. I'm going to ask everybody. Okay.
[Ellis]: Rehab.
After the voir dire examination was completed, appellant made his Batson challenge to the State's decision to strike Ellis. The State gave the following explanation for its decision to strike Ellis before the trial court:
[ State]: She's a CPS person. So, that's why she was struck. Also she is a rehabilitation person and I only--that was rehabilitation--that was struck by the State. There are a couple, four or five, that are kind of wavering about your instructions. If I could correct the record, Juror No. 33 appeared to be a black female. I did not strike her.
. . . .
[Appellant] I'm having a hard time accepting that the State is not going to put people on the jury because they work for Child Protective Services.
[State]: I've got protective--they are wonderful but they are soft on people that are on trial for crimes. I've just dealt with too many of them. Same with juvenile probation officers. I think they're great on their job, but I wouldn't want them on a jury.
. . . .
The trial court accepted the State's race-neutral explanation and denied appellant's Batson challenge. Here, the trial court may have reasonably accepted the State's expressed concern that, because appellant was a juvenile at the time of the offense, venire member Ellis might have shown a predisposition against convicting appellant due to her occupation and her stated views. Therefore, we conclude that the trial court's decision to deny appellant's Batson challenge was not clearly erroneous.
We overrule appellant's first point of error.Hearsay and the Confrontation Clause
In his second point of error, appellant argues that the trial court erred in allowing the jury to consider inadmissible hearsay testimony from Detective Widner in violation of appellant's Sixth Amendment confrontation rights.
Standard of Review
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)). This Court will not reverse the trial court's ruling unless that ruling falls outside the "zone of reasonable disagreement." Id. We do not conduct a de novo review of the trial's court decision. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). Our role is confined to merely determining whether the record supports the trial court's ruling. Id.
Analysis
The Sixth Amendment guarantees a criminal defendant the right to confront "the witnesses against him." U.S. Const. amend. VI. The Sixth Amendment protection extends to out-of-court statements used as evidence against the accused. Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364 (2004). Out-of-court statements deemed as "testimonial" in effect and nature are impermissible as evidence against the accused. (3) Id. Out-of-court statements taken by police officers in the course of interrogations are generally deemed "testimonial" under Sixth Amendment Confrontation Clause standards. (4) Id.; see also Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74 (2006) (defining statements as testimonial when "the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions").
Here, appellant argues that Detective Widner's testimony during both the pretrial identification hearing and the subsequent trial on the merits was based on suspect out-of-court Cambodian language interpretation performed by the complainant's daughter and was therefore inadmissible hearsay.
Hearsay
Detective Widner interviewed Meach on three occasions to get an identification of the complainant's assailant. He interviewed her at the crime scene on August 13, 2005, at the Houston Police Department on August 16, 2005, and at Meach's home on August 17, 2005. At each interview, Widner showed Meach photo arrays of potential suspects. At each interview, Meach required a translator acquainted with the Cambodian language. Meach's relatives translated at the first interview and a Cambodian translator employed by the Houston Police Department translated at the second interview.
Prior to the third interview, on August 17, 2005, Widner called Meach's residence to confirm the meeting with the complainant and Nimol In. Nimol In acted as interpreter for Meach during the interview, which was held in Meach's residence. Widner testified that, during the interview, he asked Nimol In the questions in English. Nimol In then translated the questions into Cambodian. Meach responded in Cambodian, and Nimol In translated the responses into English. Widner admitted that he did not speak Cambodian and did not know whether Nimol In translated the questions to Meach in the manner Widner asked them. During this interview, Widner showed Meach and Nimol In a photo array of six potential suspects and Nimol In told Widner that Meach had identified appellant as the assailant. Based on Nimol In's translation of Meach's responses and Meach's tapping appellant's photo, Widner circled the photo of appellant. Meach then initialed appellant's photo to certify the identification. Appellant argues that Meach's out-of-court identification of appellant was hearsay. The Texas Rules of Evidence generally prohibit out-of-court statements offered to prove the truth of the matter asserted, or "hearsay." See Tex. R. Evid. 801, 802. However, a statement is not deemed hearsay if the statement involves identification of a person perceived by the declarant and the declarant later testifies at a trial or hearing and becomes available for cross-examination concerning the statement. See Tex. R. Evid. 801(e)(1)(C). Here, Meach testified at trial. Thus, Meach's out-of-court identification of appellant was not hearsay in itself. See Tex. R. Evid. 801(e)(1)(C) (deeming out-of-court identification of person perceived by declarant who later testifies at trial not to be hearsay).
Translated Statements
Appellant contends, however, that because of Widner's uncertainty regarding Nimol In's translations and Nimol In's filial proximity to the complainant, Widner's testimony was based on Nimol In's statements regarding the identification, rather than Meach's, and Widner's testimony is, for that reason, hearsay. Translated statements are admissible as long as the statements qualify under a hearsay rule exception and the interpreter has no motive to mislead, distort, or make an inaccurate translation. Cassidy v. State, 149 S.W.3d 712, 715 (Tex. Crim. App. 2004).
This Court has outlined a four-factor test to determine whether an interpreter for a party associated with litigation or prosecution is either a mere "language conduit" for the party or, as appellant alleges, a declarant of an out-of-court statement within the meaning of the hearsay rule in the Texas Rules of Evidence. Gomez v. State, 49 S.W.3d 456, 459 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd) (citing United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991)). First, we determine which party supplied the interpreter. Id. Second, we determine whether the interpreter had any motive to mislead or distort. Id. Third, we assess the interpreter's qualifications and language skills. Id. Finally, we determine whether actions taken subsequent to the conversation were consistent with the statements as translated. Id.
First, the interpreter, Nimol In, was not supplied by any party. Rather she was available to translate because she was at Meach's residence at the time of the third interview, just as Meach's relatives had translated at the crime scene. Although, the second interview on August 16, 2005 was taken at the Houston Police Department with a Cambodian translator employed by the Houston Police Department. The police thus had access to competent Cambodian translators who could serve a "language conduit" function. However, no evidence in the record suggests that the police believed a police department translator was necessary for an interview at Meach's residence.
Second, we have not found any record evidence to show that Nimol In had a motive to mislead or distort either Widner's questions or her mother's replies in the third police interview. Rather, Widner's circling appellant's photograph and Meach's tapping on the photograph and initialing of the photograph in response to the translated questions are evidence that Nimol In accurately translated Widner's questions to her mother asking her whether she could identify the person who stabbed the complainant at the donut shop.
Third, there is no evidence that Nimol In's qualifications and language skills in communicating in both English and Cambodian were insufficient for her to translate accurately for Meach. Nimol In grew up in this country and presumably fluent in both English and the Cambodian dialect she learned from Meach herself. She demonstrated her language abilities during the first interview between Meach and Widner on August 13, 2005, as well as in the third interview.
Fourth, in response to the statements translated by Nimol In,, Meach identified appellant by tapping his photo in the array Widner had brought to the third interview, indicating that she understood Widner's identification request. Appellant was later detained and tried. Meach testified at the trial, where she was subject to cross-examination. She repeated her identification of appellant, again through an interpreter.
Balancing all the Gomez factors, we hold that Nimol In served as a mere language conduit for Meach. We hold that the trial court did not abuse its discretion when it admitted Widner's testimony for use at the pretrial identification hearing and at the trial on the merits. (5)
Harmless Error
Even if the trial court had erred in admitting Widner's testimony, however, the error
would have been harmless. See Tex. R. App. P. 44.2(a). (6)
When a witness's ability to make an in-court identification has an origin independent of an alleged improper pre-trial identification procedure, such testimony is admissible at trial. Waller v. State, 648 S.W.2d 308, 312 (Tex. Crim. App. 1983).
Here, the State produced significant identification evidence independent of Widner's testimony. The complainant's wife, Meach, identified appellant at the pretrial identification hearing and at the trial on the merits through a court-appointed interpreter. The State presented Darrell Wiltz who testified that he saw appellant coming through a hole in a fence adjacent to the crime scene on the night the complainant was killed. Appellant was panting and sweating heavily when Wiltz walked toward appellant to talk with him. Appellant told Wiltz that appellant needed to discard the blue shirt that he was wearing. Wiltz testified that when he asked appellant why he needed to discard the shirt, appellant responded by asking Wiltz if he "knew the donut man," an apparent reference to the complainant. When Wiltz told appellant that he did know the "donut man," appellant told Wiltz that appellant had "done him in." The State also produced Jeffrey Lyons, a classmate of appellant's at Channelview High School in Channelview, Texas. Lyons testified that he asked appellant about the stabbing at the complainant's donut shop and that appellant told Lyons he had stabbed complainant sixteen times.
Given the volume of identification evidence with origins independent from the pre-trial identification procedure, Widner's testimony regarding Meach's out-of-court identification of appellant from the photo array was merely cumulative and had no substantial effect on the identification of appellant as the complainant's assailant. Waller, 648 S.W.2d at312. It was not harmful error. See Tex. R. App. P. 44.2(a).
We overrule appellant's second point of error.
Texas Evidence Rule 403
In his third point of error, appellant argues that the trial court erred in admitting prejudicial photographic evidence in violation of Rule 403 of the Texas Rules of Evidence.
Standard of Review
We review a trial court's decision to admit evidence under Rule 403 under a clear abuse of discretion standard. Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App. 1996) (citing Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990)). A trial judge has broad discretion in admitting or excluding evidence. Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). Under Rule 403, trial courts should favor admission in close cases. Montgomery, 810 S.W.2d at 389.
Analysis
Texas Evidence Rule 403 allows a trial court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." See Tex. R. Evid. 403. In determining whether the danger of unfair prejudice substantially outweighs the probative value of photographs, several factors may be considered, such as the number of photographs, the detail and size of the photographs, whether the photographs are in black and white or in color, whether the photographs are close-ups, the availability of other means of proof, and the unique circumstances of each case. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). A presumption that the evidence has probative value affects the balancing analysis. Goldberg v. State, 95 S.W.3d 345, 366 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd). Any decision regarding the admissibility of photographs is made within the sound discretion of the trial judge. Sonnier, 913 S.W.2d at 518 (citing Jones v. State, 843 S.W.2d 487, 500 (Tex. Crim. App. 1992)); Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997.
The trial court may admit photographs that depict what was included in the testimony of various witnesses as long as the photographs have not been manipulated and are not used to inflame or mislead the jury. See Sonnier, 913 S.W.2d at 519 (holding that four photographs showing victims' bodies lying in bloodied water were included in witnesses' testimonial depictions and, therefore, could be admitted). Crime scene photographs are just as relevant as verbal testimony by aiding the jury in determining the manner and means of the death of the victim, the force used, the length of time the victim had been dead, and sometimes even the identity of the perpetrator. Williams, 958 S.W.2d at 195. Crime scene photos are helpful to the jury by providing a visual context for witnesses' testimony in describing the crime scene and may be admitted. See Frank v. State, 183 S.W.3d 63, 78 (Tex. App.--Fort Worth 2005, pet. ref'd). When photographs depict nothing more than the reality of the crime the defendant has committed, the reality of the offense serves as "powerful" visual evidence which is more probative than prejudicial. Chamberlain, 998 S.W.2d 230, 236-37 (holding that closeup of victim's face with exposed brain matter was more probative than prejudicial). A trial court does not abuse its discretion merely because it admits into evidence photographs that are gruesome. See Sonnier, 913 S.W.2d at 519.
Appellant argues that the trial court erred in admitting nine photographs that are merely cumulative and gratuitous images of gore that are substantially more prejudicial than probative. Each photo admitted by the trial court depicts the wounds inflicted on the complainant's body alongside forensic equipment used to measure and locate those wounds. The photos show various body parts of the complainant's body, each part highlighted to show the depth and length of the particular wound. The photos are graphic, intense and fully depict the gravity of the offense suffered by the complainant. But, the photos are clinical rather than gratuitous. Because each photo measures a different body part, there is no cumulative effect when viewing the photos as a complete series. The photos merely depict the result of appellant's actions. We conclude that the trial court's decision to admit these photos was within its sound discretion.
We overrule appellant's third point of error.
Conclusion
We affirm the trial court's judgment.
Evelyn V. Keyes
Justice
Panel consists of Justices Taft, Keyes, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).
1. 2. See id. § 12.31(a) 3. 4. 5. 6.