Opinion by: Sarah B. Duncan, Justice
Sitting: Alma L. López, Justice
Sarah B. Duncan, Justice
Karen Angelini, Justice
Delivered and Filed: July 31, 2002
AFFIRMED
Lamar Burks was convicted of and sentenced for murder. We affirm.
Factual and Procedural BackgroundOn June 30, 1997 at approximately 2 a.m., Officer Mike Perales was patrolling the Fifth Ward in Houston when he noticed a crowd of people gathered in front of a restaurant. Suspecting a fight, Perales stopped his vehicle and approached the crowd but retreated when he heard gun shots. After the crowd dispersed, Perales found Earl Perry on the ground. Perry had suffered a fatal gun shot wound. An investigation ensued, and Burks was arrested for Perry's murder.
Burks' trial was originally set for May of 1998. However, because the State was unable to locate a key witness, Kevin Scales, the case was dismissed before it could be tried. Burks was eventually reindicted and tried for murdering Perry. A jury found Burks guilty and assessed punishment at seventy years imprisonment and a $10,000 fine. Burks appealed.
Admissibility of Witness TestimonyIn his first and third points of error, Burks argues the trial court erred in admitting certain testimony during the guilt/innocence phase of the trial.
Standard of Review
A trial court's ruling on the admissibility of evidence is subject to an abuse of discretion standard on appeal. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An abuse of discretion will be found "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993). We will uphold the trial court's ruling even if it is incorrect if we conclude "it is permissible under any theory applicable to the case." Draheim v. State, 916 S.W.2d 593, 599 (Tex. App.-San Antonio 1996, pet. ref'd).
Discussion
- Hearsay testimony
Burks first argues the trial court erred in admitting the following hearsay testimony by Sergeant Eric Mehl that identified Burks as the person who murdered Perry. We disagree.
Mehl testified regarding information he received from Kevin Scales. The complained-of testimony includes the following:
State: Was [Kevin Scales] able to identify anybody in the photograph?
Defense: I'd object to any hearsay.
Court: Overruled.
State: Was he able to identify anybody in the photospread that you had?
Mehl: Yes.
State: Was that a photograph of this defendant, Lamar Burks?
Mehl: Yes.
State: Do you see him in the courtroom today?
Mehl: Yes, I do.
State: Would you point to him and identify something that he's wearing?
Mehl: He's seated here wearing a green-colored sports coat and tie.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). The question Burks objected to, along with the question that followed, were not hearsay, because neither the questions nor Mehl's response related to the content of Scales' statement. See Head v. State, 4 S.W.3d 258, 262-63 (Tex. Crim. App. 1999). Whether the remainder of the State's questions and Mehl's responses amount to hearsay is questionable though. Id. However, since Burks failed to object to this testimony, we need not address the issue. See Tex. R. App. Proc. 33.1(a).
- Motion in limine
Burks next contends the trial court erred in overruling his objection to a line of questioning by the State and testimony by Mehl that, according to Burks, violated a motion in limine granted by the court, because it implied Kevin Scales was hiding out in fear of Burks. We disagree. "[V]iolation of a motion in limine, by itself, is not a basis for appellate complaint." Ludwig v. State, 969 S.W.2d 22, 28 (Tex. App.-Fort Worth 1998, pet. ref'd). To preserve error, a timely objection stating specific grounds must be made at trial. Tex. R. App. Proc. 33.1(a). We therefore conclude the error, if any, was waived.
- Extraneous offenses
In his third point of error, Burks argues the trial court erred in admitting evidence of an extraneous offense. We again disagree.
The testimony Burks maintains is inadmissible evidence of an extraneous offense or bad character is the same evidence he claims violated a motion in limine conditionally granted by the court - testimony by Sergeant Mehl regarding missing witness Kevin Scales. However, Burks did not object on this basis at trial when he argued Mehl's testimony was hearsay, speculative, and a comment on the weight of the evidence; consequently, the error, if any, was waived. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Moreover, even if Burks had objected on this basis, the evidence does not show an offense actually occurred, i.e., that Burks threatened a witness or was involved in Scales' disappearance. See Harris v. State, 738 S.W.2d 207, 224 (Tex. Crim. App. 1986), cert. denied, 484 U.S. 872 (1987). We therefore conclude the trial court did not abuse its discretion in admitting the evidence.
- Objection outside jury's presence
Burks complains the trial court erred in allowing investigator Wade Woodruff to testify about the material witness bond issued for Kevin Scales and his unsuccessful attempts to locate Scales, because Woodruff's inability to find Scales implied (1) Scales was a material witness; and (2) a material witness was hiding out of fear of Burks or that Burks was responsible for Scales' failure to testify. We disagree.
At trial, before Woodruff was called to testify, Burks requested a hearing outside the presence of the jury during which the court initially determined it would permit the State to ask Woodruff whether a "material witness bond" had been issued for Kevin Scales. Burks objected, arguing that "any inference [by Woodruff] to this jury that the testimony of Kevin Scales is material" would be an impermissible comment on the weight of the evidence. Without expressly ruling on the objection, the court stated it disagreed with Burks' objection but nevertheless proposed a compromise - that the State "avoid the word material." Burks objected to this as well on the same basis. Again without expressly ruling on the objection, the court asked Burks, "[h]ow is it a comment on the weight of the evidence?" After some discussion, the court proposed a third alternative - that the State ask Woodruff, "did you because of an order from this Court have the authority to arrest Mr. Scales for the purpose of bringing him to court if you see ... or something like that." To this, Burks did not object but instead asked: "[w]e're not going to get into ... no material witness bond?" The court responded "[n]o." Then, after the jury was brought back into the courtroom, the State asked Woodruff: "did you receive the authority from Judge Collins to seize the body of one Kevin Scales, pick him up and transport him immediately to this court if he was seen by yourself or any other law enforcement officer?" Woodruff responded, "[y]es, I did." Burks did not object.
"When the court, out of the jury's presence, hears and overrules objections to evidence, those objections need not again be made before the jury when the evidence actually is presented to the jury." Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Here, out of the jury's presence, Burks initially objected to any reference by the State to "material witness bond" and the court's instruction that the State avoid using the word "material." However, when the court instructed the State a third and final time on how it should proceed in questioning Woodruff to limit any reference to "material witness bond," Burks failed to renew his objection and obtain an adverse ruling. See Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.) ("to preserve error, the objecting party must continue to object each time the objectionable evidence is offered"), cert. denied, 528 U.S. 1026 (1999). His failure to object during the conference and again when Woodruff testified waived any complaint to the trial court's ruling and Woodruff's testimony about his inability to locate Scales. Burks' first and third points of error are overruled.
Failure to Instruct on Accomplice as a Matter of Law
In his second point of error, Burks argues the trial court committed reversible error when it failed to instruct the jury that Derevin Whitaker was an accomplice as a matter of law.
Applicable Law
When an accomplice witness is called by the State, the accomplice witness rule requires the State to corroborate accomplice testimony relied on to connect the defendant with the offense. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). An accomplice is someone who "could be prosecuted for the same offense as the defendant, or a lesser included offense," i.e., "if there is sufficient evidence connecting them to the criminal offense as a blameworthy participant." Id. at 454-555. "'[T]he test is whether or not there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice." Id. (quoting Morgan v. State, 171 Tex. Crim. 187, 346 S.W.2d 116, 118 (1961)). If "there exists no doubt or the evidence clearly shows that a witness is an accomplice witness," then the witness is an accomplice witness as a matter of law and "the court is under a duty to so instruct the jury." DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259 (1991). If, however, the evidence is conflicting, "an accomplice as a matter of fact" instruction should be given and the determination of whether the witness is an accomplice left to the jury to decide. Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987).
Discussion
At the guilt/innocence stage of the trial, the State called Whitaker as a witness. During the charge conference, Burks requested an "accomplice as a matter of law" instruction, because Whitaker had been indicted for the same offense. The court refused Burks' request to submit an instruction that Whitaker was an "accomplice as a matter of law" and submitted an "accomplice as a matter of fact" instruction to the jury. On appeal, Burks contends Whitaker was an accomplice as a matter of law even though the indictment against him had been dismissed prior to trial, because it was "only dismissed after he agreed to testify on the morning of his testimony." He therefore argues that the court rather than the jury should have made this determination and instructed the jury accordingly. We disagree.
"A State's witness who has been indicted for the same offense as the defendant is considered to be an 'accomplice as a matter of law.'" DeBlanc, 799 S.W.2d at 708. However, a person is not necessarily an accomplice as a matter of law if the indictment is dismissed. Otto v. State, 117 Tex. Crim. 257, 36 S.W.2d 177, 178 (1931) (court indicated in dictum that the dismissal of an indictment against a witness removed his accomplice as a matter of law status); Hilton v. State, 975 S.W.2d 788, 792 (Tex. App.-Texarkana 1998, pet. ref'd). If the indictment is not dismissed in exchange for testimony against the accused, the witness is not an accomplice as a matter of law. See Barrara v. State, 42 Tex. 260 (1875) (co-indictee was an accomplice as a matter of law because he agreed to testify only on condition that the charges against him be dismissed).
Here, the indictment against Whitaker was dismissed before Burks' trial so that he was no longer a co-indictee. That the indictment against Whitaker was only dismissed the morning of Burks' trial has no bearing on Whitaker's accomplice status. See Garza v. State, 164 Tex. Crim. 9, 296 S.W.2d 267, 269 (1956) (court held witness whose indictment was dismissed the morning of the defendant's trial was not an accomplice as a matter of law). And, contrary to Burks' assertion, there is no evidence Whitaker agreed to testify against Burks only if the indictment against him was dismissed. Thus, the trial court was correct in refusing to instruct the jury to find Whitaker to be an accomplice as a matter of law unless there was other evidence in the record that clearly showed Whitaker was an accomplice. Blake, 971 S.W.2d at 454-55.
For other evidence Whitaker was an accomplice, Burks relies on the grand jury testimony of Randy Lewis, a witness unavailable at the time of trial. However, this testimony was not admitted into evidence so we cannot consider it. Id. at 455. Additionally, Burks relies on the testimony of Sergeant Mehl, arguing "it is clear from Sgt. Mehl's testimony before the jury that there was an additional witness who had evidence implicating Whitaker in the murder." We again disagree. A review of the record shows Mehl testified as follows:
State: Let's back up to 1999 when you're starting the investigation again. You received information from somebody or from some source, right?
Mehl: Yes.
State: Based on that information did you come to me?
Mehl: Yes.
State: And did you present information to a Grand Jury?
Mehl: We did.
State: Who was indicted at that time?
Mehl: Lamar Burks and Derevin Whitaker.
...
State: Did you make a trip to see Derevin Whitaker?
Mehl: I did.
...
State: What did he tell you?
Mehl: Whitaker told me that he and Lamar Burks had been at A's Restaurant across the street, and later that night they had worked the door at J's Sportsman's Lounge. Whitaker told me that business at the lounge was slow so he went home from there. That was essentially his whole knowledge of what happened that night that Earl Perry was killed.
State: He didn't have any involvement of any kind?
Mehl: Correct.
...
State: Did you interview him again?
Mehl: Yes.
...
State: Did he acknowledge that he had knowledge of what occurred that night but that he was not involved in the case itself?
Mehl: Yes, he did.
State: The statement that he gave to you and that I was present for, did he prove that he was innocent of the offense?
Mehl: The statement in and of itself did not.
Upon questioning Mehl further about the information he had received from Whitaker, Mehl concluded he believed Whitaker was telling the truth when Whitaker told him he witnessed but had not actively participated in the shooting and murder of Earl Perry.
We agree that it can be inferred from this testimony that Mehl had talked with another witness, who provided evidence that implicated Whitaker in Perry's murder and led to his indictment. However, there is nothing in the record that shows what specific evidence lead to Whitaker's indictment. As stated previously, evidence that Whitaker was indicted for the murder - without more - is insufficient because the indictment was dismissed. See id at 455. Moreover, Mehl's testimony supports a finding to the contrary - that Whitaker was not an accomplice. Id. at 454. ("A person who is merely present at the scene of the offense is not an accomplice; an affirmative act or omission is required. ... [O]ne is not an accomplice for knowing about a crime and failing to disclose it, or even concealing it."). Having found no clear evidence in the record that Whitaker was an accomplice in the murder of Earl Perry, we conclude that, at most, Burks was entitled only to the accomplice as a matter of fact instruction that was given to the jury. We therefore overrule Burks' second point of error.
Evidence of Extraneous Offense During the Punishment Phase
In his fourth point of error, Burks argues the trial court erred in allowing the State to introduce evidence Burks was arrested several times for drug possession and for hitting a police officer, because none of these arrests resulted in a conviction. We disagree. "At punishment, the state is entitled to admit evidence of unadjudicated extraneous offenses regardless of whether the defendant was charged or finally convicted of the offenses." Romero v. State, 34 S.W.3d 323, 326 (Tex. App.-San Antonio 2000, pet. ref'd).
Burks also contends the trial court should not have allowed Special Agent Jack Schumacher to testify about Burks' membership in the Hardy Street Boys, a gang well known for its drug related activities, because Schumacher's testimony was based on inadmissible hearsay. We disagree.
"[T]he facts or data forming the basis of the expert's opinion 'need not be admissible in evidence'; thus, an expert's opinion could be predicated solely on inadmissible hearsay if of a type reasonably relied upon by experts in that field of expertise." Ramirez v. State, 815 S.W.2d 636, 651 (Tex. Crim. App. 1991). "This rule recognizes that experts [may] ... form their opinions and draw inferences ... [based] on their experience and training." Id.
Schumacher, an agent with the Drug Enforcement Agency, testified he had received information from a number of sources, including an informant, some prison inmates, and other police officers that Burks was involved in drug related activities and affiliated with the Hardy Street Boys gang. Schumacher also had personal knowledge of Burks' drug related activities and gang affiliation from an investigation he had conducted since 1999. When Schumacher testified, Burks stipulated that Schumacher was an expert in narcotics investigation. As such, Schumacher was not required to have personal knowledge Burks was affiliated with a drug trafficking gang; he could rely on hearsay as the basis of his expert opinion. Id. at 650-51. Nevertheless, Schumacher did have personal knowledge of Burks' illegal drug and gang activities, and the State established Schumacher's testimony and opinion regarding Burks' criminal activity were based on his numerous years of training and experience in conducting similar investigations. Thus, the trial court did not err in admitting his testimony. We therefore overrule Burks' final point of error and affirm the trial court's judgment.
Sarah B. Duncan, Justice
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