Melvin Goodspeed v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-01-00227-CR

______________________________

MELVIN GOODSPEED, Appellant

THE STATE OF TEXAS, Appellee

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 00-F-0659-202

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

Â Â Â Â Â Â Â Â Â Â Â Â A jury convicted Melvin Goodspeed for aggravated sexual assault and sentenced him to ninety-nine years' imprisonment. See Tex. Pen. Code Ann. Â§ 22.021(a)(1)(B)(i) (Vernon Supp. 2004â2005) (child victim). On appeal to this Court, we originally sustained Goodspeed's sole point of error, held he received ineffective assistance of counsel during voir dire, and concluded counsel's deficient performance during this critical phase of the trial sufficiently undermined confidence in the trial court's judgment. Goodspeed v. State, 120 S.W.3d 408 (Tex. App.âTexarkana 2004), rev'd, No. PD-1882-03, 2005 Tex. Crim. App. LEXIS 520 (Tex. Crim. App. Apr. 6, 2005). On discretionary review, the Texas Court of Criminal Appeals, with three justices dissenting, reversed because Goodspeed's counsel had not been "afforded an opportunity to explain his actions before being denounced as ineffective" and because some hypothetical trial strategy might arguably support counsel's conduct. Goodspeed, 2005 Tex. Crim. App. LEXIS 520, at *5. That court then remanded this case for further proceedings. We now affirm the trial court's judgment.

I. Issues Presented

Â Â Â Â Â Â Â Â Â Â Â Â Goodspeed contends he received ineffective assistance of counsel from his trial attorney, because the attorney (A) filed "nonsensical pretrial pleadings," (B)Â "conducted no meaningful voir dire examination" and exercised peremptory strikes on two previously excused panel members, (C)Â "failed to subpoena the child's Mother until the morning of trial" and did not understand why the child complainant's competency was an issue, (D) failed to make an adequate opening statement, (E)Â cross-examined witnesses in such a way as to insinuate Goodspeed's guilt and solicited or allowed testimony that bolstered the credibility of other witnesses; (F) failed to question the complainant about playing sexual games with her cousin, and (G) failed to object to an improper jury argument by the prosecutor.

II. Standard of Review

Â Â Â Â Â Â Â Â Â Â Â Â We review claims of ineffective assistance of counsel using the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56â57 (Tex. Crim. App. 1986). We also note that the Texas Court of Criminal Appeals has, for the most part, relegated claims of ineffective assistance to the "the highly problematic and uncertain world of habeas corpus" review. See Goodspeed, 2005 Tex. Crim. App. LEXIS 520, at *21 (Holcomb, J., dissenting). We now turn to each of Goodspeed's complained-of areas of error.

III. Analysis

A. Pretrial Pleadings

Â Â Â Â Â Â Â Â Â Â Â Â Goodspeed first alleges he received ineffective assistance because his trial counsel filed "nonsensical pretrial pleadings." The complained-of filings include a motion to inspect medical records and witness reports, a request for specific witnesses (to be summoned to give testimony at a pretrial hearing), two motions to quash the indictment, and an objection to the State's notice of an outcry witness.

Â Â Â Â Â Â Â Â Â Â Â Â The motion to inspect medical records and witness reports was directly relevant to the case. Counsel asked for pictures taken by Cecilia Cole, the nurse who examined the victim, at the North East Texas Child Advocacy Center. Cole would eventually testify at trial about these pictures and her role as the sexual assault nurse examiner. The photographs were also admitted into evidence at trial. Thus, the evidence sought through counsel's pretrial motion was directly relevant to counsel's preparation for trial.

Â Â Â Â Â Â Â Â Â Â Â Â The second itemâthe request that specific witnesses be summoned for a pretrial hearingâwas relevant to Goodspeed's being able to present witness testimony. No ineffective assistance of counsel has been shown.

Â Â Â Â Â Â Â Â Â Â Â Â Similarly, counsel's motions to quash do not support Goodspeed's claim of ineffective assistance. The motions to quash the indictment highlight that the original indictment was possibly defective in two respects: the indictment arguably did not show the offense occurred within Bowie County, and the indictment did not give the specific date of the offense alleged. If the trial court had quashed the indictment based on either of trial counsel's motions, Goodspeed, who was incarcerated at the time of filing, would have been freed from jail until the State could secure a new indictment. See, e.g., Rodriguez v. State, 42 S.W.3d 181, 185â86 (Tex. App.âCorpus Christi 2001, no pet.) (granting of motion to quash generally results in dismissal of prosecution). And while an indictment need not allege the exact date on which an offense occurred, see Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989), it would not be unsound trial strategy to narrow the State's needed proof to a single offense date. Accordingly, we conclude there is at least a possible strategic reason supporting counsel's decision to file the motions to quash.

Â Â Â Â Â Â Â Â Â Â Â Â Counsel's final complained-of filingâa handwritten objection to the State's notice of outcry witnessâdoes seem to fall short of attacking the propriety of admitting testimony from an outcry witness. Instead, the objection reads more like a pretrial motion for acquittal. But Goodspeed has not demonstrated that filing this second motion to quash had any impact on the outcome of his trial. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Nor does the record before us provide any insight into counsel's reasoning for filing this particular motion. Thus, we cannot conclude counsel's pretrial motions support Goodspeed's claim of ineffective assistance of counsel.

B. Voir Dire and the Exercise of Peremptory Strikes on Previously Excused Members of Venire

Â Â Â Â Â Â Â Â Â Â Â Â Goodspeed next complains that trial counsel's voir dire was ineffective because it resulted in no challenges for cause to venire members Pettyjohn, Bradford, Overmeyer, Sims, Conkleton, Burks, Elliot, or George. He also asserts that trial counsel was ineffective for using two of Goodspeed's peremptory challenges on two members of the venire panel who had already been excused for cause by the trial court. The Texas Court of Criminal Appeals has already ruled against Goodspeed on this aspect of his claim. See Goodspeed, 2005 Tex. Crim. App. LEXIS 520, at *2â5.

C. Subpoenaing the Victim's Mother & Understanding Why Competency Was at Issue

Â Â Â Â Â Â Â Â Â Â Â Â Goodspeed next contends his trial counsel provided ineffective assistance because counsel did not subpoena the victim's mother until the morning of trial and because counsel "had no idea of why the child's competency to testify as a witness was in issue . . . ." Goodspeed has not shown, however, that such alleged misconduct was not the product of a reasoned trial strategy or that, but for such conduct, Goodspeed would not have been convicted or would have otherwise received a lesser punishment. Moreover, Goodspeed's trial counsel did test the victim's ability to distinguish the truth, and counsel tested the victim about the circumstances surrounding her outcry in an obvious attempt to cast doubt on the veracity of her claimâwhich does, at least, seem to discredit Goodspeed's claim that counsel did understand why the complainant's competency was at issue. As such, the record before us does not support Goodspeed's claim.

D. Short Opening Statement

Â Â Â Â Â Â Â Â Â Â Â Â Goodspeed next contends his trial counsel provided ineffective assistance by failing to make a longer opening statement. Counsel's opening statement was, in fact, succinct:

Your Honor, as my client has steadfastly maintained his innocence from the date that he was arrested -- August 11th of 2000 till the present time, he has denied that he assaulted this child, and we will have some proof on that. Thank you.

Neither the choice of language nor the brevity of the statement suggests error in counsel's opening statement. Counsel concisely articulated Goodspeed's defense strategy as one based on innocence, a theme that would reappear during counsel's cross-examination of the State's witnesses, in Goodspeed's own testimony, and as part of counsel's closing statement. In his brief to this Court, Goodspeed has made no attempt to show that a longer opening statement would have resulted in an acquittal or a shorter sentence. Accordingly, Goodspeed has not satisfied his burden of proof on appeal.

E. Cross-Examination of the State's Witnesses and Solicitation of Bolstering Testimony

Â Â Â Â Â Â Â Â Â Â Â Â Goodspeed next contends trial counsel improperly phrased cross-examination questions in such a way that counsel's questioning served (1) to impliedly admit Goodspeed's guilt, (2) only to support the State's case for conviction, and (3) to improperly bolster the testimony of the State's evidence. Goodspeed further complains that counsel erred by asking a witness on cross-examination whether she believed the complainant's outcry and by allowing the State to improperly bolster its witnesses by questioning those testifying about the veracity of the State's other witnesses. Assuming, without deciding, that Goodspeed's characterization of counsel's cross-examination is correct, Goodspeed has made no showing that, absent such alleged errors, he would not have been convicted or would have received a lesser sentence. Nor has trial counsel been afforded an opportunity to explain his strategic reasons for asking these questions. Accordingly, we cannot sustain Goodspeed's claim based on the record and briefing currently before this Court.

F. Failure To Fully Question the Complainant About Her "Play" with Kevin

Â Â Â Â Â Â Â Â Â Â Â Â Goodspeed also argues, "Even though [the complainant's] account of the sexual game the child had been playing with her cousin Kevin was the only other explanation for her injuries, [counsel] failed to fully explore this possibility through her testimony." Goodspeed has neither made an attempt to show or suggest the substance of this missing testimony, nor made an attempt to show that such evidence would have necessarily resulted in an acquittal or a lesser sentence. Nor has trial counsel had the opportunity to respond to these allegations, as required by the Texas Court of Criminal Appeals. We, therefore, cannot say the record supports Goodspeed's claim.

G. Prosecutor's Closing Argument

Â Â Â Â Â Â Â Â Â Â Â Â Finally, Goodspeed contends trial counsel's performance was deficient because counsel failed to object to an allegedly improper jury argument by the State. Goodspeed's trial took place one week after the terrorist attacks of September 11, 2001, in New York City, Pennsylvania, and Washington,Â D.C. In closing argument, the prosecutor stated, without objection,

Â Â Â Â Â Â Â Â Â Â Â Â You know, this last week has been a pretty amazing week for our country, and it has been a time where people have united and come together to stand against those who would perpetrate acts of terrorism against our country. And I'm standing here before you in a little part of the country, and I'm asking the twelve of you to come together and stand united against acts of terror, the act of terror that that man perpetrated against one of our children. I'm asking you to do that and I'm asking you to stop this girl's suffering. She has endured enough and it's time you all ended that suffering, and the only way you can do that is to return a verdict of guilty. Thank you.

Â Â Â Â Â Â Â Â Â Â Â Â "Permissible areas of closing argument are: (1) summation of evidence presented at trial; (2)Â reasonable deductions drawn from said evidence; (3) answers to opposing counsel's argument; and (4) plea for law enforcement." Flowers v. State, 133 S.W.3d 853, 858 (Tex. App.âTexarkana 2004, no pet.). In this case, the prosecutor's argument arguably constituted a plea for law enforcement. We cannot say counsel rendered ineffective assistance by failing to object to an arguably permissible summation by the prosecutor.

IV. Conclusion

Â Â Â Â Â Â Â Â Â Â Â Â For the reasons stated, we overrule Goodspeed's point of error and affirm the trial court's judgment.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Jack Carter

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Date Submitted:Â Â Â Â Â Â Â Â Â Â May 26, 2005

Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â June 21, 2005

Publish

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In The

Court of Appeals

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Sixth Appellate District of Texas at Texarkana

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â No. 06-09-00094-CR

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â LATOYA SMITH, Appellant

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â V.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â THE STATE OF TEXAS, Appellee

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â On Appeal from the 202nd Judicial District Court

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Bowie County, Texas

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Trial Court No. 07F0378-202

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Before Morriss, C.J., Carter and Moseley, JJ.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Opinion by Chief Justice Morriss

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â O P I N I O N

Â Â Â Â Â Â Â Â Â Â Â The physical abuse suffered by the victim in this case over a period of days was reminiscent of torture reportedly used by rogue captors to break military prisoners.Â Two attackers repeatedly assaulted the much smaller and weaker victim, sometimes kicking her, sometimes slamming her into the wall, sometimes striking her with belts.Â They made her stand barefooted and motionless for hours at a time, sometimes atop an overturned plastic milk crate cast using a large open grid pattern, which caused her additional pain.Â When she faltered, she was further assaulted.Â As if the victim had not suffered enough, on the final day of the attacks, her female attacker repeatedly pushed the exhausted victim backward onto the floor.Â Each fall caused the victimÂs head to hit the floor; the last time hard enough so a witness heard the victimÂs Âbrain crack.ÂÂ The victim, River Phoenix Williams, died from her injuries.

Â Â Â Â Â Â Â Â Â Â Â River Phoenix was two years old.Â The attackers were her father and the fatherÂs live-in girlfriend.

Â Â Â Â Â Â Â Â Â Â Â Just as River Phoenix had been entitled to the protections of the law, her attackers, too, are entitled to all applicable protective provisions of the law.

Â Â Â Â Â Â Â Â Â Â Â Latoya Smith, the live-in girlfriend, was convicted in River PhoenixÂs death, after River PhoenixÂs father, Neil Patrick Dewitt, had pled guilty to the same crime.

Â Â Â Â Â Â Â Â Â Â Â Sentenced to life imprisonment without parole, Smith appeals, urging a number of arguments but making no challenge to the sufficiency of the evidence to prove the offense of capital murder.Â We affirm the trial courtÂs judgment because (1) the StateÂs nondisclosure of certain evidence did not require an in camera inspection of the StateÂs file or a mistrial, (2) no Confrontation Clause violation arose from the trial courtÂs rulings regarding the testimony of Wade and Roberson, (3) admitting River PhoenixÂs autopsy report did not violate the Confrontation Clause, (4) excluding evidence of SmithÂs mental health history during the guilt/innocence phase was not error, and (5) admitting evidence of SmithÂs prior behavior and attitude toward River Phoenix was not error.Â We address the arguments in that order, after recounting the facts in greater detail.

Â Â Â Â Â Â Â Â Â Â Â Before her death, River Phoenix lived with Dewitt, Smith, and River PhoenixÂs minor sister, K.T.Â Dewitt admitted that he was party to the abuse that caused his childÂs death, pled guilty to capital murder, and also received a sentence of life imprisonment without parole.Â He testified against Smith during her trial, consistently said that the two of them killed River Phoenix, and enlightened the jury on the origins of SmithÂs jealousy, dislike, and abuse of River Phoenix, who was DewittÂs daughter by another woman.Â Dewitt stated, ÂWhen I found out that [River Phoenix] was my child, [Smith] had said, well, thereÂs your child you couldÂve had with me.ÂÂ Dewitt also testified that Smith would never accept River Phoenix, and felt that Dewitt Âcheated on her because [River Phoenix] came in after we were together.ÂÂ SmithÂs journal complained that Dewitt told River Phoenix that Smith was picking on her.

So now whenever I come in the room when sheÂs eating she stops eating and watches me like IÂm the TV . . ., so now I donÂt go into any room that sheÂs in and I donÂt say anything to her and I leave her and [Dewitt] alone and they seem to do just fine without me around.Â Good news, she goes home [to her mother] on the first of the month.Â The bad news is today is only the 27th of the month.Â I have never disliked a child so much in my life.Â I wish she didnÂt exist.

For this reason, both Dewitt and K.T. testified, Smith had a ÂbadÂ relationship with River Phoenix resulting in child abuse.

Â Â Â Â Â Â Â Â Â Â Â Some of SmithÂs treatment of River Phoenix was described by Kiara Kashawn Wade and her mother, Evelyn Roberson.Â Smith, a stay-at-home hair stylist, booked an appointment with Wade for hair braiding.Â When Wade and Roberson arrived, they noticed that River Phoenix was left in the back yard alone.Â Wade testified:

When [Smith] started to braid my hair, [River Phoenix] was standing next to us, and [Smith] didnÂt like that.Â She said, go play with the toys or go play with the dog.Â And [River Phoenix] didnÂt move, she just stood there.Â And thatÂs when [Smith] went on saying, we bought her all these toys and she donÂt play with them, and she ended up siccing the dog on the baby, making the baby cry . . . . [Smith] was just putting the dog on the baby.

Wade asked Smith to stop, to which Smith replied, Â[I]f you donÂt like it, then you can take her home with you.ÂÂ Smith then forced River Phoenix to stand in a corner for seven hours.Â ÂAfter she put her in a corner, [River Phoenix] kept crying . . . . Â But as [Smith] was talking to me . . . . she was talking about [River PhoenixÂs] mother, she was throwing stuff at the baby; hairbrushes, she threw some grease at her, and she threw a shoe at her.ÂÂ Smith reportedly told Wade that she hoped Dewitt Âdid get custody of the baby, that way she could do what she wanted to with [River Phoenix].ÂÂ Wade said, Â[Y]ou could tell [River Phoenix] wanted to sit down.Â You know, a babyÂs legs . . . she was shaking . . . . Â She had been standing for almost six hours now.ÂÂ At one point, Smith checked River PhoenixÂs diaper, found it dirty, told her she stank, ÂsmashedÂ the diaper against her, and Âmade her sit in it.ÂÂ Smith refused WadeÂs offer of help to change the diaper.Â When Wade offered River Phoenix food, Smith Âknocked it out of [her] handÂ and offered River Phoenix the food herself.Â When River Phoenix backed away, Smith said that she had Âa nasty attitude towards the people that take care of her, but with everybody else that she donÂt know sheÂs very friendly.ÂÂ Toward the end of the evening, Dewitt arrived and was instructed not to feed River Phoenix Âanything because all the food in the house belonged to [Smith].ÂÂ The couple joked and Âsaid they treat the dog better than they treat [River Phoenix] because her attitude is so messed up.ÂÂ A distraught Wade returned to RobersonÂs house and reported the dayÂs events.Â Roberson attempted an intervention with Dewitt and Smith, which resulted in Smith cursing the child and blaming her for her stubbornness.Â The couple told Roberson that River Phoenix Âwas the problem.ÂÂ

Â Â Â Â Â Â Â Â Â Â Â The problems continued.Â The day before River PhoenixÂs death, she Âwas in her chair and didnÂt want to eat.ÂÂ Smith became upset, yelled at the child, took her from the dinner table, and gave her a bath instead.Â Then, River Phoenix was instructed to dress herself.Â When the two-year-old was unsuccessful at this task, Smith spanked the child with a red leather belt that had a brass buckle, a weapon used regularly by Smith to beat the child.Â Smith Âhad beat her for a while, and then she got increasingly frustrated and passed her toÂ Dewitt, who beat her with a black leather belt.Â At one point, Dewitt Âhit her once over the top of the head with the belt.ÂÂ Dewitt justified his actions by claiming to be supportive of SmithÂs theory that River Phoenix was coddled.Â

Â Â Â Â Â Â Â Â Â Â Â The couple passed the baby back and forth between themselves for continued beatings over the course of several hours.Â The whippings ended after Smith grabbed the child by her arms, Ârammed her into the wall,Â Âdropped kicked her out of the way,Â and walked away from her.Â As if the child had not suffered enough, she was later made to stand, without shoes, on a plastic crate cast with a large grid pattern in its plastic body.Â After Dewitt nudged her with his foot, River Phoenix fell from the crate, hit her head on a nearby nightstand, climbed back up, and continued to stand throughout the night.

Â Â Â Â Â Â Â Â Â Â Â The next morning, Dewitt left for work, and K.T. boarded her school bus.Â Dewitt had been Âcheating onÂ Smith with another woman whom he met on the Yahoo Singles dating website.Â Smith discovered the website and called Dewitt at work to inquire about the other woman.Â He received angry telephone calls all day culminating in threats against River PhoenixÂs life, including one instructing Dewitt Âto be careful when I pulled into the garage because [River Phoenix] would be lying there dead.ÂÂ Dewitt did not rush home.

Â Â Â Â Â Â Â Â Â Â Â Around 1:00 p.m., Karrie Sue McNeil arrived to clean the apartment next door.Â She noticed the unmistakable sound, coming from the Dewitt-Smith residence, of a baby crying and screaming in pain.Â The child continued to cry and scream for the entire hour and a half it took McNeil to finish her job.Â While she contemplated reporting her suspicions, McNeil did not act on that idea.Â

Â Â Â Â Â Â Â Â Â Â Â K.T. testified that she returned from school that day to find River Phoenix Âstanding in the corner hunched over, and her kneesÂher legs were swelled up and she had bags under her eyes.ÂÂ Smith sat on the couch and would hit River Phoenix Âwith the belt on her legsÂ when the baby would fall down from standing.Â K.T. was forbidden to intervene.Â When Smith had her fill of this torture, K.T. was allowed to bathe River Phoenix.Â K.T. observed Â[s]he had whip marks on her legs and on her backÂ and Ânail marks on the back of her ear[s].Â Â After the bath, K.T. took her baby sister to the living room where Smith was watching television.Â Smith Âkneeled down in front ofÂ the baby, and Âpushed her down.ÂÂ River Phoenix fell backward, hit her head on the floor, and began to cry.Â When she stumbled up to a standing position, Smith twice repeated this action.Â As a result of the third push to the ground, K.T. heard River PhoenixÂs Âbrain crack.ÂÂ River Phoenix Âlaid there looking at the ceiling,Â and Âwas wobblingÂ after she managed to stand up again.Â K.T. could tell her sister was badly injured.Â She next witnessed Smith call Dewitt and tell him Â[s]he was going to hang [River Phoenix] with her red belt.ÂÂ At 9:00 p.m., K.T. was sent to bed.

Â Â Â Â Â Â Â Â Â Â Â Dewitt finally arrived around 9:30 p.m. to find River Phoenix Âin a full-blown seizureÂ while Smith sat apathetically on the couch watching television.Â Dewitt made the decision not to seek emergency medical care after observing the extensive bruising on River PhoenixÂs body.Â He testified Smith sat on the couch Âand kept rocking backing [sic] and forth, and she was like, IÂm going to jail, IÂm going to jail, IÂm going to jail.ÂÂ River Phoenix suffered a second seizure.Â After putting River Phoenix in K.T.Âs bedroom, Dewitt ate dinner and went to bed, while Smith stayed awake pacing the hall.Â

Â Â Â Â Â Â Â Â Â Â Â K.T. checked on her sister the next morning.Â ÂHer breathing was slowing down and her heart was slowing down.ÂÂ She informed her father, but went to school after his assurance that River Phoenix would be fine.Â

Â Â Â Â Â Â Â Â Â Â Â Shortly thereafter, River Phoenix died.

Â Â Â Â Â Â Â Â Â Â Â The couple Âtalked about blaming it on [K.T.] and saying that [K.T.] had kept hitting her, and that [Dewitt] would drive and dispose of the belts.ÂÂ While Dewitt was disposing of evidence, Smith called the police.

Â Â Â Â Â Â Â Â Â Â Â Officer Latriesha Grandy spoke with Smith, who ÂdidnÂt show any concern for River Phoenix or her well-being or the kind of shape she was in.Â It seems that her goal was to make sure sheÂ blamed K.T. for River PhoenixÂs injuries. Â After speaking with Detective Gisela Altamirano, however, Smith began to blame Dewitt, and then the family dog, for River PhoenixÂs condition.Â Grandy found River Phoenix nonresponsive with Âbruises all over her bodyÂ consistent with physical abuse to her forehead, abdomen, arms, legs, and ears. Â LifeNet responder James Pappas testified Â[t]here were various bruises of different sizes, shapes, locations, everywhere.Â The best way to describe it you couldnÂt take your hand and place it anywhere on that child that your hand would not touch a bruise or more than one bruise.Â

Â Â Â Â Â Â Â Â Â Â Â Dewitt and Smith followed River Phoenix to the hospital.Â Doctors informed Altamirano they believed the child had undergone severe physical abuse.Â The couple was arrested, and Smith gave inconsistent recorded statements to police about the causes of River PhoenixÂs bruising and her death.Â River PhoenixÂs autopsy report confirmed Âextensive blunt force trauma, abrasions, lacerations, and contusions over much of the body surface, including the head, the trunk, and all four extremities, widely scattered throughout the body,Â with the cause of death being blunt head trauma.

(1)Â Â Â Â Â Â Â The StateÂs Nondisclosure of Certain Evidence Did Not Require an in Camera Inspection of the StateÂs File or a Mistrial

Â Â Â Â Â Â Â Â Â Â Â Smith contends that she made a plausible showing entitling her to an in camera inspection of the StateÂs files by arguing the State violated the Brady^{^[1]} rule in failing to disclose DewittÂs statements made to Justice of the Peace Nancy Talley, his handwritten notes, and a DNA test result. Â In the same point of error,^{^[2]} she also maintains that she was entitled to a mistrial because of this nondisclosure.

Â Â Â Â Â Â Â Â Â Â Â We overrule these assertions by Smith because (A) Smith discovered TalleyÂs statements in time to effectively handle them at trial, (B) the trial court never ruled on whether the StateÂs failure to timely disclose DewittÂs handwritten notes violated Brady, (C) no ruling was requested regarding the negative DNA test results, and (D) mistrial was not required in any case.

Â Â Â Â Â Â Â Â Â Â Â We first address the first three subpoints, all seeking to trigger an in camera inspection of the StateÂs file.

Â Â Â Â Â Â Â Â Â Â Â The United States Supreme Court case of Brady established that nondisclosure of evidence violates due process rights of an accused where it is: Â (1) suppressed by the State after request for the evidence is made by the defense; (2) favorable to the defense; and (3)Â material to the outcome of the case.Â 373 U.S. at 87; Thomas v. State, 841 S.W.2d 399, 402Â03 (Tex. Crim. App. 1992) (en banc) (citing Moree v. Illinois, 408 U.S. 786 (1972)).Â

Â Â Â Â Â Â Â Â Â Â Â ÂThere is no general constitutional right to discovery in a criminal case, and Brady did not create one.ÂÂ Weatherford v. Bursey, 429 U.S. 545, 559 (1976); Menefee v. State, 211 S.W.3d 893, 902 (Tex. App.ÂTexarkana 2006, pet. refÂd).Â ÂThus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.ÂÂ United States v. Bagley, 473 U.S. 667, 675 (1985).Â ÂIn some situations where a defendant has failed to receive anything less than full disclosure under the Brady rule, he has a due process right to have the trial court examine the requested evidence in camera and then order disclosure of any appropriate information.ÂÂ Michaelwicz v. State, 186 S.W.3d 601, 614 (Tex. App.ÂAustin 2006, pet. refÂd).

Â Â Â Â Â Â Â Â Â Â Â To be entitled to have the trial court review the StateÂs file, however, Smith was required to Âestablish a basis for [her] claim that it contain[ed] material evidence.ÂÂ Pennsylvania v. Ritchie, 480 U.S. 39, 58, n.15 (1987) (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (A defendant Âmust at least make some plausible showing of how their testimony would have been both material and favorable to [the] defense.Â)); see Ransonette v. State, 550 S.W.2d 36, 40 (Tex. Crim. App. 1976) (Âwe know of no constitutional obligation of the trial court to peruse the prosecutorÂs file for exculpatory evidence in the absence of a specific request supported by some showing that such evidence existsÂ).

Â Â Â Â Â Â Â Â Â Â Â We review for abuse of discretion the issue of whether Smith made a sufficient showing to require an in camera inspection, while keeping in mind that the trial court is the sole judge of the credibility of the witnesses.Â See Page v. State, 7 S.W.3d 202, 207Â08 (Tex. App.ÂFort Worth 1999, pet. refÂd).

Â Â Â Â Â Â Â Â Â Â Â (A)Â Â Â Â Â Â Smith Discovered TalleyÂs Statements in Time to Effectively Handle Them at Trial

Â Â Â Â Â Â Â Â Â Â Â Talley testified Dewitt told her Âthat his girlfriend went to correct her and the little girl either clawed at her hand or bit at her hand or something to that effect, and she became upset.Â And when she became upset, he didnÂt like his girlfriend being upset and he totally lost it.ÂÂ ÂHe also told me that he picked her up, and at some point when he let go of her, sheÂsomething about a coffee table.ÂÂ

Â Â Â Â Â Â Â Â Â Â Â After Talley was cross-examined, she was excused without objection.Â Immediately after Talley was excused, Smith raised the issue of a Brady violation and argued TalleyÂs testimony was exculpatory because Dewitt never indicated to Talley that Smith had any responsibility for River PhoenixÂs death.Â The State responded that there were no written documents supporting TalleyÂs testimony and alleged that Smith was in the room while Dewitt made the statements.Â

Â Â Â Â Â Â Â Â Â Â Â In ruling that failing to disclose TalleyÂs testimony did not violate Brady, the trial court found SmithÂs counsel had discovered the substance of her testimony in sufficient time to prepare for trial.Â This was demonstrated by the subpoena, directing Talley to appear and testify, issued at SmithÂs request made seven days before trial.Â The trial court also found that TalleyÂs testimony was not material.Â

Â Â Â Â Â Â Â Â Â Â Â It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.Â Ritchie, 480 U.S. at 57 (citing Brady, 373 U.S. at 87).Â Evidence Âis material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.ÂÂ Id.; Thomas, 841 S.W.2d at 404.Â Because Âthe materiality issue turns on whether the defendant was prejudiced by delayed disclosure,ÂÂ Âif the defendant actually knows the facts which are withheld, he is not entitled to relief based upon the StateÂs failure to disclose the same facts.ÂÂ Williams v. State, 995 S.W.2d 754, 761 (Tex. App.ÂSan Antonio 1999, no pet.); State v. DeLeon, 971 S.W.2d 701, 706 (Tex. App.ÂAmarillo 1998, pet. refÂd).^{^[3]}

Â Â Â Â Â Â Â Â Â Â Â As trier of fact, the trial court was free to believe TalleyÂs testimony that Smith was present during DewittÂs statements and that counsel was aware of the substance of her testimony.Â It apparently so believed, since it ruled that there was no Brady violation with regard to TalleyÂs testimony.

Â Â Â Â Â Â Â Â Â Â Â (B)Â Â Â Â Â Â The Trial Court Never Ruled on Whether the StateÂs Failure to Timely Disclose

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â DewittÂs Handwritten Notes Violated Brady

Â Â Â Â Â Â Â Â Â Â Â During DewittÂs testimony at trial, SmithÂs attorney noticed Dewitt was holding handwritten notes, which reportedly were DewittÂs personal notes made shortly before trial.Â The State claimed it had received a copy of the notes the week before trial.Â The notes were made by Dewitt, contained a time line of events, the majority of the substance of DewittÂs testimony, and the following statements, among others, which could be viewed as exculpatory or impeachment evidence:^{^[4]}

I had punched her and she fell on the floor backwards . . . . I had hit her over the head-strap Â part Â of Â my Â belt.Â Â Latoya Â said Â she Â was Â bleeding Â after Â that on the scalp . . . . I then put her on [the] crate by the nightstand. Â She was at the edge.Â I then took my foot while lying down and nudged her to the middle where she fell and hit her head on the nightstand . . . . I got home at 9:26 p.m. to find River Phoenix in a full seizure at that time . . . . Â [Latoya] asked do you want to take her to the hospital . . . I saw the bruise on her mid section and said ÂF*** No.ÂÂ She had another real quick seizure and it stopped.Â She had opened her eyes and then she closed them and I thought she was asleep . . . I was assured by Latoya that she didnÂt hit her head . . . I had repeatedly pushed River Phoenix down and she would fall backwards and land on the purple rug and then made to get back up . . . I told Latoya I [threw] the belts out . . . I was going to get rid of the belts.

Â Â Â Â Â Â Â Â Â Â Â SmithÂs counsel moved for mistrial and argued that the StateÂs failure to disclose this time line violated Brady.Â He also argued that failure to disclose the notes should be considered in determining whether the court should grant the in camera inspection.Â The State responded that, although the time line was received by the prosecutorÂs office, they were Ânever part of the file.ÂÂ Noting that it had previously ordered the State to disclose such information, the trial court arranged to have copies of the notes made, allowed the State to conclude its direct examination, and declared an overnight recess to give SmithÂs attorney Âan opportunity to use it to prepare cross-examination of Mr. Dewitt.ÂÂ The motion for mistrial was denied.Â

Â Â Â Â Â Â Â Â Â Â Â The following morning, SmithÂs counsel moved for a seven-day continuance and complained that the notes Âcompletely eviscerated my defense.ÂÂ Although the trial court decided the State suppressed favorable evidence in spite of a proper request by the defense, it found that the materiality of the notes had not yet been established and indicated it would carry the objection until the end of cross-examination.

Â Â Â Â Â Â Â Â Â Â Â For a complaint for appellate review to be preserved, the trial court must have Âruled on the request, objection, or motion, either expressly or implicitly,Â or must have Ârefused to rule on the requestÂ despite objection to the refusal to rule.Â Tex. R. App. P. 33.1.Â Here, the record reveals that the trial court never ruled on the issue of whether the handwritten notes violated Brady.Â This was acknowledged by Smith in her brief.Â

Â Â Â Â Â Â Â Â Â Â Â (C)Â Â Â Â Â Â No Ruling Was Requested Regarding the Negative DNA Test Results

Â Â Â Â Â Â Â Â Â Â Â During a search of SmithÂs residence, officers located a broken broom.Â A test indicated there was blood on the broom, but a subsequent DNA test excluded River Phoenix as the source of the blood.Â Smith was provided a copy of the DNA results, and she introduced a copy of those results at trial. Â While complaining of untimely disclosure of the DNA results, Smith does not raise the issue of whether a Brady violation occurred with respect to the DNA test results. Â Since the State did disclose the test results, and no objection to the results was made, the trial court was free to determine that SmithÂs argument, raised during her motion for in camera inspection after introduction of the DNA test results, provided no plausible basis that the StateÂs files would contain further undisclosed, material evidence.

Â Â Â Â Â Â Â Â Â Â Â In sum, the trial court concluded that it Âhas no duty to do an in camera investigation,Â because no Brady violation occurred.Â Without a plausible showing that the StateÂs file contained undisclosed material evidence, we conclude that the trial court did not abuse its discretion in failing to grant SmithÂs motion for an in camera inspection.

Â Â Â Â Â Â Â Â Â Â Â (D)Â Â Â Â Â Â Mistrial Was Not Required in any Case

Â Â Â Â Â Â Â Â Â Â Â ÂOnly in extreme circumstances, where the prejudice is incurable, will a mistrial be required.Â Â Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). Â We review a trial courtÂs ruling on a motion for mistrial for an abuse of discretion. Â Towery v. State, 262 S.W.3d 586, 598 (Tex. App.ÂTexarkana 2008, pet. refÂd) (citing Archie, 221 S.W.3d at 699). Â We will uphold the trial courtÂs ruling if it was within the zone of reasonable disagreement. Â Archie, 221 S.W.3d at 699 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).

Â Â Â Â Â Â Â Â Â Â Â Because the trial court could find the lack of incurable prejudice to Smith resulting from any of the above, we conclude it did not abuse its discretion in overruling SmithÂs motion for mistrial.

(2)Â Â Â Â Â Â Â No Confrontation Violation Arose from the Trial CourtÂs Rulings Regarding the Testimony of Wade and Roberson

Â Â Â Â Â Â Â Â Â Â Â Smith argues that the trial court violated the Confrontation Clause by limiting her cross- examination on the subject of WadeÂs and RobersonÂs participation in the HellÂs Lovers biker group.Â We disagree.

Â Â Â Â Â Â Â Â Â Â Â (A)Â Â Â Â Â Â WadeÂs Testimony Was Not Limited by the Trial Court

Â Â Â Â Â Â Â Â Â Â Â During WadeÂs cross-examination, the following exchange occurred:

Â Â Â Â Â Â Â Â Â Â Â Q.Â Â Â Â Â Â Â Now, your mother is Evelyn Roberson?

Â Â Â Â Â Â Â Â Â Â Â A.Â Â Â Â Â Â Â Yes . . . .

Â Â Â Â Â Â Â Â Â Â Â Q.Â Â Â Â Â Â Â And her husband is Nathaniel Roberson?

Â Â Â Â Â Â Â Â Â Â Â A.Â Â Â Â Â Â Â Yes.

Â Â Â Â Â Â Â Â Â Â Â Q.Â Â Â Â Â Â Â And heÂs a member of HellÂs Lovers?

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mr. Shepherd: Your Honor, the State is going to object once again to the relevance of that.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â THE COURT: Well, IÂll allow that question.

Â Â Â Â Â Â Â Â Â Â Â Q. Â Â Â Â Â Â [Mr. Henry] HeÂs a member of the HellÂs Lovers?

Â Â Â Â Â Â Â Â Â Â Â A.Â Â Â Â Â Â Â Yes, sir.

Â Â Â Â Â Â Â Â Â Â Â Q.Â Â Â Â Â Â Â And your mother, is she property of the HellÂs Lovers?

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mr. Shepherd:Â Once again, Judge, this is not relevant to the issue before this jury.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â THE COURT:Â Well, the Court will sustain that, also the characterization.

Â Â Â Â Â Â Â Â Â Â Â A.Â Â Â Â Â Â Â At the time she was, yes.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mr. Shepherd:Â You donÂt have to answer that.

Â Â Â Â Â Â Â Â Â Â Â A.Â Â Â Â Â Â Â Oh, okay.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â [Defense Counsel]:Â Pass the witness, Your Honor.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mr. Shepherd: Nothing further.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â THE COURT:Â All right, you can step down.

In her brief, Smith complains that the trial court did not allow her to establish that WadeÂs mother was ÂpropertyÂ of the HellÂs Lovers biker gang.Â Review of the record demonstrates that Wade provided the answer counsel sought, the answer was not struck, SmithÂs counsel passed the witness, and Smith did not attempt (and, thus, the trial court did not limit) further cross-examination.^{^[5]}

Â Â Â Â Â Â Â Â Â Â Â (B)Â Â Â Â Â Â Limiting RobersonÂs Testimony Was Within the Trial CourtÂs Discretion, Based onÂ Â Â Â Â Â Â Â Its Lack of Relevance and the Failure to Show RobersonÂs Bias Against Smith

Â Â Â Â Â Â Â Â Â Â Â The right to cross-examination extends to any matter that could reflect on the witnessÂ credibility.Â Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1987).Â The right of an accused to cross-examine a testifying StateÂs witness includes the right to impeach the witness with relevant evidence that might reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting the witnessÂ credibility. Â Id. at 29; Alexander v. State, 949 S.W.2d 772, 774 (Tex. App.ÂDallas 1997, pet. refÂd).Â Thus, the scope of cross-examination should extend to all facts and circumstances that, when tested by human experience, tend to show that a witness may shade his or her testimony for the purpose of helping to establish only one side of the cause.Â Carroll v. State, 916 S.W.2d 494, 497Â98 (Tex. Crim. App. 1996); Alexander, 949 S.W.2d at 774Â75.

Â Â Â Â Â Â Â Â Â Â Â Although a defendantÂs right to confrontation and cross-examination is constitutionally safeguarded, the right is not absolute.Â Chambers v. Mississippi, 410 U.S. 284, 295 (1973); Huff v. State, 897 S.W.2d 829, 839 (Tex. App.ÂDallas 1995, pet. refÂd).Â The trial court retains great latitude in imposing reasonable limitations on cross-examination.Â Virts, 739 S.W.2d at 28.Â The court may properly limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation.Â Carroll, 916 S.W.2d at 497.Â When considering whether a trial courtÂs decision to exclude testimony is error, we must determine whether the trial court abused its discretion.Â Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993).Â This inquiry depends on the facts of each case. Â Id. at 904.

Â Â Â Â Â Â Â Â Â Â Â During RobersonÂs cross-examination, Smith requested the trial courtÂs permission to inquire about her participation in HellÂs Lovers.Â Smith argued the evidence was relevant for the purpose of demonstrating bias toward Dewitt.Â Â[T]he right to cross-examination includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable.ÂÂ Ritchie, 480 U.S. at 51Â52.Â However, the court reminded counsel that Roberson testified against both Dewitt and Smith.Â It stated, ÂWell, I think that you can go into the fact that her husband andÂ Dewitt are friends.Â I think that you can go into the factÂyou can ask whether or not due to that friendship would she have a tendency to testify as toÂbased on that relationship.Â

Â Â Â Â Â Â Â Â Â Â Â A proffer outside the juryÂs presence produced the following testimony:

Â Â Â Â Â Â Â Â Â Â Â Q.Â Â Â Â Â Â Â And Mr. Nathaniel Roberson is a member of the HellÂs Lovers motorcycle gang?

Â Â Â Â Â Â Â Â Â Â Â A.Â Â Â Â Â Â Â That is not correct.Â HeÂs a member of the HellÂs Lovers motorcycle club.Â It is not a gang.

Â Â Â Â Â Â Â Â Â Â Â Q.Â Â Â Â Â Â Â Okay. And the HellÂs Lovers motorcycle club, what exactly is that?

Â Â Â Â Â Â Â Â Â Â Â A.Â Â Â Â Â Â Â ItÂs an organization.Â They ride motorcycles, and theyÂre located in a lot of different states . . . .

Â Â Â Â Â Â Â Â Â Â Â Q.Â Â Â Â Â Â Â . . . were you property of the HellÂs Lovers motorcycle organization?

Â Â Â Â Â Â Â Â Â Â Â A.Â Â Â Â Â Â Â Sir, I am not a member of the HellÂs Lovers organization.

Counsel did not question Roberson on the subject of bias.Â Here, the trial court concluded that testimony regarding participation in HellÂs Lovers, absent evidence of bias, was irrelevant to the issue of whether Smith intentionally or knowingly caused River PhoenixÂs death.Â Because there was no error in that finding, there was no violation of the Confrontation Clause.

(3)Â Â Â Â Â Â Â Admitting River PhoenixÂs Autopsy Report Did Not Violate the Confrontation Clause

Â Â Â Â Â Â Â Â Â Â Â Smith contends that the autopsy report constituted testimonial hearsay and that its admission violated her Sixth Amendment right to confront witnesses against her.Â We disagree.

Â Â Â Â Â Â Â Â Â Â Â We review a trial courtÂs decision to admit evidence under an abuse of discretion standard. Â McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).Â ÂAlthough we defer to a trial courtÂs determination of historical facts and credibility, we review a constitutional legal ruling . . . de novo.Â Â Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).Â A trial courtÂs ruling to admit evidence will not be reversed as long as it falls within the zone of reasonable disagreement. Â See Montgomery v. State, 810 S.W.2d 372, 391 (Tex . Crim. App. 1990) (op. on rehÂg).

Â Â Â Â Â Â Â Â Â Â Â Â[I]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him.ÂÂ U.S. Const. amend. VI.Â The admission of a testimonial, out-of-court statement from a declarant who does not appear at trial violates the Confrontation Clause unless the declarant was unavailable to testify at trial and the defendant had a prior opportunity for cross-examination.Â Davis v. Washington, 547 U.S. 813, 821 (2006); Crawford v. Washington, 541 U.S. 36, 68 (2004).

Â Â Â Â Â Â Â Â Â Â Â In this case, the autopsy report was admitted into evidence during the direct examination of the medical examiner who performed the autopsy.Â Because the testifying medical examiner was available for cross-examination, there was no Confrontation Clause violation.Â Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009); Crawford, 541 U.S. at 53Â54; see Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990).Â Thus, the trial court did not abuse its discretion in admitting the autopsy report.

(4)Â Â Â Â Â Â Â Excluding Evidence of SmithÂs Mental-Health History from the Guilt/Innocence Phase Was Not Error

Â Â Â Â Â Â Â Â Â Â Â During AltamiranoÂs cross-examination, Smith attempted to offer emergency room medical records indicating she was suffering from Âdepression thoughts of suicideÂ in July 2007.Â The medical records referred to a previous suicide attempt, ingestion of Valium, and references that Smith had not been taking her anxiety and depression medication.Â Smith argues that exclusion of this evidence, relevant to her capacity to formulate the requisite mens rea, was an abuse of the trial courtÂs discretion.^{^[6]}Â See Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).Â

Â Â Â Â Â Â Â Â Â Â Â Texas does not recognize diminished capacity as an affirmative defense.Â Ruffin v. State, 270 S.W.3d 586, 593 (Tex. Crim. App. 2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005); see Rhoten v. State, 299 S.W.3d 349 (Tex. App.ÂTexarkana 2009, no pet.).Â Rather, it is a Âfailure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense.ÂÂ Jackson, 160 S.W.3d at 573Â74; Ruffin, 270 S.W.3d at 593.^{^[7]}Â Â To be admissible in tending to disprove state of mind, the evidence in this case must have shown that Smith, due to her mental condition, was either unable to form a conscious objective or desire or to engage in conduct causing River PhoenixÂs death, or could not be aware her actions were reasonably certain to cause River PhoenixÂs death.Â See Jackson, 160 S.W.3d at 574; Thomas v. State, 886 S.W.2d 388, 391 (Tex. App.ÂHouston [1st Dist.] 1994, writ refÂd).

Â Â Â Â Â Â Â Â Â Â Â The trial court expressed Âthere is no direct evidence thatÂs been presented to suggest that the hospitalization on I believe July 11, 2007 has any relevance as to her state of mind because thereÂs no direct evidence that she did not have . . . the requisite state of mind to form intent to commit the offense in question.ÂÂ The court determined that, without such a showing, this evidence could only be considered in mitigation.Â

Â Â Â Â Â Â Â Â Â Â Â As further support, Smith cited Article 38.36(a) of the Texas Code of Criminal Procedure, which provides:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005).Â SmithÂs medical records indicate that her treatment plan included medications to treat anxiety and depression and that she was discharged after an appointment was set up for her at a local behavior treatment facility.^{^[8]}Â There was no evidence presented that Smith was not taking her medication and following her treatment plan at the time of the offense.Â As the court pointed out, the record does not demonstrate that SmithÂs state of mind during the July incident, which occurred while she was off of her prescribed medication, was her state of mind at the time of the offense in September.Â

Â Â Â Â Â Â Â Â Â Â Â Because Smith did not present any evidence that she was unable to form the requisite intent due to her depression and thoughts of suicide, the medical records were not admissible as tending to disprove her state of mind.Â See Jackson, 160 S.W.3d at 574; Thomas, 886 S.W.2d at 391.Â Thus, the trial court did not abuse its discretion in failing to admit the records during the guilt/innocence phase.

(5)Â Â Â Â Â Â Â Admitting Evidence of SmithÂs Prior Behavior and Attitude Toward River Phoenix Was Not Error

Â Â Â Â Â Â Â Â Â Â Â Smith complains that introduction of WadeÂs and RobersonÂs testimony regarding SmithÂs demeanor toward River Phoenix amounted to impermissible extraneous-offense evidence.Â She argues that the trial court erred in allowing the testimony over her Texas Rules of Evidence 401, 403, and 404 objections.Â

Â Â Â Â Â Â Â Â Â Â Â A trial courtÂs ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Â Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).Â The interaction between several statutes governs the analysis in this case.Â First, if evidence is not relevant to a fact of consequence in the case, it may not be admitted.Â Tex. R. Evid. 401.Â ÂIn all prosecutions for murder, the state . . . shall be permitted to offer testimony as to all relevant facts and circumstances surrounding . . . the previous relationship existing between the accused and the deceased.ÂÂ Tex. Code Crim. Proc. Ann. art. 38.36(a).Â This article is read in conjunction with Rule 404(b).Â Smith v. State, 5 S.W.3d 673, 677Â78 (Tex. Crim. App. 1999).Â While evidence of other crimes, wrongs, or acts is not admissible Âto prove the character of a person in order to show action in conformity therewith,Â they may Âbe admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.Â Â Tex. R. Evid. 404(b). Â ÂRule 404(b) is a rule of inclusion rather than exclusion.Â Â DeÂ La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).Â Â[I]f evidence (1) is introduced for a purpose other than character conformity; (2) has relevance to a Âfact of consequenceÂ in the case, and; (3) remains free of any other constitutional or statutory prohibitions, it is admissible.ÂÂ Segundo v. State, 270 S.W.3d 79, 88 n.19 (Tex. Crim. App. 2008) (quoting Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)).Â If evidence is admissible under the above rules, it may still be excluded under Rule 403 if the probative value of the evidence is substantially outweighed by unfair prejudice.Â Tex. R. Evid. 403.Â Whether extraneous-offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court.Â Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

Â Â Â Â Â Â Â Â Â Â Â Here, SmithÂs intent is a fact of consequence in this case.Â WadeÂs and RobersonÂs testimony regarding SmithÂs previous actions are facts that have a tendency to make probable the StateÂs theory that Smith possessed the requisite intent at the time of the offense.Â Also, in a murder case, the relationship between an accused and the victim is Âitself a material issue.ÂÂ Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006).Â The evidence was admissible under Rule 401.Â Next, evidence of SmithÂs prior assault and interactions with River Phoenix are also admissible as a demonstration of their relationship under Article 38.36. Â Id. at 704; Baker v. State, 368 S.W.2d 627, 632 (Tex. Crim. App. 1963) (finding prior assault on deceased six years ago not too remote, thus admissible under prior version of Article 38.36).

Â Â Â Â Â Â Â Â Â Â Â Although Wade and Roberson testified about prior bad acts, the State argued their testimony was being offered only to demonstrate intent and absence of mistake or accident, and the trial court issued a limiting instruction to the jury to that effect.Â Specifically, the trial court instructed the jury it could not consider the testimony Âto prove the character of the Defendant in order to show that she acted in conformity therewith on the occasion in question.ÂÂ ÂEvidence of prior extraneous offenses committed by the accused against the victim of the offense charged that show ill will or hostility toward the victim Âis admissible as part of the StateÂs case in chief as circumstantial evidence of the existence of a motive for committing the offense charged.ÂÂÂ Page v. State, 819 S.W.2d 883, 887 (Tex. App.ÂHouston [14th Dist.] 1991, pet. refÂd) (quoting Foy v. State, 593 S.W.2d 707, 709 (Tex. Crim. App. [Panel Op.] 1980)); see Bush v. State, 958 S.W.2d 503, 505Â06 (Tex. App.ÂFort Worth 1997, no pet.) (prior instances of violence toward murder victim admissible).Â Thus, although extraneous, the evidence was admissible under the exceptions listed under Rule 404(b).Â Garcia, 201 S.W.3d at 704 (evidence of prior bad act against victim Âis admissible under Rule 404(b) for the purpose of illustrating the nature ofÂ the relationship between accused and victim).

Â Â Â Â Â Â Â Â Â Â Â Because WadeÂs and RobersonÂs testimony was introduced for a purpose other than character conformity, had relevance to intent, absence of mistake, and the nature of the relationship between Smith and River Phoenix, and remained free of any other constitutional or statutory prohibitions, it was admissible.Â Rankin, 974 S.W.2d at 709.Â Thus, we move to the question of whether the probative value of their testimony was substantially outweighed by unfair prejudice.Â Tex. R. Evid. 403; Garcia, 201 S.W.3d at 704.Â It is SmithÂs burden to establish exclusion under this rule.Â Montgomery, 810 S.W.2d at 389.Â

Â Â Â Â Â Â Â Â Â Â Â The first factor we analyze in determining whether the prejudice of an extraneous offense substantially outweighs its probative value is Âhow compellingly the extraneous offense evidence serves to make a fact of consequence more or less probableÂa factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense.ÂÂ Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citing Montgomery, 810 S.W.2d at 389Â90).Â As discussed above, WadeÂs and RobersonÂs statements compellingly made the allegation that Smith possessed the requisite murderous intent more probable.Â This factor favors admission of their testimony.Â

Â Â Â Â Â Â Â Â Â Â Â The second factor concerns the potential the other offense evidence has to impress the jury Âin some irrational but nevertheless indelible way.ÂÂ Santellan, 939 S.W.2d at 169 (citing Montgomery, 810 S.W.2d at 389Â90).Â There is nothing in the record to indicate SmithÂs prior bad acts would Âlure the factfinder into declaring guilt on a ground different from proof specific to the offense chargedÂ in this murder case, especially given the trial courtÂs lengthy Rule 403 limiting instruction.Â Old Chief v. United States, 519 U.S. 172, 180 (1997).Â This factor also favors admission.

Â Â Â Â Â Â Â Â Â Â Â The third factor looks to Âthe time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense.ÂÂ Santellan, 939 S.W.2d at 169 (citing Montgomery, 810 S.W.2d at 389Â90).Â The State presented a total of eleven witnesses.Â WadeÂs and RobersonÂs testimony regarding the extraneous acts comprised a small portion of the record.Â Therefore, we conclude this factor also weighed in favor of admitting their testimony.Â

Â Â Â Â Â Â Â Â Â Â Â The last factor involves the Âforce of the proponentÂs need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.ÂÂ The StateÂs need for WadeÂs and RobersonÂs testimony was required to rebut the defensive theory that only Dewitt was responsible for River PhoenixÂs death.Â Â Although Dewitt and K.T. testified to actions conducted by Smith leading up to River PhoenixÂs death, the jury may have decided DewittÂs testimony was less credible due to a deal with prosecutors that he would not receive the death penalty if he testified against Smith.Â The jury could also believe that K.T.Âs testimony was biased toward her father, especially since she did not witness the beatings which occurred on the day before River PhoenixÂs death, either because she was in school or because the beatings occurred after her bedtime.Â Moreover, testimony of witnesses outside of the home could lend more credibility to DewittÂs and K.T.Âs testimony.Â Thus, we find that the final factor also weighs in favor of admission and that the trial court did not err in concluding the probative value of WadeÂs and RobersonÂs testimony was not substantially outweighed by unfair prejudice.

Â Â Â Â Â Â Â Â Â Â Â Finding no error in admission of WadeÂs and RobersonÂs testimony to demonstrate SmithÂs relationship with River Phoenix and intent to cause her death, we overrule this point of error.

Â Â Â Â Â Â Â Â Â Â Â We affirm the judgment of the trial court.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Josh R. Morriss, III

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice

Date Submitted:Â Â Â Â Â Â Â Â Â May 10, 2010

Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â June 2, 2010

PublishÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

^{^[1]}Brady v. Maryland, 373 U.S. 83, 87 (1963).

^{^[2]}A multifarious issue is one that raises more than one specific ground of error.Â In re S.K.A., 236 S.W.3d 875, 894 (Tex. App.ÂTexarkana 2007, pet. denied).Â We have repeatedly warned litigants to refrain from raising multifarious points of error.Â See, e.g., In re Guardianship of Moon, 216 S.W.3d 506, 508 (Tex. App.ÂTexarkana 2007, no pet.); Newby v. State, 169 S.W.3d 413, 414 (Tex. App.ÂTexarkana 2005, pet. refÂd).Â Failure to heed our warnings runs the risk of having any multifarious issue(s) being summarily overruled.Â Newby, 169 S.W.3d at 414; Harris v. State, 133 S.W.3d 760, 764 n.3 (Tex. App.ÂTexarkana 2004, pet. refÂd); Parra v. State, 935 S.W.3d 862, 875 (Tex. App.ÂTexarkana 1996, pet. refÂd).Â In the interest of addressing substantive issues, we will not take the opportunity in this case to overrule this point of error on the basis of it being multifarious.

^{^[3]}Further, Âfailure to request a continuance waives any Brady violationÂ and indicates the evidence was, in fact, not material.Â Williams, 995 S.W.2d at 761 (citing Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. [Panel Op.] 1982)); Yates v. State, 941 S.W.2d 357, 364 (Tex. App.ÂWaco 1997, pet. refÂd).Â We note that counselÂs request for continuance occurred after Talley was excused.

^{^[4]}Impeachment evidence Âfalls within the Brady rule.ÂÂ Bagley, 473 U.S. at 676.

^{^[5]}The record demonstrates that Smith did not argue that she be allowed to continue questioning Wade about HellÂs Lovers to examine possible bias.Â This argument was only offered in reference to RobersonÂs cross-examination.

^{^[6]}In support of her position, Smith cites the Court to cases discussing the affirmative defense of insanity.Â

^{^[7]}A trial judge has discretion to determine whether evidence regarding state of mind would support a lesser-included offense, and the evidence can be presented during punishment in order to reduce the sentence assessed by the jury.Â Jackson, 160 S.W.3d at 574.

^{^[8]}The additional 1,560 pages of medical records spanning several years, which Smith sought to introduce, covered mostly irrelevant checkups and hospital appointments, including physical diagnoses of tuberculosis, scoliosis, and resulting surgeries and back pain.Â Smith also sought to introduce Illinois Children and Family Services Department records, which may have provided insight into her home life as a child.Â We assume these records were introduced because some make references to a past medical history of depression and anxiety.Â However, a majority are simply irrelevant.Â Trial counsel did not point to the page numbers which supported his position that the records should be introduced, either to the trial court or in his brief.Â A trial court need not sort through challenged evidence in order to segregate admissible evidence from excludable evidence.Â Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992); see In re S.M., 207 S.W.3d 421, 424 (Tex. App.ÂFort Worth 2006, pet. denied) (error not preserved where trial court required to sort through admissible and inadmissible evidence).Â In any event, there were no medical records provided for our review after July 2007.

Melvin Goodspeed v. State

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