In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-01-206 CR
____________________
WILLIAM NYLES THRAILKILLE, Appellant
V.
THE STATE OF TEXAS, Appellee
Orange County, Texas
Trial Court Cause No. D 970110-R
William Nyles Thrailkille appeals his conviction and 40-year sentence for murder. Tex. Pen. Code Ann. § 19.02 (Vernon 1994). The indictment charged Thrailkille with "intentionally and knowingly caus[ing] the death of an individual, Misty Goza, by shooting [her] with a firearm. . . ." on or about February 7, 1992. Thrailkille contends the victim committed suicide. He raises six issues on appeal: issue one challenges the factual sufficiency of the evidence to support the conviction; issue two contends that Thrailkille was denied effective assistance of counsel at trial; and issues three through six challenge certain of the trial court's evidentiary rulings.Issue One--Factual Sufficiency of the Evidence
In considering the factual sufficiency of the evidence, an appellate court views all the evidence in a neutral light and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). An appellate court must employ appropriate deference to prevent the substituting of its judgment for that of the fact finder, and should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id.
State's Evidence
Vernon Wade Odom, an officer with the Orange County Sheriff's Department, responded on February 7, 1992, to a "possible suicide" death scene in Orange County, Texas. He observed a deceased female lying on a bed on her back, with a shotgun across the upper portion of her body. The decedent's left hand was around the muzzle of the gun and there was a severe injury to the upper portion of the head from what appeared to be a shotgun blast. After emergency personnel had removed the deceased's body, Odom recovered a spent shotgun shell, or "hull," from under where the right hip of the body had been laying.
Thrailkille accompanied Odom back to the sheriff's office. Odom conducted a trace metal test on Thrailkille, which would indicate whether the person had contact with a metal substance. The test results from Thrailkille were positive. Odom also conducted an "atomic absorption" test on Thrailkille, which is used to detect gun powder residue. That test was sent to the Department of Public Safety in Austin for analysis. Odom also performed these same tests later on the hands of the decedent during the autopsy. He testified that the trace metal test on the decedent returned a positive result. He performed the atomic absorption test on the hands of the decedent, and forwarded the test to Austin for analysis.
Deputy Johnny Westbrook was a captain with the Orange County Sheriff's Department. Westbrook thought that some of the things the other officers were telling him about the case "didn't sound right," so he ordered the officers to investigate further. Westbrook subsequently interviewed Thrailkille, and, after giving Miranda warnings, took Thrailkille's written statement. In Thrailkille's written statement, read to the jury by Westbrook, Thrailkille said that he and Misti had been arrested in Bridge City three or four nights before. Thrailkille stated that he was released after making a deal with the police. He and Misti went to Chris Smith's house on the evening of February 6, 1992, arriving about 7:30 p.m. They both left about 1:30 or 2:00 a.m. on the 7th, returning straight to Thrailkille's house. He stated that he and Misti argued over their displays of affection for other parties. When Thrailkille mentioned Misti's ex-boyfriend Matt, she grabbed her keys and ran out the door. He heard squealing tires as she left. She returned a few minutes later, soaking wet from the waist down, telling Thrailkille that she had wrecked her car. Thrailkille got dressed, and went outside to retrieve the car. He found the car in a pool of water, but was not able to get it started. When he came back inside he saw Misti with a knife in her hand, which he took away from her and threw outside. He stated that she attempted to drink some kind of liquid from a bottle she got from the washroom. He took that away from her. When he came back to his room, she had taken his shotgun from the rack, and was attempting to load it. He took the gun away from her and put it back on the rack. Misti got the gun again, but did not load it. He stated that the two of them both had hold of the weapon, wrestling over it. He thought he had settled her down, and he then took the gun and put it back on the rack. He said he was going upstairs to call a wrecker for her car. Before he got up the stairs, he heard the gun go off. When he went back downstairs, he "could see that half of her head was gone." He then went upstairs, where his mother, his little brother, and her boyfriend were, and called 9-1-1. After Thrailkille's mother asked him if his marijuana paraphernalia was in his room, he went downstairs, retrieved the items, and threw them in the river.
Juan Antonio Rojas, a chemist employed by the Texas Department of Public Safety Crime Lab in Austin, performed analysis on the two atomic absorption test kits. No residue was detected from the test performed on Thrailkille. He testified that use of water or cleaning of the hands could have removed all traces of the residue. The left palm of the deceased tested positive. A positive result means that: 1) the person fired the weapon; 2) the person was close to a weapon as it was being fired; 3) the person may have handled a weapon that was recently fired.
Ladina Aven was a 9-1-1 dispatcher for Orange County in 1992. In the early morning hours of February 7, 1992, she received a 9-1-1 call reporting a suicide. She remembered the caller as not seeming to be upset, but admitted to not knowing Thrailkille and being unaware of how he would act under pressure.
Gary Scott was employed with the criminal investigation division of the Orange County Sheriff's Department. He originally got the call to the scene as a suicide. He observed the deceased lying on a bed in the bedroom "with the upper portion of her head gone." Scott also spoke to Thrailkille, who stated that he and Misti had an argument, that Misti had picked up a knife and tried to cut her wrists and that he took the knife away from her and threw it into the woods. Thrailkille also told Scott that Misti had picked up a shotgun and loaded one shell into it, and that he had taken the gun away from her and put it back on a rack. Thrailkille said that Misti had left in her car, but returned a few minutes later stating that she had wrecked the car. Thrailkille stated that he went out to try to retrieve her vehicle. When the car wouldn't start, he returned to the house. He left Misti standing in the bedroom when he went upstairs to call a wrecker. Then he heard the shotgun blast.
Scott was able to locate Misti's car, which appeared to have been in an accident, in a flooded area about 50 yards from the residence. Scott subsequently returned to the scene, where he observed clothing in the washing machine and on the floor. He investigated the pattern left by the pellets from the gun. He was able to recover a knife from the area in which Thrailkille said he had thrown it.
Linnes Hubbard held the rank of major with the Orange County Sheriff's Department, handling criminal investigations at the time of the incident. He has many hours of formal training in criminal investigations, and has testified as an expert witness on many occasions. The next morning, investigating officers contacted him by telephone regarding the death of Misti Goza. After examining photographs of the death scene he concluded that, based upon the positioning of the body, the disarray of the clothing, and the positioning of the shotgun, it would have been impossible for decedent to have pulled the trigger herself, completely demolishing her brain, and still have the motor movement to move the hand to the position shown on the picture. Hubbard testified that, based upon his experience, females desiring to commit suicide with a weapon do not generally shoot themselves in the head. He also testified that the firing of a shotgun like the one shown will normally cause the weapon to jump backward from recoil, as much as 6 to 8 feet. He reviewed the reports, received Thrailkille's statement several days after the incident, and then he spoke to Thrailkille. Thrailkille told Hubbard that he and Misti did not have an argument, but they had discussed Misti's alleged sleeping with her ex-boyfriend Matt. Thrailkille told Hubbard that he left the house to try to get Misti's car started, but could not do so, and that he returned to the house to call a wrecker. He said that Misti got a knife and tried to kill herself and that he took the knife from her and threw it outside. Thrailkille told Hubbard that Misti obtained a gun, he attempted to take the gun away from her, they wrestled over the shotgun on the bed, and he took the gun away from her. He put it back on the rack before going upstairs to call the wrecker, and then he heard the gunshot. He returned downstairs, saw Misti, and called 9-1-1. Thrailkille told Hubbard that the only thing he moved at the scene before police arrived was some drug paraphernalia from under the bed. He said that Misti's clothing was wet due to the location where her car stalled. He said he and Misti were intoxicated.
In his testimony, Hubbard pointed to the following evidence:
There was not much distance to travel leaving the lower room of the house for the stairway that lead to the top floor, and, if the gun was back on the gun rack as Thrailkille said, it would take an experienced person at least 15 seconds to load the gun;
The positioning of the shell casing they found underneath Misti meant that someone would have had to be on top of her when the shotgun was fired to allow the cartridge to fall under her where it was found;
The recoil that would occur due to the firing of the weapon would not have left Misti's hand on the barrel of the gun, as depicted in the pictures; and
The targeting of the shotgun blast indicated that Misti's head was up and not completely on the bed when the gun was fired.
On cross-examination, Hubbard testified that he was not aware of published articles which disagreed with his belief that women do not generally shoot themselves in the head to commit suicide, and he still held to his belief based upon his own experience. He acknowledged that some of Misti's actions were consistent with suicidal behavior.
Steve Mardis was at the time of trial a lieutenant in the narcotics division of the Orange County Sheriff's Department. In February of 1992, he was an officer in Bridge City. On the evening of February 4, 1992, he spoke to Misti, who had been arrested, about becoming a drug informant. Misti told him she would think about it and get back to him. Mardis testified that Misti told him at that time she did not want to go home with her boyfriend, Thrailkille, and asked Mardis to take her home, which he did.
Claude Wimberly was a justice of the peace in Orange County. His official duties included going to the scene of a death, preparation of the death certificate and conducting an inquest. He identified Misti from her driver's license at the scene. He was told by Thrailkille at the scene that Misti's death was the result of suicide, and that he and Misti had an argument just before she shot herself. When Judge Wimberly talked to Thrailkille, it appeared that Thrailkille had just come out of the shower, because his shoulder-length hair was wet and he may have been barefoot. The judge made a report of the inquest, which indicated the cause of death as a shotgun blast to the head. He testified he did have some reservations about Thrailkille's explanation and so informed the investigating officers.
Mathew Brian Johnson considered Misti to be his wife. They first started dating when he was 16 and she was 14, and lived together. They were together for four years, although they did not always live under the same roof. Johnson testified as to several incidents of Misti's suicidal behavior during their relationship, such as overdoses of medication and cuts on her wrists. Johnson testified that he did not regard these as "serious" attempts at suicide. In the period several days before Misti's death, Johnson testified that he and Misti had been discussing a future together, even selecting a place where they might live, pursuit of future careers, the giving of a ring by Johnson and the ending of other relationships. He related that days before her death, Misti told him her sister had just had a baby. Mathew was going to take his microwave oven to her so that she could heat up the baby's formula. That was the last time he talked to Misti.
Elgin Royce Cole was an acquaintance of Thrailkille for 20 years; they were close friends at one time, but not as close in later years. In February of 1992, Thrailkille asked Cole to meet him, and they took a boat ride together. Thrailkille told him about Misti's suicide and mentioned her previous suicide attempts. Four or five years later, Thrailkille and Cole were on another boat ride, accompanied by James Wedgeworth. Cole testified that he heard Thrailkille tell Wedgeworth the law would never be able to prove anything against him:
A. Well, James [Wedgeworth] was questioning him about the girl and all and what happened and they were talking about all different things about the law and, you know, everybody was pretty much in agreement saying, you know, to hell with the law and this and that.
Q. [By the prosecutor] Yes, sir.
A. And then he ended up stating that they wouldn't-the law would never be able to prove anything on nothing because, you know, they were just dumbasses or whatever. Sorry.
Q. Okay. Now, as far as the substance of your conversation with them - with him about this, was that the last conversation you had with him about this event, the death of Misti Goza?
A. Well, yes. I don't ask him about it the times when I see him. Even that day James had - was the one questioning him. I was just listening to them talk.
Q. Yes, sir.
A. And that's when the sentence was said, you know, that they'll never be able to prove anything.
James Wendell Wedgeworth recalled riding on a boat with Cole and Thrailkille, and hearing Thrailkille tell him first about the incident with Misti, describing a supposed suicide. When pressed, however, Thrailkille told them that he had done it, but they (the law) would never be able to prove it.
Q. [By prosecutor] Okay. And did you have a conversation with Billy Thrailkille about the death of Misti Goza?
A. We was talking about that in general, yeah.
Q. Okay. And, specifically, did you speak with him about how she died, whether it was a suicide, not a suicide, if he was involved or not?
A. Well, he had told me about the incident, fighting - they fought; he went - she went down the road; come back momentarily; a car in a ditch or a flat tire, one or the other, something; and she had come back; and they talked a little bit more; and he went upstairs; and, boom, that happened.
Q. Yes, sir.
A. And we was talking about that and something to the effect of - I was like "No, you know, this is me and Royce. You know, what's up?" I think finally I said, you know, "Did you do it?"
And he said, "Yeah, but they'll never be able to prove it."
They were drinking beer and smoking marijuana at the time of the conversation.
Oscar Griffin, M.D. served as the coroner for Orange County and performed the autopsy on Misti Goza in 1992. He noted that a shotgun blast had virtually destroyed decedent's head. He noted that Misti had been intoxicated at the time of her death. He ran a drug screen, and found that she had recently ingested marijuana, although not necessarily right before her death. He prepared an autopsy report. He described the wound as a "contact wound" because the skin had been blown out from it and there were powder burns around the edges of the wound. He also described a "U-shaped" defect on the right side of the head, consistent with the round barrel of a gun. He determined that the gun had not been pressed perfectly against the skin, but at some angle, explaining the "U" shape rather than an "O" shape. The entrance wound was on the right side, in the right temple area. The blast went from right to left, slightly from frontwards to backwards, and slightly downward to upwards. Dr. Griffin testified, to a reasonable medical certainty, when viewing the photographs taken of the death scene showing Misti's hand over the gun barrel, that the hand could not have ended at that location had the decedent killed herself. After the brain is destroyed, all muscles go limp. He testified that the hand would not have ended up in that position due to a cadaveric spasm, i.e., a spasm that occurs at the time of death. He testified that his findings would indicate that the butt of the shotgun would have been lower than the barrel. He acknowledged that recoil from the gun shot could have moved the hand.
Defense Evidence
James Benjamin Riley was a friend of Thrailkille and Misti. He knew Misti for about three months and he saw her about 5 times a week during that time. Misti went through "mood swings," was familiar with guns, and used drugs and alcohol.
Christopher Smith had been a friend of Thrailkille for 7 - 8 years in 1992, and had known Misti three or four months. He described the relationship between Thrailkille and Misti as close, but they were free to see other people. He described Misti's moods as going up and down. There was a party on February 6, 1992, at his residence; he testified that Thrailkille and Misti, James Riley, Leslie McIntosh, and Jeff Dugas were there. They were drinking, playing pool, listening to music, and smoking marijuana. Smith had a conversation with Misti that night. He testified that she was depressed, and he observed scars on her wrists. Misti informed him of past attempts at suicide. Smith testified that he and Misti discussed whether there was a God, and that Misti gave him a pewter pendant necklace which he had previously seen her wearing. Smith considered that to be significant. He testified that Misti asked him to shoot her. He stated that Misti was familiar with guns, and that she carried one in her purse. On the night of the party, late in the evening on February 6 and early in the morning of February 7, Misti and Thrailkille left his house between midnight and 1:00 a.m., or even possibly later. Smith got a call from Thrailkille that evening and went over to Thrailkille's house. He did not see Thrailkille take a shower that night, and described his hair as dirty or oily. Smith was not aware that Misti was afraid of firearms or that her mother had died as a result of a firearm. He was not aware that Misti had some money, or that she liked to give things to people. Smith admitted that some of his testimony -- about Misti's request that he shoot her and about the necklace -- was not in his original statements to police.
Roger Carl Hudson was Thrailkille's great-uncle. He cleaned up the room where the shooting occurred after the police had completed their investigation. He found articles of women's clothing in the room. He testified that the distance from the threshold of Thrailkille's room to the stairway leading to the upper floor of the house was 10 - 15 feet.
Leslie Dugas, had known Thrailkille about three years, and Misti about three months, at the time of the incident. She was present at the gathering at Chris Smith's house prior to the incident. She stayed there about three hours, and she confirmed people there were drinking, shooting pool, and smoking marijuana, but she personally did not smoke marijuana that night. Dugas testified that Misti attempted to give her a long-sleeve black shirt Misti had been wearing. She described Misti's moods as being up and down, but never "bounce-off-the walls" happy. She testified as to a previous occasion when she, Jeff, Billy, and Misti were in a bar, and Misti suddenly ran out the door. Thrailkille described her behavior at that time as "She's tripping." Misti had told her about previous suicide attempts.
Curtis Edwin Willis testified as a clinical and forensic psychologist. He testified as to the symptoms to look for in a suicide situation: medical or psychological problems, situational issues such as broken relationships, past attempts at suicide, and an impulsive personality. In response to a hypothetical question listing a history of cutting wrists, drug overdose, asking someone to shoot her, giving away personal items, depression, and using drugs and alcohol, he testified that such behavior was consistent with suicide. He was aware of a 1992 study which showed that 25 out of 45 women who committed suicide did so by shooting themselves in the head. Willis did not know the victim's name in this case, and he acknowledged that unsuccessful suicide attempts are often cries for help rather than serious attempts to take the person's life.
Paul B. Radelat, M.D. is a board-certified pathologist. He has performed several thousand autopsies. He testified a contact wound as a result of a shot to the head with a gun in the hand of the victim is consistent with suicide. Dr. Radelat concluded that the following symptoms would be consistent with suicide: an overdose of Valium with a suicide note, attempts to drink cleaning fluid and to cut her wrists one day before her death, a state of intoxication and the presence of marijuana in her system at the time of her death, previous giving away of personal belongings, questioning the existence of God and questioning the hereafter, and asking a friend to shoot her. Radelat was asked to examine photographs and to assume that a cadaveric spasm occurred. He acknowledged the potential for change in his opinion. He neither performed an autopsy on Misti nor discussed with Dr. Griffin the autopsy findings. He acknowledged that the symptoms and findings he observed were also consistent with homicide.
Gloria Cole's testimony implied that James Wedgeworth's testimony implicating Thrailkille was false, because Wedgeworth wanted to get back at Thrailkille for sleeping with the woman who was now Wedgeworth's wife.
State's Rebuttal
Royce Cole testified on rebuttal that his testimony was truthful and that his wife, Gloria Cole, was under psychiatric care.
Review
Because Thrailkille has not raised a legal sufficiency challenge, we begin our review with the presumption that the evidence is legally sufficient to support the verdict under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Conner v. State, 67 S.W.3d 192, 198 (Tex. Crim. App. 2001). The evidence is factually insufficient if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and unjust, or, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and unjust. See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).
Some evidence was presented that Misti Goza's death was a suicide; but we cannot say that the jury verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson v. State, 23 S.W.3d at 7. The jury was entitled to believe testimony that the shotgun used in Misti's death could not have ended up in the position shown in the photographs if she had fired the gun herself. The location of the shell casing beneath the body, Thrailkille's taking of a shower subsequent to the shooting to explain the negative results in the atomic absorption test, and the location of the skull and brain fragments presented circumstantial evidence to support the verdict. Although there was testimony of Misti's up and down moods and previous attempts at suicide, there was also testimony that she and Matt Johnson were ready to get back together and that they were making positive plans for the future. If the jury did not believe she committed suicide, then they did not believe Thrailkille's statements. He was the only other person present when the death occurred. Just a few days before her death, Misti told Bridge City police that she may be willing to serve as an informant in a narcotics investigation. She also told the investigating officer that she did not want Thrailkille to take her home. The jury could reasonably believe Cole and Wedgeworth, who testified essentially that Thrailkille admitted in their presence that he murdered Misti. An appellate court may not unduly interfere with the fact finder's resolution of conflicts in the testimony or its determination of the credibility of witness testimony. See Vasquez v. State, 67 S.W.3d at 236; Drost v. State, 47 S.W.3d 41, 45 (Tex. App.--El Paso 2001, pet. ref'd). Viewing all of the evidence, and giving proper deference to the trier of fact, we overrule appellant's issue one. Issue Two-Ineffective Assistance of Counsel
In issue two, Thrailkille contends his trial counsel was ineffective. He claims his attorney should have called as a witness Loretta Hoffpauir, Thrailkille's mother in the guilt-innocence portion of the trial. In testimony at the hearing on the motion for new trial, Ms. Hoffpauir testified that Thrailkille came into her bedroom in an excited state on the night of Misti's death and told her Misti had killed herself. She further testified as to certain facts regarding Thrailkille's condition that she observed that would lead her to believe that he had not showered before the police arrived.
The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed2d 674 (1984). An appellant must show that his counsel's representation fell below the standard of prevailing professional norms and there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Id.; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. Bone, 77 S.W.3d at 833. Any allegation of ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffective assistance claim. Id.
An appellate court begins with a presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effect of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992). Generally, counsel's strategic decision to not call a witness will be questioned only if there is no plausible basis for failing to call the witness. Velasquez v. State, 941 S.W.2d 303, 310 (Tex. App.--Corpus Christi 1997, pet. ref'd). Thrailkille cites Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986), in support of his contention that trial counsel's failure to call Ms. Hoffpauir had no plausible basis, and that her exculpatory testimony would have affected the outcome of this case. However, Butler involved multiple exculpatory witnesses who would have testified that the defendant was not the killer. Counsel had not contacted some of them, and could offer no conceivable trial strategy why he did not utilize their testimony at trial. Id. at 54 - 55. The Butler court held that the standard of reasonably effective counsel had not been met and remanded the case for a new trial. Id. at 57. Here, the issue of whether Thrailkille had showered between the time of death may have been significant because his atomic absorption test proved negative, and expert testimony indicated that the test could have been affected by washing of the hands. The testimony of Chris Smith, already in evidence was to the effect that Thrailkille had not showered because his hair was oily and dirty. The issue of suicide was presented through many witnesses, and through appellant's statements. The trial counsel may have reasoned Ms. Hoffpauir's testimony was duplicative and would not have been of such significance as to have affected the jury's determination. Ms. Hoffpauir is defendant's mother. She testified at the motion for new trial that she told her son to remove marijuana paraphernalia from the scene before the police arrived. Under these circumstances trial counsel reasonably may have considered her testimony to be more harmful than helpful. The record contains no explanation why Ms. Hoffpauir was not called as a witness. Thrailkille failed to overcome the presumption that counsel's not calling defendant's mother as a witness was a matter of reasonable trial strategy. Issue two is overruled.
Issue 3-Opinion Testimony as to the Means of Committing Suicide
Thrailkille contends the trial court committed reversible error in admitting the testimony of Linnes Hubbard that in his opinion women who commit suicide are unlikely to do so by shooting themselves in the head. Hubbard is an experienced police officer and criminal investigator. He was first made aware of the incident when officers contacted him at his home the next morning. The investigating officers brought him pictures of the scene. He acknowledged never having visited the crime scene in its original state. The testimony at issue here was as follows:
Q. . . . Now, you had said that - . . .you didn't like - - or you were looking at that photo; and the placement of the gun troubled you -
A. Yes, sir.
Q. - the shotgun?
A. Yes, sir.
Q. Why was it troubling to you specifically?
A. Well, this gets back to the thing; but in my training and -
[Defense counsel]: Excuse me.
A. - in the results of a lot of things, the training and consulting with other
officers and everything, its -
[Defense counsel]: Excuse me, Your Honor. At this point in time. I'm going to object unless he can show that he has the proper medical background to be able to draw an opinion that he's attempting to do. There has been no qualification of his expertise in the field of medicine to be able to make that decision.
THE COURT: All right. Objection is overruled.
Q. [By the prosecutor] You can answer the question, Mr. Hubbard.
A. Okay. The - normally when a female commits suicide with a weapon, it's - the wound is to the body.
Q. Okay.
A. Very, very seldom it's to the head. And reverse in a male situation.
Q. Right.
A. That troubled me.
Q. Yes, sir.
On cross-examination, Hubbard testified that he was not aware of certain published articles which concluded the contrary, and he stuck by his opinion.
Thrailkille contends on appeal that Hubbard was not sufficiently qualified as an expert to render this opinion; that Hubbard's "opinion" was as to the guilt or innocence of the accused; that the testimony improperly allowed Hubbard to interpret the meaning of conduct or of another; and, that Hubbard's "expert" testimony did not meet the threshold standards of admissibility as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed2d 469 (1993). The State contends that defendant failed to properly object with sufficient specificity to make the trial court aware of the complaint he now asserts on appeal. The objection raised at trial was that Hubbard was not qualified in the field of medicine. The State also contends that the testimony was properly admitted by the trial court under recognized rules of law.
To preserve error, a defendant must lodge a timely and specific objection. The purpose of requiring an objection is to give the trial court or opposing party the opportunity to correct the error or remove the basis for the objection. If a timely and specific objection is not made, error is not preserved. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). The point of error on appeal must correspond to the objection raised at trial. Pina v. State, 38 S.W.3d 730, 736 (Tex. App.--Texarkana 2001, pet. ref'd).
Defendant's objection at trial did not question Hubbard's qualifications as a criminal investigator or his experience with suicide victims. Hubbard based his opinion on his training and experience as a criminal investigator. The objection made was not sufficiently specific to inform the trial judge that the defense was objecting to Hubbard's expert qualifications to express opinions based on his experience and training concerning suicides. The objection made at trial does not correspond to the issue raised on appeal. Issue three is overruled.
Issue Four-Improperly Admitted Testimony
In issue four, Thrailkille contends the trial court erred in admitting expert testimony from Orange County Deputy Scott that decedent's body was "out of place," and testimony regarding disbursement of blood. The record shows that Scott was an experienced police officer and criminal investigator. Upon questioning by the prosecutor, Scott testified, without objection, regarding his observations of what appeared to be skull or brain matter on a chair in front of the bed, on the wall behind the decedent, and on the bed itself. He testified, over an objection that he was not qualified to give medical testimony, as to the location of the "blood and other matter." He was then shown a photograph of the scene taken before he arrived and was asked, over objection that he had not been sufficiently qualified as an expert in accident reconstruction, if the location of the blood and other material at the scene was consistent with the gun being pointed in the direction shown on the photograph. He responded "Yes."
A police officer with relevant training or experience may qualify to give opinion testimony. See Tex. R. Evid. 701 and 702. Thomas v. State, 916 S.W.2d 578, 580-81 (Tex. App.--San Antonio 1996, no pet.); Austin v. State, 794 S.W.2d 408, 410-11 (Tex. App.--Austin 1990, pet. ref'd); Yohey v. State, 801 S.W.2d 232, 243 (Tex. App.--San Antonio 1990, pet. ref'd). See also Ventroy v. State, 917 S.W.2d 419, 422 (Tex. App.--San Antonio 1996, pet. ref'd). Scott's testimony as to whether the positioning of the material was consistent with the gun being pointed from a certain direction was within the knowledge of an experienced police investigator. We find the reliability of Scott's testimony to be sufficiently established. See generally Nenno v. State, 970 S.W.2d 549, 561 (Tex. 1998) (discussing questions to be asked in assessing reliability of expert testimony based on experience and training). The trial court did not err in overruling the defense objection. Issue four is overruled.
Issues Five and Six--Alleged Erroneous Admission of Hearsay
In issue five, Thrailkille argues the trial court erred in admitting hearsay testimony of the victim, Misti Goza, as related by Lieutenant Steve Mardis of the Orange County Sheriff's Department. On February 4, 1992, Mardis was employed by the Bridge City police department. On that date, Misti was arrested and Mardis approached her about possibly becoming a police informant. Misti told Mardis she would have to think about it and get back to him. Mardis testified, over hearsay objection, that she did not want Thrailkille to take her home, and asked Mardis to do so. He did. At closing, the prosecutor referred to this testimony as follows:
Well, a few days before this offense - and remember the times are funny on this because we're talking about day and night. On Tuesday the 4th they get pulled over, get arrested in Bridge City. Remember that? And Misti talked to Steve Mardis, and Steve Mardis testified to you that she was going to turn over drug people. She was going to be an informant. Remember that? Very important. That happened on Tuesday. Well, that was late in the evening. So, she got home. But what did she say before she went home? "I don't want Billy Thrailkille bringing me home." Any one of you have a red flag that just went up in your head because it should? Think about this in context. I'm telling you if you think through this evidence, inescapable conclusion of guilt. "I don't want Billy Thrailkille."
A trial court's ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. An appellate court should not reverse an evidentiary ruling which is within the zone of reasonable disagreement. Dorsey v. State, 24 S.W.3d 921, 928 (Tex. App.-Beaumont 2000, no pet.). Rule 803(3) of the Rules of Evidence excepts from the hearsay rule "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will." The statement of the victim of a crime, related by another person, expressing fear of the defendant, has been held to be admissible under Rule 803(3) as a statement of existing state of mind. Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000); Dorsey v. State, 24 S.W.3d at 927-28; Anderson v. State, 15 S.W.3d 177, 185 (Tex. App.--Texarkana 2000, no pet.). The trial judge did not err in admitting the testimony. Issue five is overruled.
In issue six, Thrailkille claims error by the trial court in admitting testimony that Misti informed her ex-boyfriend, Mathew Johnson, that her relationship with Thrailkille was over. Under Rule 803(3) of the Rules of Evidence, statements of the intent of the declarant with regard to relations have been held to be admissible as showing future intent, and also admissible to demonstrate state of mind. Dorsey v. State, 24 S.W.3d at 928, (testimony that victim not getting along with husband/defendant, and victim had been seeking divorce); Vann v. State, 853 S.W.2d 243, 250 (Tex. App.--Corpus Christi 1993, pet. ref'd)(testimony that the victim stated that he was not happy in his marriage and wanted to find a way out was admissible as a statement of emotional state and intent to act). The trial court did not err in overruling defense counsel's hearsay objection to Johnson's testimony. Issue six is overruled.
The judgment and sentence of the trial court are affirmed.
AFFIRMED.
PER CURIAM
Submitted on October 29, 2002
Opinion Delivered December 18, 2002
Do Not Publish
Before Walker, C.J., Burgess, and Gaultney, JJ.