In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-08-164-CR
_____________________
RAYMOND YOUNG, Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Cause No. 92153
A jury convicted Raymond Young of the murder of Sheila Davis, and assessed a punishment of confinement in prison for life. In five issues, Young asserts he was denied a fair trial and should be granted a new trial. Our review of the record reveals no ground for reversal of the trial court's judgment on any of the issues raised. We therefore affirm the judgment.
Background
Sheila Davis was engaged to Demond Guidry. On the day she was killed, she and Guidry went to the domestic crime violence office to press charges against Raymond Young for threatening to kill Davis. Raymond Young and Sheila Davis had a relationship in the past. Young is the father of Davis's child. Guidry testified that Young called Davis's cell phone while Guidry and Davis were talking to an officer at the family violence unit.
That night, Guidry and Sheila Davis were at home when Guidry heard a knock at the door. He asked who it was. A muffled voice, almost like a woman's voice, responded. Guidry testified he opened the door, saw a shotgun, and "fell against the door." The gunman fired the shotgun and forced his way into the house. Davis ran to the back of the house. Guidry thought he would be shot, but the man went after Davis. A police officer found Davis dead under a covered patio next door. Guidry identified the man who broke into the house as Raymond Young.
Issues One and Five
In issue one, Young argues the trial court erred in denying his motion for continuance, because the State did not produce its expert's ballistics report until five days before trial. In issue five, he contends the trial court erred in denying his motion for an independent examination of the shotgun and for additional funds for his expert. We consider issues one and five together.
In discovery motions filed in early 2007, and in letters to the trial court and the prosecutor, Young requested the results of scientific tests, including ballistics reports. The State's ballistics report, dated June 29, 2004, was not submitted to defense counsel until March 19, 2008, only five days before trial and over three years after the report was completed.
The trial began on March 24, 2008. When defense counsel requested a continuance on the trial's first day, the trial judge stated:
We can't have it both ways. We've got a motion for speedy trial, motion for speedy trial, I can't get to trial, I can't get to trial. We get to trial, and now we want a continuance. This was brought to my attention on the day of trial, and nothing has been done to bring this to my attention prior to today to try to get the Court's involvement as to any discovery dispute. With that, your motion for continuance is denied.
After the trial court denied Young's continuance motion, Young also requested an independent examination of the shotgun used in the commission of the offense and asked for additional funds for his expert.
Young argues the trial court abused its discretion in denying his continuance motion, because he did not have adequate time to examine the ballistics evidence and the report. He also asserts the trial court's refusal to grant his continuance motion, along with his motion for independent examination of the shotgun and additional funds for his expert, violated his due process rights.
Whether to grant a motion for continuance is within the sound discretion of the trial court. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.06(6) (Vernon 2006). To establish the trial court's abuse of that discretion, "an appellant must show that the denial of his motion resulted in actual prejudice." Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000) (citing Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996)).
The State contends Young did not establish harm from the trial court's failure to grant a continuance, because the defense expert, appointed by the court almost a year before trial, had sufficient time to "double-check" the State's expert's work, but failed to do so. According to the State, the defense expert's replication of the testing could have been completed in two or three hours. The State also asserts there is no indication that the testimony would have shown any different result.
There is a statutory right to discovery in criminal cases. Article 39.14(a) of the Texas Code of Criminal Procedure provides as follows:
(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.
Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon Supp. 2008). Article 39.14(a) provides for discovery of evidence that is "material to any matter involved in the action and which [is] in the possession, custody or control of the State or any of its agencies." Id.
The discovery statute is not self-executing. A defendant must file a motion, give notice to other parties, and show good cause for the discovery. Id. Only then is the trial court required to order the State to produce and permit discovery; the order is required to be specific as to time, place, and manner. Id.
Young relies on State v. LaRue, 152 S.W.3d 95 (Tex. Crim. App. 2004). There the appellant filed a motion for discovery, and the trial court granted the motion without setting a date for discovery to be accomplished. Id. at 96. Although the State had received the lab test results, the State did not turn the report over to defense counsel until the date of trial, some ten months after the discovery order. Id. Under the circumstances of that case, the Court of Criminal Appeals concluded that the State's failure to timely produce DNA was not willful. Id. at 99-100.
In this case, there is no order in the record requiring the State to produce evidence. See Johnson v. State, 172 S.W.3d 6, 18 (Tex. App.--Austin 2005, pet. ref'd) ("[A] discovery request alone, without an order or follow-up in some manner, is a hollow gesture."); Kirksey v. State, 132 S.W.3d 49, 54-55 (Tex. App.-- Beaumont 2004, no pet.) ("As there was no time, place or manner specified by the trial court for the State to respond to discovery, the prosecutor's production of the photographs immediately prior to the taking of testimony was proper."). Although the record includes the April 20, 2007, order appointing an expert for appellant and providing funds for the expert, we find no order in the record requiring the State to produce anything.
Young's motion for an independent examination of the shotgun and for additional expert funds was presented to the trial court on the first day of trial. The indictment charged Young with murder using a deadly weapon -- a firearm. Young's expert was appointed almost a year prior to trial. Young had time to obtain an order compelling discovery and permitting an examination of the firearm prior to trial.
Brady v. Maryland and its progeny also provide a right to certain discovery. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Michaelwicz v. State, 186 S.W.3d 601, 612 (Tex. App.--Austin 2006, pet. ref'd) (citing 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 22.21 (2d ed. 2001)). "To protect a criminal defendant's right to a fair trial, the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the prosecution to disclose exculpatory and impeachment evidence to the defense that is material to either guilt or punishment." Ex parte Reed, 271 S.W.3d 698, 726 (Tex. Crim. App. 2008) (footnote omitted). The prosecution's failure to comply with this duty is harmful and requires reversal and a new trial. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). However, the ballistics report in this case was not exculpatory. The report concluded that the shell casings found at the scene of the crime came from the gun submitted to the expert for testing.
Young relies on Anderson v. State, 268 S.W.3d 130 (Tex. App.--Corpus Christi-Edinburg 2008, pet. granted). There the State did not provide defense counsel with the official DNA report until the morning of trial. Id. at 132. The Thirteenth Court of Appeals recognized a due process exception to the requirement of a written motion for continuance. Id. at 133. The Court explained that inherent within the defendant's right to a meaningful opportunity to present a complete defense is the right to confront the evidence against him. Id. at 134 (citing Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986); U. S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 406-07, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)). Considering the untimely production of the DNA evidence, the court concluded Anderson was not afforded that right. Id. at 135. Further, the court concluded Anderson established specific prejudice as a result of the denial of his continuance motion, because he was unable to discuss the DNA report with the chemist, unable to effectively cross-examine the chemist, unable to conduct additional testing, and unable to obtain another expert to opine on the chemist's conclusions. Id. at 134.
In this case, the judge had already appointed an expert witness for Young and provided funds for the expert. The defendant could have sought an order that the expert be allowed to conduct forensic testing on the ballistics material and the firearm referenced in the indictment. Having been appointed earlier, the expert was available to discuss the results of the State's report when it was produced.
We conclude there was no violation of Young's due process rights and no abuse of discretion by the trial court. The ballistics report was not exculpatory; there was no order requiring production; the trial court had appointed an expert for defendant; the defendant could have requested an independent examination of ballistics evidence and the firearm before the day of trial; and defense counsel could have discussed the ballistics report with the defense expert once the State produced it. We overrule issues one and five.
Issue Two
In issue two, Young argues that the trial court erred in limiting defense counsel's cross-examination and his presentation of testimony, and that the cumulative effect of this limitation denied him a fair trial. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (Criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf.). Jurors are entitled to have the benefit of the defense before them so that they can make an informed decision regarding the weight to be given the witness's testimony, though they may ultimately reject the theory. Maxwell v. State, 48 S.W.3d 196, 199 (Tex. Crim. App. 2001) (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)). In considering a defendant's ability to present his case, there are at least two instances in which rulings excluding a defendant's evidence may violate the Constitution: a state evidentiary rule that arbitrarily, and in a way "disproportionate to the purposes [the rule] is designed to serve," prohibits the defendant from offering otherwise relevant, reliable evidence vital to his defense; and a trial court's ruling excluding otherwise relevant, reliable evidence that "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Potier v. State, 68 S.W.3d 657, 659-66 (Tex. Crim. App. 2002).
A defendant has a right to cross-examine witnesses. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000); see also Davis, 415 U.S. at 316 (The Sixth Amendment right to confront witnesses includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest, or motives in testifying.). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis, 415 U.S. at 316; see Pointer v. Texas, 380 U.S. at 404 (value of cross-examination -- exposing falsehood and bringing out the truth in the trial of a criminal case). The cross-examiner may delve into the witness's story to test his perceptions and memory and may impeach or discredit the witness. Davis, 415 U.S. at 316. Under the Sixth Amendment, the right to cross-examine a witness and the right to present evidence generally do not conflict with the "corresponding rights under state evidentiary rules." Hammer v. State, No. PD-0786-08, 2009 WL 928561, at *4 (Tex. Crim. App. Apr. 8, 2009) (not yet released for publication) (footnote omitted).
The trial court may limit the scope of cross-examination to avoid harassment, prejudice, confusion of the issues, endangerment of the witness, and the injection of cumulative or collateral evidence. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). An appellate court reviews the trial court's decision under an abuse of discretion standard. See Matchett v. State, 941 S.W.2d 922, 940 (Tex. Crim App. 1996). When the trial court acts "'without reference to any guiding rules or principles,'" an abuse of discretion occurs. State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007) (quoting Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005)). Abuse of discretion is also the standard of review in decisions regarding the presentation of the case; the trial judge has discretion in determining whether the evidence is to be admitted or excluded. See Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).
Improper limitation of cross-examination is a violation of the confrontation clauses of the federal and state constitutions. Lopez, 18 S.W.3d at 222; Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (citing Van Arsdall, 475 U.S. at 684); U.S. Const. Amend. VI; Tex. Const. art. 1, § 10. In determining whether the error was harmful, the reviewing court applies a three-pronged test. See Shelby, 819 S.W.2d at 547, 550-51; Tex. R. App. 44.2(a). First, we assume that the damaging potential of the cross-examination was fully realized. Shelby, 819 S.W.2d at 547, 550. Second, we review the error in connection with the following factors: the importance of the witness's testimony in the prosecution's case; whether the testimony was cumulative; the presence or absence of evidence supporting or conflicting with the witness's testimony on material points; the extent of cross-examination permitted; and the overall strength of the prosecution's case. Id. at 547, 550-51. Finally, in light of the first two prongs, we determine whether the error was harmless beyond a reasonable doubt. Id. at 547, 551. Here, Young presents sixteen instances in which he argues the trial court erred in either restricting cross-examination or in refusing to allow him to present certain evidence in his defense. (1)
Gabrielle Daniels, a witness for the State and a neighbor of Davis, noticed someone in a Mazda vehicle stopped in the neighborhood that night. On cross-examination, Young's trial counsel attempted to demonstrate that counsel could have fit the description of the person in the car, but the trial court sustained the State's objection to that testimony. We find no error in excluding the testimony, and even if erroneous, the exclusion was harmless. Trial counsel had already cross-examined Daniels on the inconsistency in her descriptions of the person in the car.
Dr. Tommy Brown, a forensic pathologist, performed the autopsy on Sheila Davis. Defense counsel questioned Dr. Brown on the theory of "transference" "when two human beings come into contact" and "leave a trace of the other[.]" Trial counsel asked Dr. Brown if "we were to believe that there was a struggle that took place between the suspect and Ms. Davis . . . , scientifically we would expect transference?" The State objected to the question as "assum[ing] facts not in evidence"; the trial court sustained the objection. During continued questioning by trial counsel, Brown testified to an estimated distance of four to six feet from the perpetrator's shotgun to Davis. Defense counsel then asked Brown about blood splatter at that range. Dr. Brown testified he would not necessarily expect blood splatter, but if it occurred, it would be in the direction of the shotgun blast. The record reveals that in spite of the trial court's sustaining the objection, Young's attorney continued his questioning that developed information regarding the topic of blood splatter, and also reached the concept of transference. Under the circumstances, though the trial court's ruling may have been in error, we conclude no harm resulted from the sustaining of the prosecutor's objection.
Trial counsel also questioned Dr. Brown about the valium in Davis's body at the time of the autopsy. Defense counsel asked, "And if Ms. Davis didn't have a valid prescription for this Valium . . . . [,] [t]hen she obviously got that from a drug dealer, didn't she?" The State objected as "assuming facts not in evidence." No evidence in the record suggests that Ms. Davis obtained valium from a drug dealer. The trial court did not err in sustaining the State's objection.
Referencing photographs showing blood on various areas of the floor inside the house, defense counsel asked Sue Kelly, I.D. technician for the Beaumont Police Department, if "the perpetrator would have followed Ms. Davis as this path indicated, quite logically, he would have had to step in blood?" The prosecutor objected on grounds of "[a]ssuming facts not in evidence." The trial judge sustained the objection and asked trial counsel to "[r]ephrase it." Instead, counsel chose to ask a question about evidence found in the vehicle that would allegedly link Young to the scene.
We find no harm in sustaining the objection and asking counsel to rephrase the question. Through cross-examination of Sara Moon, ID technician for the Beaumont Police Department, defense counsel established that Moon was not able to lift any footprint or shoe print from the floor of the residence. No print evidence -- either footprint or fingerprint -- linked Young to the crime. Furthermore, Young did not avail himself of the opportunity to rephrase the question.
Defense counsel cross-examined Demond Guidry, Davis's fiancee. On direct examination, the State had elicited testimony from Guidry concerning Young's repeated cell phone calls to Davis in the days before her death. Defense counsel asked if Davis had made several calls to Young during June. The trial court sustained the prosecutor's objection to the question. However, Guidry, upon being shown phone records, acknowledged that Davis made some calls to Young in June. Error, if any, was harmless.
Defense counsel also questioned Guidry concerning his feelings about the calls that Davis, his fiancee, had made to Young. Guidry indicated that at the time Davis made the calls he (Guidry) had no knowledge of them. Defense counsel then asked how Guidry felt at trial about the calls. The trial court sustained the State's relevancy objection. The trial court refused to allow trial counsel to ask Guidry whether he wanted to sue Young. The jury likely understood Guidry would feel ill-will toward the person he believed to be the perpetrator, whether he admitted that or not. We find any error in sustaining the State's objections does not require reversal of the judgment.
Demond Guidry described the struggle with the perpetrator who came through the door that night with a gun. During cross-examination, defense counsel established that the perpetrator ripped part of Guidry's shirt off. Photographs of Guidry that night after the murder showed what appeared to be minor injuries to his knee and finger. Trial counsel asked Guidy: "Now, in that injury [injury to Guidry's finger], clearly you scratched the perpetrator here in this case?" Guidry stated he was "not sure. I guess it's a possibility that I could have." Defense counsel then asked, "And it's logical to see how the perpetrator would have been injured as well?" The prosecutor objected that the question speculated on facts not in evidence; the trial court sustained the objection.
Through this line of questioning, trial counsel was attempting to challenge the identity element of the murder offense by showing that the perpetrator would have been injured by the struggle with Guidry. The limitation of cross-examination did not harm the defendant, however, because other evidence was presented that Young, when arrested, had no fresh injuries. With the description of the struggle and Guidry's injuries, the jurors were presented with evidence from which they could infer that the perpetrator may have been injured.
Young contends he was prevented from eliciting testimony from Merline Marie Woolridge (Young's sister) concerning her belief that Guidry had animosity toward Young over the relationship between Davis and Young. Upon further questioning after the trial court sustained the State's objection, however, Woolridge indicated that Guidry appeared to be visibly upset about the relationship between Davis and Young.
The trial court also sustained the State's objection to another question trial counsel posed to Woolridge regarding any concerns she had about the relationship between Guidry and Davis. The question appeared to call for speculation -- the grounds on which the State objected. Under the circumstances, we find no error in the trial court's ruling.
Young argues his ability to demonstrate the "missing links in some of the State's evidence" was hampered by the trial court's restriction of cross-examination. Defense counsel called Tammy LeBleu, a forensic analyst for the Jefferson County Crime Lab at the time of the murder, as a witness. She explained she "collected evidence at crime scenes" and processed evidence looking for body fluids, blood, semen, and trace evidence. The trial court sustained the State's objection when Young's attorney attempted to have LeBleu express her opinion as to whether it would be important to test the vehicle. The Mazda had been loaned to Young on the date of the murder by Tonye Nelson, Young's friend. After Davis's murder, Young returned the Mazda to Nelson, who turned the Mazda over to the police for scientific testing. In further testimony, the jury heard that various items of evidence including fingerprints and DNA, were submitted to the laboratory. None of the evidence listed -- whether from the murder scene, the shotgun, or Young's pickup -- linked Young to the crime, though testimony and circumstantial evidence did. The jury was capable of determining the weight or importance to be given the State's decision to not scientifically test the car for DNA, fingerprints, and other evidence. We find the error in the trial court's refusal to allow defense counsel to elicit LeBleu's testimony on the non-testing of the car does not require reversal of the judgment.
Trial counsel recalled Tonye Nelson during the presentation of the defendant's case.
Nelson had testified that Young asked to borrow Nelson's Mazda so that Young could go to Beaumont to take photographs "of what was going on at Sheila's house." Young argues the trial court improperly restricted his questioning on the issue of whether the Beaumont Police Department was involved in "processing" the Mazda. The record does not support Young's argument of a restriction on his questioning of Nelson, however. Nelson testified that the Beaumont Police Department was one of the agencies involved in the processing of the vehicle.
Young argues the trial court limited his cross-examination regarding testing of evidence. Defense counsel asked Deputy Gary Clayton, crime scene investigator with the Harris County Sheriff's Department, if law enforcement made the decision as to what tests would be done on a piece of evidence. The prosecutor objected on the ground that the question had already been asked and answered. The trial court also sustained the prosecutor's objections to a question about why the gun was not submitted for additional testing and a question asking for the name of someone with knowledge of that answer. The trial court did not err in sustaining the prosecutor's objections, because Tammy LeBleu had already testified that the Beaumont Police Department usually made the decisions regarding the evidence that would be tested. The jury was capable of giving proper weight to issues regarding further testing.
Young argues the trial court limited his cross-examination on a "critical portion" of his defense -- that there was no evidence of " blowback, blood transference, or some other trace evidence linking [him] to the [shotgun]." Trial counsel asked Deputy Clayton, "And as we sit here today, there is absolutely no scientific evidence to link that gun to Mr. Young, none?" The prosecutor objected that "[t]his has been asked and answered[,]" and the trial court sustained the objection.
The record reveals the gun was tested for fingerprints, and Young's fingerprints were not on the gun. In addition, DNA evidence on the trigger and trigger guard were submitted for testing; there was no link to Young's DNA. There was no harm in sustaining the "asked- and-answered" objection, because evidence elsewhere established there was no scientific evidence linking the gun to Young.
Young contends he was prevented from cross-examining Bradley Bruns, the firearms and ballistics expert, on the nature of gunshot residue. The State objected that this "area has been covered. It's been asked, and it's been answered." Dr. Tommy Brown had already explained blow back and blood splatter, an area encompassing the residue topic. Defense counsel then asked if Bruns was familiar with blow back, and he provided a detailed explanation as follows:
A. [Bruns] In my firearms area of expertise, blow back would be if the muzzle was close enough to the target -- let's say a person -- when it fired, there would be a little bit of a vacuum in that -- in the barrel as the pellets or the bullets passed out and if it's close enough, there could be some blood come from the victim back into the end of the muzzle of the shotgun or pistol, whatever it may be.
Q. [Defense Counsel] That's important that you say that. So at a close shot, point-blank shot, you're saying what causes blow back would be - and this is the science - the vacuum which would bring the victim's blood back onto the barrel of the gun, right?
A. Yes, sir, it could be the vacuum. It could be just the splattering or the squirting out of the blood, but that's how it generally happens.
Q. And that's at close ranges, right?
A. Yes, sir.
Given that this general subject matter was covered by Bruns and Dr. Brown, we find no harm.
Young also argues the trial court erroneously sustained the State's objection when trial counsel attempted to cross-examine Bruns to determine whether a particular area in the trigger-guard was tested for DNA. Deputy Clayton had already testified regarding the DNA testing on the trigger guard. He explained he swabbed only the trigger and trigger guard areas for DNA, because he felt they were "more prevalent for DNA[.]" He believed the other areas were "more prevalent for fingerprints." There was no harm in sustaining the prosecutor's "asked-and-answered" objection.
Young contends he was prevented from cross-examining Bruns regarding the methodology pertaining to the tracing of shotgun shell casings through the IBIS System (Integrated Ballistics Identification System). Bruns described the IBIS system, which "takes an image of that print [individual marks that firearms leave], puts it into a computer and then the computer searches our particular geographical database . . . and it searches that whole area to see if any evidence that was fired from that gun would match the one that I put in." Defense counsel then posed the example of Brazoria County (an area Bruns stated was covered by the system), and attempted to elicit information about how the process worked. The trial court sustained the prosecutor's relevancy objection. Immediately thereafter counsel was able to establish, through Bruns's responses, that the IBIS system is able to determine if any connection exists between the shell found at the crime scene and other crimes committed in other areas with that particular firearm. Bruns had already provided a detailed explanation of the IBIS and its methodology. There was no harm in sustaining the prosecutor's objection to the question about the application of IBIS in Brazoria County, because the evidence came in otherwise without objection.
Young contends the State was allowed to prevent him from demonstrating through the expert witness Bruns that "no scientific evidence linked the gun to [Young.]" However, Tammy LeBleu, forensic analyst with Jefferson County Regional Crime Lab, testified that none of the thirty-three items of scientific trace evidence submitted to the laboratory linked Young to the murder, and Deputy Clayton testified no DNA evidence or fingerprints were obtained from the shotgun.
Young further argued that he was not allowed to cross-examine Bruns about possible DNA contamination and destruction of DNA and fingerprint evidence on the gun. However, the record reflects that in response to defense counsel's questioning about contamination, Bruns acknowledged that his handling of the gun could have left his DNA and fingerprints on the evidence. We see no harm in sustaining the prosecutor's "asked-and-answered" objection, since Bruns had already acknowledged possible evidence contamination.
A key theme in Young's defense was the lack of scientific evidence linking him to the crime. Presentation of evidence and cross-examination of witnesses on that theme were important to his case, and the trial court accorded Young his right to do both. Direct evidence through the testimony of Demond Guidry linked Young to the murder; Guidry identified Young as the intruder who, armed with a shotgun, broke into the couple's home the night of the murder. Circumstantial evidence linked Young to the crime as well: Nelson loaned Young his car; Young put in the car a shotgun case that appeared to have a gun in it; Young told Nelson he was going to use the car to go to Davis's residence to take pictures of what was going on there; the shotgun used to commit the murder was found behind the dumpster of the apartment complex of a woman whom Young visited after the murder; Young told Nelson he paid someone to kill Davis; Young asked Nelson to provide an alibi for him; and Gabrielle Daniels, Davis's neighbor, identified a photograph of Nelson's car as being the one stopped on their street the night of the murder. Given the direct and circumstantial evidence supporting the jury's verdict, we conclude beyond a reasonable doubt that even if the trial court erred when the court precluded Young from presenting evidence or cross-examining witnesses, any error, singularly or cumulatively, did not contribute to Young's conviction. See Shelby, 819 S.W.2d at 547-51 (citing Van Arsdall, 475 U.S. at 684); see also Murphy v. State, 112 S.W.3d 592, 607 (Tex. Crim. App. 2003) (When the court finds little or no error in various points alleging constitutional violations denying due process of law, "there is no harm or not enough harm to accumulate."). We overrule Young's second issue.
Issue Three
In issue three, Young argues the trial court "erred in allowing a State's witness to speculate as to what [Young] told his trial counsel thereby invading the attorney-client privilege and abrogating his Sixth Amendment right to counsel." Demond Guidry testified that after he saw the intruder's shotgun, he "fell against the door" to close it. On cross-examination, trial counsel asked Guidry if the perpetrator had on gloves. Guidry answered "[n]ot to my knowledge," but he could not say for sure. Trial counsel stated, "Not to your knowedge, no gloves." Young's trial counsel sought to establish that, without gloves on, the perpetrator would have sustained some injury when the door was closed on his hand, but Young had no discernible injuries. On redirect examination, the prosecutor remarked that Young's counsel seemed confident the perpetrator was not wearing gloves. The following exchange occurred:
Q. [Prosecutor]: And defense counsel was talking to you about the gloves and you said you weren't sure if the man had gloves on or not: is that right?
A. [Demond Guidry]: Yes, sir.
Q. Defense counsel seemed awful confident though that the defendant was not wearing gloves.
[Defense Counsel]: Your Honor, I'm going to object to the sidebar.
[The Court]: That's sustained. Rephrase it.
Q. The question to you was that he was not wearing gloves somewhat with confidence, that he was not wearing gloves. Do you have any idea why the defense lawyer dis-
[Defense Counsel]: Your Honor, again, sidebar and there is also speculation and irrelevant.
[The Court]: It's overruled.
Q. Any idea why the defense lawyer would be so confident why [the perpetrator] didn't have gloves?
A. Maybe because his client told him he didn't have none.
Based on this exchange, Young asserts the following: his trial counsel's question about gloves did not suggest anything about counsel's confidence that gloves were not worn; it was speculative for the State's witness to guess as to why defense counsel would ask any question about gloves; Young had an absolute Fifth Amendment privilege not to testify as to what he told his attorney; and Guidry's testimony amounted to a violation of Young's Sixth Amendment right to counsel.
The State argues appellant did not timely object to the testimony and waived any error. Defense counsel first objected on the grounds of a "sidebar" remark; the trial court sustained that objection and asked that the question be rephrased. The prosecutor rephrased the question, and trial counsel then objected on the grounds of sidebar, speculation, and relevance. There were no objections on grounds relating to the Fifth Amendment, Sixth Amendment, or rules 503, 701, or 704 of Texas Rules of Evidence. Any complaints on those grounds were waived. See Tex. R. App. 33.1(a); Tex. R. Evid. 503, 701, 704.
Young preserved his complaint that the testimony was based on speculation. We review a trial court's discretion to admit evidence under an abuse-of-discretion standard. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). We do not reverse that decision absent a clear abuse of discretion. Id. When the decision lies outside the zone of reasonable disagreement, the trial court abuses its discretion in admitting evidence. Id. The prosecutor's question asking Demond Guidry why appellant counsel was so confident that Young did not have on gloves called for speculation. The question was objectionable and Guidry's answer was inadmissible. The trial court erred in overruling the objection.
The jury could reasonably have inferred that a door forcefully closed on an ungloved hand would have left some kind of injury, and there was no evidence Young sustained any injury to his hand. We believe, however, the error in allowing Guidry to speculate on "why the defense lawyer would be so confident why he [Young] didn't have [on] gloves" would have had but slight effect. We conclude based on a review of the entire record the trial court's error in admitting the objectionable portion of Guidry's answer did not have a substantial and injurious effect or influence on the jury in reaching its verdict. We therefore overrule issue three.
Issue Four
In issue four, Young argues the trial court erred in restricting his argument urging the jury to hold the State to its burden of proof beyond a reasonable doubt.
Trial counsel argued as follows to the jury:
[Defense Counsel]: In these instructions, the Judge said your verdict must be unanimous after hearing the evidence in this particular case. [The prosecutor] talked about justice, in the name of justice, if you don't believe they met their burden, I ask you in fairness and in justice to say I will not vote for guilty for Mr. Young. Hold out. Hold to your convictions - -
[Prosecutor]: I'm going to object that that's an improper argument.
[The Court]: That's sustained, and your time is up. Mr. [Prosecutor], you will have 20 minutes. I'll give you a 2-minute warning and a 1-minute warning.
Young contends that by sustaining the State's objection, "the trial court instructed each individual juror that it was authorized to convict appellant on proof which failed to remove all reasonable doubt, or less than a unanimous verdict, which is less of a burden than that which is constitutionally required." Young asserts his trial counsel's argument followed the law, and the trial court committed reversible error in contravening the charge when it sustained the State's objection.
Young and the State interpret trial counsel's jury argument differently. The State interprets the argument as asking the jury to resist proper deliberation and consideration of the evidence. In contrast, Young argues he was asking the jury to hold the State to its burden of proof. The trial court apparently agreed with the State's interpretation, because the objection was sustained.
Though the trial court erred in sustaining the objection, we do not find the error was harmful. The jury charge properly instructed the jury as follows:
Now if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about the 16th day of June, Two Thousand and Four, and anterior to the presentment of this indictment, in the County of Jefferson and State of Texas the defendant Raymond Young, did then and there intentionally or knowingly, acting alone or as a party, as that term has been defined, cause the death of an individual, namely: SH[EIL]A MARIE DAVIS, hereafter styled the Complainant, by shooting Complainant with a deadly weapon, to-wit: a firearm, then you should find the defendant GUILTY of Murder as alleged in the indictment.
The charge further stated in "general instructions" as follows:
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant[']s guilt, after careful and impartial consideration of all the evidence in the case.
The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.
It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all "reasonable doubt" concerning the defendant's guilt.
Young relies in part on Young v. State, which held that "[s]ubmission to the jury . . . of an instruction that an 'abiding belief' in defendant's guilt would require a guilty verdict, was tantamount to authorization of conviction on less than proof beyond reasonable doubt[,]" and was reversibly erroneous. Young, 648 S.W.2d 2, 3 (Tex. Crim. App. 1983). In Young, the charge submitted to the jury was incorrect because it required a lesser burden of proof. Id.
The trial court submitted to the jury a substantially correct jury charge. In its instructions, the trial court's charge stated there was a presumption of innocence and the burden of proof was beyond a reasonable doubt. The application paragraph also stated the beyond-a-reasonable-doubt burden of proof. We find no harm in the trial court's sustaining the State's objection to Young's jury argument. We overrule issue four.
The judgment is affirmed.
AFFIRMED.
DAVID GAULTNEY
Justice
Submitted on May 14, 2009
Opinion Delivered October 14, 2009
Do Not Publish
Before Gaultney, Kreger, and Horton, JJ.
1. Young also appears to argue the trial court treated his objections differently from
those of the prosecutor. Young references three places in the record where he asserts he
made identical objections -- overruled by the trial court -- to similar testimony. He does not
present argument or case-law explaining how the particular objections and rulings are
reversible error.