NO. 12-02-00178-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KERRY LEE MIMS, ' APPEAL FROM THE 372ND
APPELLANT
V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE ' TARRANT COUNTY, TEXAS
MEMORANDUM OPINION
Kerry Lee Mims (AAppellant@) was indicted for capital murder. A jury convicted Appellant of murder and assessed his punishment at imprisonment for life. Appellant raises five issues on appeal. We affirm.
Background
Carlos Menendez (AMenendez@) and his wife, Sophia Garcia (AGarcia@), operated a Alunchette@ from their large utility van, selling Mexican food and fruit to local residents. On the evening of August 14, 1999, they were on the parking lot of the Ballpark Apartments in north Arlington where they were closing their business for the day. Menendez was standing near the driver=s seat holding an unknown amount of cash when Appellant suddenly entered the van, pointed a pistol at Menendez, and said, AGive me the money, m_____f___er.@ Appellant then shot Menendez and both men fell out of the van beside the door. According to Garcia, the assailant was a black man who shot her husband with a small silver pistol that he held in his right hand. Another black man was standing outside the truck, but Garcia saw him only as he was picking up money from the ground. Garcia recalled that the two men grabbed the money and ran. The gunshot perforated Menendez=s aorta and lacerated both his lungs. He died at the scene.
Later that evening, the police detained an individual and asked Garcia to attempt to identify him. She told the police that the suspect was not the assailant. On August 17, 1999, two Crime Stopper tips provided information to the Arlington police that the possible assailant was a person named AKerry White@ who lived at the La Jolla Apartments. Arlington detectives went to the apartments to attempt to locate AKerry White@ (AAppellant@). There, Detective Byron Stewart (ADetective Stewart@) spoke to Nathan Pickrom (APickrom@) who allegedly told him that Appellant had bragged about killing the Mexican man on Peach Street. Detective Stewart notified Detective John Stanton (ADetective Stanton@) who searched their computer systems for information on the suspect. As a result, Detective Stanton obtained a description of Appellant=s vehicle and issued a BOLO (Abe on the lookout@) for his car. The police subsequently located the car, which was being driven by Appellant=s friend, Bobby Stewart (AStewart@). Information from Stewart led to Appellant who was hiding on the roof of Stewart=s apartment. Appellant was arrested and agreed to an interview. Upon his arrival at the Arlington jail, Appellant waived his rights and told Detective Stanton that he had gone to a club with friends on the night of August 14. Appellant=s friends could not confirm this information, and Appellant was not eliminated as a suspect.
On the day of Appellant=s arrest, Garcia was shown a photospread that included Appellant=s picture. Garcia picked Appellant from the photospread and said that she was seventy per cent certain Appellant was Menendez=s assailant. However, Garcia was not absolutely sure and asked for a live lineup. This lineup was performed the next day, and Garcia picked Appellant from the live lineup stating that she was Avery certain.@ The lineup consisted of subjects ranging in age from 18 to 39 and weighing between 143 and 190 pounds. The subjects were seated during the lineup because of their height variances.
Soon after the completion of the live lineup, Detective Stanton asked that Appellant be brought to the interview room where he once again advised Appellant of his rights. Detective Stanton told Appellant that he had been positively identified, that he knew Appellant had not been honest with him, and that there was sufficient evidence to file a capital murder charge in the case. Once again, Appellant denied any involvement in Menendez=s death.
Detective Stanton received a phone message on August 23, 2002, indicating that Appellant wanted to speak to him. Detective Stanton went to the jail and once again advised Appellant of his rights. Appellant gave a written statement admitting that he participated in the robbery.
Appellant was indicted for capital murder. The indictment contained a deadly weapon notice and enhancement paragraphs alleging two prior felony convictions. Appellant pleaded Anot guilty@ to the capital murder charge and Anot true@ to the enhancement paragraphs of the indictment. Prior to trial, Appellant filed a motion to suppress his oral and written statements and a motion to suppress the identification. After a hearing, the court overruled Appellant=s motions, and the matter proceeded to a jury trial.
After three days of testimony, the jury convicted Appellant of the lesser-included offense of murder. At the conclusion of the punishment phase, the jury found both enhancement paragraphs true and assessed Appellant=s punishment at imprisonment for life. The trial court entered judgment in accordance with the jury=s verdict. This appeal followed.
Eyewitness Identification
In his first issue, Appellant asserts that the trial court abused its discretion by excluding the proffered testimony of Dr. Mary Connell (ADr. Connell@), an expert in eyewitness identification issues. The State counters that Appellant failed to prove Dr. Connell=s testimony was based upon a valid application of a valid scientific principle and that Dr. Connell failed to consider enough pertinent facts for her opinion to be helpful to the jury.
During Appellant=s case in chief, Appellant=s trial counsel notified the court that they intended to call Dr. Connell ,a psychologist, to testify about factors that would affect the accuracy of Garcia=s identification of Appellant as Menendez=s assailant. The trial court held a Daubert[1] hearing to determine the admissibility of Dr. Connell=s testimony.
At the hearing, Dr. Connell testified that she is board certified in forensic psychology. She has been in private practice in the area of psychology since 1980. Less than one-tenth of her practice has involved pure eyewitness identification. She has written one article on the subject, which has not been published or peer-reviewed. She testified that she has done no research on the reliability factors about which she proposed to testify and has not been associated with any group conducting research on the factors. She has been retained six times in the past to testify about the reliability of eyewitness testimony. She stated that she reviewed the testimonies of Garcia and Detective Stanton from the suppression hearing, the photo array photographs, the photos from the live lineup, and photographs of the crime scene.
Dr. Connell also reviewed approximately twenty-five articles on eyewitness identification. During direct examination, she discussed treatises, studies, research, and general areas of methodology. She emphasized a seminal article referred to as the AWhite Paper.@ See Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law and Human Behavior 6 (1998). She testified that this article was endorsed by the American Psychology and Law Society as its position paper. She also said that the article Arefers to there being a body of literature numbering something like 2000 articles in the past twenty-five years in peer review mainstream journal[s] on the science of eyewitness reliability issues or eyewitness and lineup instruction.@ In addition to the White Paper, Dr. Connell relied on a 1999 United States Department of Justice (ADOJ@) publication entitled AEyewitness Evidence, a Guide for Law Enforcement.@ This publication contains the DOJ guidelines for eyewitness identification procedures. Neither document includes information that speaks directly to the issue of reliability. Both are general treatises and contain discussions of recommended methodologies.
Dr. Connell named a number of psychologists who are recognized researchers in the field and who have published peer-reviewed articles about eyewitness identification. She also testified that the reliability of eyewitness identification is accepted within the scientific community. She stated that the researchers have agreed upon fifteen or so major tenets of the body of eyewitness research at or over eighty percent and that for some tenets as many as ninety-six or ninety-seven percent of the researchers are in agreement. She also stated that the research and scientific theory are widely accepted in the field of psychology.
Dr. Connell=s proposed testimony would cover cross-racial identification and, to some extent, weapon focus. She also intended to discuss several matters relating to the ideal structure and manner of conducting the lineup and photo array. Specifically, Dr. Connell would examine the method used in the photo array and lineup in this case in which Garcia identified Appellant as the man who robbed and shot her husband on the evening of August 14, 1999. She also planned to testify about how variations in the process can affect witness correctness. However, she would not offer an opinion about the correctness of Garcia=s identification. She also did not plan to testify that the photo array was done improperly or inaccurately in this particular case.
In explaining her opinion about the lineup and photo array in the case before us, Dr. Connell testified that
I do have some . . . concerns that I will want to raise about some of the variability in people in the live lineup, the weight range from 145 to 220 pounds, and the age range from 18 to 39, for example, and that it might be very easy for a mock witness, a person who didn=t view the suspect at the time of the crime, to pick No. 2 from the live lineup based simply on the witness=s written description, the witness description that was reported by the police officer at the scene.
...[T]he photo array by itself appeared to me to have been done with attention to most of the details that have been identified in the literature as important, exceptions being that the person administering it was apparently the lead investigator and that we can=t know since it wasn=t recorded whether any cues may have been given to the witness.
And the witness B neither the witness nor Detective Stanton has testified or indicated that he gave her the explicit instruction that the culprit might not be present in the photo array.
And so that would be a concern that would be important for me to articulate.
Dr. Connell admitted that in formulating her opinion, she did not take into account Appellant=s written confession. Moreover, she did not have an article dealing with the accuracy of eyewitness identification when the suspect perpetrator also confessed. Furthermore, she testified that she knew of only one case included in the White Paper where both eyewitness testimony and a confession turned out to be incorrect. She acknowledged that her proposed testimony was based upon the research and peer-reviewed articles of others, as well as her own practical application in her profession. Dr. Connell also testified that the literature indicates that factfinders tend to mistakenly ascribe a high degree of relationship between witness certainty and witness accuracy. Consequently, she believed the jury would benefit from the information she would provide.
After the hearing, the trial court found that Appellant failed to carry his burden by clear and convincing evidence that the proffered evidence was sufficiently relevant and reliable to assist the jury.
Standard of Review
We review the trial court=s decision to admit or exclude expert testimony under an abuse of discretion standard. Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992). An abuse of discretion occurs when the trial court acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). However, if the trial court=s decision to admit or exclude the expert testimony is Awithin the zone of reasonable disagreement,@ it does not abuse its discretion. See Kelly, 824 S.W.2d at 574; Montgomery, 810 S.W.2d at 391 (op. on reh=g). In determining whether a trial court abused its discretion, we review the trial court=s ruling in light of what was before the trial court at the time the ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998).
Applicable Law and Analysis
The admissibility of expert testimony is governed by rule 702 of the Texas Rules of Evidence, which provides that
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Tex. R. Evid. 702. Under Rule 702, the proponent of scientific evidence must show, by clear and convincing proof, that the evidence he is proffering is sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or in determining a fact in issue. Kelly, 824 S.W.2d at 573.
The reliability of Asoft@ science evidence, such as Dr. Connell=s testimony, may be established by showing that (1) the field of expertise involved is a legitimate one, (2) the subject matter of the expert=s testimony is within the scope of that field, and (3) the expert=s testimony properly relies upon or utilizes the principles involved in that field. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998). These questions are merely an appropriately tailored translation of the factors used to determine the reliability of hard sciences.[2]
Reliability
In Nenno, the State=s expert witness was allowed to testify, over the defendant=s objection, about the defendant=s future dangerousness. The appellant contended at trial and on appeal that the State had not met its burden to show that the expert=s testimony was reliable. Id. at 560. The court of criminal appeals disagreed. Id. at 562. In its analysis, the court recognized that the reliability requirement Aapplies [to the soft sciences] but with less rigor than to the hard sciences.@ Id. at 561. Furthermore, the hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences. Id. However, the court expressly declined to rule out employing these factors in a proper case. Id. n.9.
Applying the Asoft@ science criteria, the court held that the expert=s testimony was sufficiently reliable, partly because the expert had extensive experience in studying and analyzing cases concerning the issue of future dangerousness. Id. at 562. Although the appellant complained of the absence of any peer review, the court stated that this affected the weight of the evidence rather than the reliability. Id.
The distinction between the standard of admissibility for Ahard@ science versus that for Asoft@ science was revisited by the court of criminal appeals in Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000). The issue in Weatherred was whether the court of appeals erred in holding the trial court=s exclusion of expert testimony on the lack of reliability of eyewitness testimony was an abuse of discretion. The court of criminal appeals applied the Nenno standard of reliability for Asoft@ science. Id. at 542.
Reviewing the expert testimony proffered in the trial court, the court determined that the proffer was lacking. To carry its Aconsiderable burden@ in the trial court, the defendant had offered the expert=s testimony, but nothing else. Id. Furthermore, despite the expert=s claim that he and others had carried out extensive research on the reliability of eyewitness identification and that he himself had written much on that subject, he failed to produce or even name any of the studies, researchers, or writings in question. Id. at 542-43. The trial court did not state its reason for excluding the testimony. Id. at 543. However, the court of criminal appeals concluded that based upon what the trial court had before it at the time it ruled, it could have reasonably concluded that Appellant failed to carry his burden of showing that the proffered expert testimony was scientifically reliable. Id. (citing Jordan v. State, 950 S.W.2d 210, 212 (Tex. App.BFort Worth 1997, pet. ref=d)) (emphasis in original). Thus, the court of criminal appeals reversed the court of appeals= holding that the trial court had abused its discretion in excluding the expert testimony. Id.
In our review of Dr. Connell=s testimony, we note that, unlike the expert in Nenno, Dr. Connell had done no research in the area of eyewitness identification. She had written only one article, which had not been published or peer-reviewed. Her professional experience was in dealing with child custody and family issues. Less than one-tenth of her practice involved eyewitness identification. She could think of Aprobably six@ cases where she had testified regarding the reliability of eyewitness testimony, but could not name those cases. She could recall only one case that involved testimony before a jury. Similar to the expert in Weatherred, Dr. Connell testified that she relied on twenty-five articles, but submitted only two; the White Paper, and the United States Department of Justice Guidelines. Neither of those documents contains information about underlying scientific studies or evidence of their validity. Moreover, Dr. Connell testified that extensive research had been conducted by others in the area, but did not discuss the specifics of the studies and research underlying the tenets on which she would rely. Therefore, we agree with the State that based upon the record before it, the trial court could have reasonably concluded that Appellant failed to carry his burden of showing that the proffered testimony was scientifically reliable.
Relevance
Even when a theory or methodology satisfies the Ascientific knowledge@ requirement, in order to be admissible, expert testimony also must Aassist the trier of fact to understand or determine a fact in issue.@ Tex. R. Evid. 702. Stated another way, to be admissible under rule 702, expert testimony must be both relevant and reliable. Kelly, 824 S.W.2d at 572. As applied to expert testimony, rule 702 requires that the expert witness tie or relate the pertinent facts of the case to the subject of her testimony. Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996).
In this case, Dr. Connell=s opinions failed to take into account enough pertinent facts to be of assistance to the jury. Dr. Connell did not factor in the effect of Appellant=s voluntary, written confession admitting that he shot Menendez. Furthermore, the focus of Dr. Connell=s testimony was on the reliability of the live lineup procedure, and she does not appear to have taken into account testimony that, prior to the live lineup, Garcia picked Appellant out of the photospread with seventy percent certainty. Dr. Connell=s stated grounds for testifying did not include an opinion that the reliability of the identification at the live lineup affected Garcia=s unequivocal in-court identification of Appellant.
Much of Dr. Connell=s testimony focuses on matters that do not require expert testimony. For example, her concerns about the variability in the live lineup participants, whether there were things that might obscure the opportunity to view the culprit, and whether Garcia identified Appellant in the live lineup based upon seeing him in the photospread were brought out before the jury with other witnesses. Additionally, Detective Stanton admitted that the live lineup was not ideal. Such matters were easily understood by the jury without expert testimony. A number of these issues relate to Garcia=s credibility, which is a matter within the jury=s province and not a proper area for expert opinion. Therefore, based upon the record at the time of its ruling, the trial court could have reasonably concluded that Appellant did not meet his burden to show that Dr. Connell=s testimony was relevant.
Because the trial court could have reasonably concluded that Dr. Connell=s testimony was not reliable or relevant, the trial court did not abuse its discretion in excluding the testimony. Accordingly, Appellant=s first issue is overruled.
Voluntary Conduct
In his second issue, Appellant contends that the trial court erred by failing to instruct the jury on the legal requirement of voluntary conduct. The State argues that there was no evidence Appellant=s conduct was involuntary.
Applicable Law
Section 6.01(a) of the Texas Penal Code provides that Aa person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. A Tex. Pen. Code Ann. ' 6.01(a) (Vernon 2003). Voluntariness within the meaning of section 6.01(a) refers only to one=s own physical bodily movements. See Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003); Brown v. State, 89 S.W.3d 630, 633 (Tex. Crim. App. 2002). If a physical movement is the nonvolitional result of someone else=s act, is set in motion by some independent nonhuman force, is caused by a physical reflex or convulsion, or is the product of unconsciousness, hypnosis or other nonvolitional impetus, that movement is not voluntary. See Rogers, 105 S.W.3d at 638.
Conduct is not rendered involuntary merely because an accused does not intend the result of his conduct. See Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993). If the accused engages in a voluntary act and has the requisite mental state, his conduct is not rendered involuntary simply because the conduct also included an involuntary act or because the accused did not intend the result of his conduct. See Cruz v. State, 838 S.W.2d 682, 686 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d); Owens v. State, 786 S.W.2d 805, 809 (Tex. App.CFort Worth 1990, pet. ref=d). Furthermore, the Avoluntary act@ requirement does not necessarily go to the ultimate act (e.g., pulling the trigger), but means only that criminal responsibility for the harm must include an act that is voluntary (e.g., pointing the gun). See Rogers, 105 S.W.3d at 638.
A lack of voluntary conduct is a defense on which, if the issue is raised by the evidence, the defendant is entitled to an instruction. See Brown v. State, 955 S.W.2d 276, 279-80 (Tex. Crim. App. 1997). If there is any evidence, whether it is strong, feeble, unimpeached, or contradicted, which indicates that a shooting was the result of involuntary conduct, a trial court must give a voluntary conduct instruction. See id. at 279. Where the evidence shows an involuntary act that is merely a part of the overall voluntary conduct, the trial court is correct in refusing a requested charge on voluntary conduct. See Owens, 786 S.W.2d at 809.
Analysis
During the guilt-innocence phase of the trial, the State introduced Appellant=s written statement in which he stated the following:
Then the Mexican guy grabbed onto me, and I am not going to lie about it, I shot the guy with the pistol. I did not mean for it to happen, but the guy grabbed onto my hand and the gun went off. . . . When I shot the man, I was still struggling with him. We wind up tumbling out of the door and I hit my right arm against something in the van and cut my arm. That was about the time that the gun had gone off.
Detective Stanton testified that Garcia said at the scene that Appellant fired once after Menendez tried to shove him. Officer J. R. Stephenson testified that there Amay have been a struggle over something at the vehicle and a single shot.@ Finally, Garcia testified that she saw Aphysical contact@ between Menendez and Appellant at about the time of the shot. Appellant contends that this evidence amounts to at least some evidence that the shooting was the result of involuntary conduct.
We disagree.
Appellant seems to assert that he did not intend to shoot Menendez during the robbery. In support of his argument, he points to the evidence that he and Menendez struggled over the gun immediately prior to the shooting. However, this evidence did not entitle Appellant to a voluntariness instruction. Appellant created the situation leading to the shooting. He voluntarily entered Menendez=s van, demanded Menendez=s money, and pointed the gun at Menendez. The fact that Appellant did not intend to engage in a struggle with Menendez does not render involuntary the struggle or any of Appellant=s bodily movements during the struggle. See Adanandus, 866 S.W.2d 230. Moreover, evidence that an accused did not intend for the gun to discharge, that the gun just Awent off,@ or that it was an accident does not sufficiently raise the issue of involuntary conduct. See Richardson v. State, 816 S.W.2d 849, 851 (Tex. App.BFort Worth 1991, no pet.); Owens, 786 S.W.2d at 810.
There is no evidence that Appellant=s act of shooting and killing Menendez was involuntary. Therefore, Appellant was not entitled to an instruction on voluntary conduct. Appellant=s second issue is overruled.
Voluntariness of Appellant=s Written Statement
In Appellant=s third issue, he contends the trial court erred by overruling his request for an instruction in the jury charge that the jury could not consider his written statement unless it believed that the statement was made free of duress and coercion. The State responds that there was no evidence that Appellant=s confession was the product of duress or coercion.
Applicable Law
The Texas Code of Criminal Procedure provides that A[a] statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion....@ Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). When the evidence raises a fact issue as to compulsion or persuasion in obtaining a confession, a defendant has a statutory right to have the jury charged accordingly. See Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002). The only question is whether, under the facts of the particular case, the defendant raised the issue by the evidence, thus requiring the jury instruction. An instruction under article 38.23 directs a jury to disregard evidence if it resolves, in a defendant=s favor, a factual dispute concerning the manner in which the evidence is obtained. Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986); see also Tex. Code Crim. Proc. Ann. 38.23(a) (Vernon Supp. 2004). However, a trial court is required to include an article 38.23 instruction in the jury charge only if there is a factual dispute as to how the confession was obtained. See Balentine v. State, 71 S.W.3d 763, 773-74 (Tex. Crim. App. 2002); Thomas, 723 S.W.2d at 707.
Analysis
Appellant did not testify at trial. Moreover, the testimony concerning the various interviews and the method of taking Appellant=s written statement is undisputed. Therefore, Appellant was not entitled to a 38.23 instruction. See Balentine, 71 S.W.3d at 774; Thomas, 723 S.W.2d at 707. Nevertheless, Appellant contends in his brief that the following evidence raises a fact issue as to whether the statement was the product of compulsion or persuasion:
1. Appellant was interrogated three times by the Arlington police. The third interview resulted in the written statement.
2. The interrogations were in a Astark and small@ room with no video equipment available.
3. Appellant denied participation in the shooting in the first interview. The detectives advised him of the seriousness of a capital murder charge.
4. During the second interview, the detective explained the difference between murder and capital murder and advised him that the death penalty was an option. Appellant was upset by this explanation.
5. Detective Stanton was alone with Appellant during the third interview and drew certain diagrams for Appellant of the scene. The argument of Appellant was that this was suggestive of what the detective wanted Appellant to include in his statement.
6. The statement Appellant made at the third interview was not written by Appellant, but was taped by Stanton.
We first note that in his discussion of this issue, Appellant merely states that A[r]egardless of the relative strength of this evidence, it certainly raised a fact issue as to whether Appellant=s statement was the product of compulsion or persuasion.@ Appellant does not further develop this argument. Specifically, he fails to address the import of the uncontroverted evidence that (1) Appellant requested the third interview and communicated his request by a telephone call to Detective Stanton, (2) the detectives= explanation of the difference between capital murder and murder and their statement that the death penalty was a possible punishment in the case was prompted by Appellant=s comment that he did not understand why he was charged with capital murder, and (3) Detective Stanton drew the crime scene diagram and asked Appellant to use the diagram as a visual aid after Appellant admitted that he shot Menendez. Therefore, he presents only a conclusory statement for our consideration. Conclusory statements unsupported by argument or authority are inadequately briefed and thus are waived. Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d). Even if the issue had not been waived, however, Appellant has not shown that the trial court=s denial of the requested jury instruction was error.
There is no evidence in this case of any type of practice that can be described as inherently coercive. The facts pointed out by Appellant in his brief fail to show official coercive conduct of such a nature that his statement was unlikely to have been the product of his own free will. To the contrary, the undisputed evidence is that Appellant requested the third meeting with Detective Stanton, was advised of his rights as he had been on prior occasions, and immediately began incriminating himself. Therefore, the trial court did not err in denying Appellant=s requested jury instruction concerning the voluntariness of his written police statement. Accordingly, Appellant=s third issue is overruled.
Admission of Secondhand Hearsay
Appellant asserts in his fourth issue that the trial court abused its discretion by allowing the State to elicit secondhand hearsay concerning an alleged confession he made to a third party. The State argues that Appellant has waived this complaint by failing to request a limiting instruction.
The Evidence
On August 17, 1999, the police received a Crime Stoppers tip indicating that a possible assailant in the case was a person named AKerry White@ and that he lived at the La Jolla Apartments. Pickrom testified that he spoke to Detective Stewart on August 18, 1999 at the La Jolla Apartments. However, he also testified that he did not remember what, if anything, he told Detective Stewart about Appellant=s alleged involvement in the shooting. Further, Pickrom testified that Appellant never stated to Pickrom that he shot Menendez and never told Pickrom that he shot anybody. During Detective Stewart=s testimony, the court conducted a hearing to determine if Detective Stewart would be allowed to testify about statements Pickrom allegedly made to him. During the hearing outside the presence of the jury, Detective Stewart testified that Pickrom told him that Appellant Awas responsible for the killing@ and that Appellant made Asome admission regarding the killing.@ Defense counsel objected that this was improper impeachment. The prosecutor then withdrew the question. However, the lead detective, Detective Stanton, was later allowed to testify, over objection, to the contents of the conversation between Pickrom and Detective Stewart. Specifically, Detective Stanton testified that A[Pickrom] told Detective Stewart that [Appellant] had been bragging about having killed a Mexican guy over on Peach Street.@ In short, Detective Stanton was allowed to testify about a conversation which he obviously did not hear himself.
Standard of Review and Applicable Law
The admission of evidence is a matter within the trial court=s discretion. See Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d). Therefore, the trial court=s admission of evidence is reviewed under an abuse-of-discretion standard. See id. As long as the trial court=s ruling is within the Azone of reasonable disagreement,@ there is no abuse of discretion, and the reviewing court must uphold the trial court=s ruling. Id.
Hearsay is Aa statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.@ Tex. R. Evid. 801(d). Hearsay is not admissible, absent a rule-based or statutory exception to the hearsay rule. Tex. R. Evid. 802.
The testimony complained of in this case consists of two levels of hearsay. In the first level, Pickrom is the declarant whose out-of-court statement to Detective Stewart was being offered with no limitation by the State and was thus being offered for the truth of the matter asserted. In the second level, Detective Stewart is the declarant whose out-of-court statement to Detective Stanton was being offered with no limitation by the State and was thus offered for the truth of the matter asserted. In this type of double hearsay situation, the evidence is admissible only if each part of the combined statement is covered by an exception to the hearsay rule. Tex. R. Evid. 805.
Appellant contends that the court abused its discretion by allowing the double hearsay testimony. He also contends that he was harmed by the error because the improperly admitted evidence Aeffectively gutted@ his argument at trial that his written statement was coerced. In other words, it was much easier for the jury to believe that the written statement was made free of coercion when they heard that he had made admissions to people on the street. Consequently, Appellant contends, this error had a substantial and injurious effect on the jury=s verdict. Appellant did not request a limiting instruction which could have prevented the jury from considering Pickrom=s statement for the truth of the matter asserted. Because Appellant failed to request a limiting instruction, which could have cured any error in admitting the testimony at issue, Appellant cannot complain of the error, if any, on appeal. See Hunt v. State, 904 S.W.2d 813, 817 (Tex. App.CFort Worth 1995, pet. ref=d).
The State also argues that even if the issue were properly preserved for review, the testimony was not hearsay because it was offered to show a link in the investigation. In support of its argument, the State cites Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992). In Jones, the arresting officer testified during the guilt-innocence phase of the trial that after listening to another officer question a witness, he began to suspect Jones as the actor in the murder he was investigating. He then had an arrest warrant issued for Jones. The State points out that the statement in Jones was not introduced for the truth of the matter asserted, but to explain how the officer came to suspect Jones in the murder. The court of criminal appeals reached the same conclusion. However, the statement made by Pickrom to Detective Stewart and ultimately recounted by Detective Stanton in front of the jury cannot be characterized as analogous to the statement in Jones. Therefore, we will assume error and conduct a harm analysis.
Violation of an evidentiary rule that results in the erroneous admission of evidence is treated as nonconstitutional error. Hankton v. State, 23 S.W.3d 540, 548 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d). A nonconstitutional error must be disregarded unless it affects a substantial right. Tex. R. App. P. 44.2(b). A substantial right is not affected unless the error had a Asubstantial and injurious effect or influence in determining the jury=s verdict.@ King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
The court of criminal appeals has determined that substantial rights are not affected by the erroneous admission of evidence Aif the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.@ Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In assessing the likelihood that the jury=s decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury=s consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Id. The reviewing court may also consider the jury instructions, the State=s theory and any defensive theories, closing arguments, and even voir dire, if applicable. Id. Whether the State emphasized the error can also be a factor. Id.
The evidence before the jury in this case included Appellant=s written confession as well as Garcia=s identification of Appellant in the photospread, in the live lineup, and in court. The jury heard that Appellant gave the detectives a false alibi and was hiding on the roof of his friend=s apartment when law enforcement wanted to question him about the murder. This indicates a consciousness of guilt that could be considered affirmative evidence of Appellant=s culpability in Menendez=s death. See Huffman v. State, 775 S.W.2d 653, 660 (Tex. App.BEl Paso 1989, pet. ref=d); Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994). Appellant points out that the State emphasized the testimony by telling the jury during closing argument at guilt-innocence that Detective Stewart had Averification from Nate Pickrom that Kerry Mims did it....@ However, based upon our review of the record as a whole, we conclude that this reference had only a slight effect, if any, compared to the evidence indicating Appellant=s guilt. Consequently, we conclude that even absent waiver, the trial court=s error in admitting Detective Stanton=s statement did not have a substantial and injurious effect or influence on the jury=s verdict. Therefore, the error must be disregarded because it did not affect a substantial right. Appellant=s fourth issue is overruled.
State=s Final Argument at Punishment
In his fifth and final issue on appeal, Appellant asserts that the trial court erred by allowing the State, during closing argument at the punishment phase, to castigate the jury concerning its guilt-innocence verdict. The State asserts that the argument was a proper plea for law enforcement and a response to opposing counsel=s argument or, alternatively, that if error occurred, it must be disregarded because it did not affect a substantial right.
During the guilt-innocence phase, the State asked the jury to convict Appellant of the charged offense of capital murder. The jury convicted Appellant of the lesser offense of felony murder, an unintentional crime. During the final argument at the punishment phase, the prosecutor made the following statements:
[PROSECUTOR]: Last Friday when I talked to you, I opened my argument and I said this is a simple case. Either you=ll believe B I said if you believe Sophia, you will find him guilty of capital murder; and if you believe this self-serving confession, you will find him guilty of just murder B the lesser-included of murder, and I don=t back off from that one bit. I don=t back off of it one bit. But I do B I am disappointed that you 12 people chose to believe this document over the lady.
Now, after this is over B and this happens from time to time B there is going to be some of you who say, AOh, I believed her. I absolutely believed her, but there were others on the jury that didn=t, and I just compromised my verdict.@
Well, I am disappointed in you too because that wasn=t the law and that wasn=t the charge. You were supposed to, all 12 of you acquit -
[APPELLANT=S COUNSEL]: I would object. That was the law. The jury B insulting the jury=s verdict is not proper argument, and I object.
THE COURT: Overruled.
[PROSECUTOR]: The law that, so you didn=t believe the lady. You chose to believe this. Well, let me tell you what a verdict like this sends. I thought collectively you would get it, but you just don=t. The rape victim who says, AHe held a gun to my head, but I still did not want to be raped, I wanted to fight and struggle,@ and gets killed, that=s not an intentional killing. How about that?
How about you=re in your own home B and you know his propensity, from Mississippi, to break into houses B he comes in and you defend your home. You=re struggling with him. That=s not an intentional killing. That=s not a capital murder. That=s ridiculous. That is ridiculous. A criminal B
[APPELLANT=S COUNSEL]: Excuse me. I would object again. That=s improper argument. That decision has been made by the jury, and it is improper to tell the jury the verdict B
THE COURT: Overruled. Go ahead.
[PROSECUTOR]: If you missed it, it is ridiculous. This gun, his weapon of choice, the one he likes, the chrome-plated ones, the flashy ones, he takes that and he approaches someone with a loaded weapon ready to shoot, and you have the audacity to what? Turn and run? Or to wave your arms? There is some kind of physical contact and he kills you and it is not capital murder? Ridiculous.
This lady, five minutes after her husband is dead, is approached by the police and she tells them the best way she can in her language what happened. And she showed you. She got up there and she demonstrated the physical contact. And when that=s interpreted for the first officer that arrives on the scene and for the second and for the third and for the fourth, struggle, struggle, struggle, they repeat their error. They are wrong, but it is like a runaway rumor. You never can track it down. Everybody from then on says struggle, struggle, struggle, and I guess y=all bought it too.
Because she told you how it was. She saw it. She saw her husband shot. She saw B told you how he fell out, and when they tumbled out, I guess, tumbled out the door turns into struggle for someone switching languages. Can=t you see how it would happen?
And do you know what about this thing? People B people, I have done this for awhile. Don=t you think that people that have been to the penitentiary one time get a little clue about how to tell the cops, how to get next to the straight people of the world. And if you=re in a bind, just say, AI=m sorry. I didn=t mean it. It must have been a struggle.@
Don=t you think people that have been twice to the penitentiary might have a clue abut what to say in here, start out denying and then when they have to flip it over, say, AOh, gosh, I=m sorry. I didn=t mean for it to happen,@ all these other things. And that B AOh, I was doped up too.@ What else?
And the third felony up here and carrying the gun before.
From the defense argument last week. You go home, you go home. Get your toothbrush, touch up your makeup, shave your face, whatever you are going to do. Look in the mirror next week, next month like Sophia does with her three daughters. Did you do the right thing down here? I submit not. I submit not. They won.
You can go back and give him a life sentence and a $10,000 fine, and Mr. Mims won. Because a life sentence for capital murder is different from this life sentence you are going to give him. He=s getting less. That=s why they call it a lesser charge.
[APPELLANT=S COUNSEL]: Excuse me, Judge. I would object. That=s outside the record and it=s not part of the Court=s instructions.
THE COURT: Overruled.
[PROSECUTOR]: Take a good look in that mirror this afternoon, this evening, tomorrow morning. Think did we do the right thing. If I was on that stand and witnessed a horrible act and something happened to me or mine and I got up there and had my identity called into question, had what I saw called into question, would 12 citizens sit over there and say, AMaybe there was a struggle.@
You know what that does? It blames the victim. You just give people like this to take to the penitentiary a story to say if you get caught next time, say there was a struggle. You won=t get capital murder; you=ll get something less.
My boss is two floors down. If you want to complain about this argument, call him up and do it because this is just B it=s just wrong. You have already made one mistake. Don=t make another one. Somebody back there have the guts to say B
[APPELLANT=S COUNSEL]: Excuse me, Judge. Can I have a continuing objection to telling the jury they have made a mistake concerning their verdict?
THE COURT: Yes, sir.
[PROSECUTOR]: Somebody have the guts back there to say, AWhy not a life sentence?@ How about somebody showing some fortitude and say, AWhy not a life sentence?@ This is not just Jay=s and my community; it=s yours.
Do you want a man that you have now convicted of a fourth felony that=s carrying these around monthly in July and August, do you want him out in our community?
If you do, give him less. If you do, give him less. Take a good look in that mirror when you get home.
Thank you.
Applicable Law and Analysis
Proper jury argument falls into four general categories: (1) summation of the evidence presented at trial; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000) (citing McFarland v. State, 845 S.W.2d 824, 844 (Tex. Crim. App. 1992)). Even when arguments exceed the boundaries of these permissible groups, they will not constitute reversible error unless they are manifestly improper, violate a mandatory statute, or inject new, harmful facts into the case. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); see also Reed v. State, 991 S.W.2d 354, 362-63 (Tex. App.BCorpus Christi 1999, pet. ref=d). The remarks must have been a willful and calculated effort on the part of the State to deprive an appellant of a fair and impartial trial. Wesbrook, 29 S. W.3d at 115.
Here, the jury convicted Appellant of the lesser offense of felony murder, an unintentional crime, rather than the charged offense of capital murder. In his argument, the prosecutor expressed his disdain for the jury verdict and his disappointment that the jury apparently believed Appellant=s self-serving written statement over Garcia=s eyewitness testimony.
Appellant contends that the argument in this case invaded the province of the jury because it was clearly directed at making the jury second guess its unanimous guilty verdict. According to Appellant, the prosecutor invited the jury to disregard their oath and to assess Appellant=s punishment based on shame or embarrassment for not giving the State a capital murder verdict. Finally, Appellant asserts that the error had a substantial and injurious effect on the jury=s verdict since the life sentence set by the jury was the maximum term of imprisonment.
The main point of the prosecutor=s argument was that a lengthy sentence was warranted in this case. He chastised the jury about their verdict in the guilt-innocence phase, but continued to refer back to the evidence as he did so. The use of the weapon and Appellant=s prior criminal convictions were a consistent theme throughout the argument. In context, the State=s chastisement of the jury for its verdict at the guilt-innocence phase was in the sense of asking the jury to protect the community by imposing a life sentence in light of the facts of Menendez=s murder and Appellant=s criminal history. The prosecutor did state some of his personal opinions concerning the issues in the case, but all could be referred back to some evidence in the record. The statements were not only a general plea for law enforcement but also a request that the jury assess what he believed to be the proper punishment in the case. A prosecutor may argue his opinions concerning issues in the case so long as the opinions are based on the evidence in the record and do not constitute unsworn testimony. McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985).
Based upon our consideration of the State=s argument as a whole, we conclude that the State=s punishment argument was within the permissible limits of a plea for law enforcement. See Lange v. State, 57 S.W.3d 458, 470 (Tex. App.CAmarillo 2001, pet. ref=d); Arthur v. State, 11 S.W.3d 386, 393 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); King v. State, 4 S.W.3d 463, 464-65 (Tex. App.CHouston [1st Dist.] 1999, no pet.). Moreover, under the circumstances shown in this case, a life sentence cannot be considered unreasonable. The proof established a robbery and murder which can be considered an extreme act of violence. Appellant used a deadly weapon to threaten, and ultimately take, another=s life and property. Conviction for three prior felonies failed to deter him from further crimes. At the time the instant case was filed, Appellant was out on a $500 bond for the misdemeanor offense of unlawfully carrying a weapon.
We reiterate that unless a prosecutor=s argument is extreme or manifestly improper or injects new and harmful facts, no reversal is required. Duffy v. State, 567 S.W.2d 197, 206 (Tex. Crim. App. 1978). We hold that the argument here is not of that character. Appellant=s fifth issue is overruled.
Conclusion
Because we have overruled Appellant=s issues one, two, three, four, and five, we affirm the judgment of the trial court.
DIANE DEVASTO
Justice
Opinion delivered April 30, 2004.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)
[1] Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
[2] The Ahard@ sciences are areas in which precise measurement, calculation, and prediction are generally possible, including mathematics, physical science, earth science, and life science. The Asoft@ sciences, in contrast, are generally thought to include such fields as psychology, economics, political science, anthropology, and sociology. Weatherred v. State, 15 S.W.3d 540, 542 n.5 (Tex. Crim. App. 2000) (citations omitted). The factors to evaluate the reliability of hard sciences are stated in Daubert, 509 U.S. at 593-94, 113 S. Ct. at 2796-797, and Kelly, 824 S.W.2d at 573.