Affirmed and Memorandum Opinion filed September 20, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00233-CR
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STEVEN RAY PEACE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 967,801
M E M O R A N D U M O P I N I O N
A jury found appellant guilty of first degree murder and the trial court sentenced appellant to confinement for forty-five years in the Texas Department of Criminal Justice, Institutional Division. Appellant raises twenty seven issues in which he challenges the trial court=s ruling on admission of evidence and asserts he received ineffective assistance of counsel. We affirm.
Factual and Procedural Background
In the late 1980's, appellant, Steven Peace, stole cars and trucks for a theft ring operated by Charles and Chip Campbell in Oklahoma. Appellant would steal a truck or car and drive it to Oklahoma where he would sell it to the Campbells, who would then sell the vehicle intact, or sell its parts. In the early morning hours of January 7, 1988, appellant shot and killed Dimas Garcia, a security guard at an automobile dealership. Also in January, 1988, while driving a vehicle to Oklahoma, appellant stopped in Killeen, Texas to visit with Chip Campbell. Appellant told Campbell he had to shoot someone to escape with a vehicle. Almost two years later, Texas Ranger Stanley Oldham and Harris County Sheriff=s Detective Max Cox traveled to Austin County to interview appellant=s brother, David Peace, in connection with the murder. After talking with David Peace, Oldham testified the investigation centered around appellant. Attempts to locate appellant were unsuccessful.
Several years later, on August 28, 2000, Roger Wedgeworth of the Harris County cold case squad, began to review the murder case. After reviewing the statements made during the initial investigation and speaking with Charles and Chip Campbell, Wedgeworth retrieved several bullets and spent shell casings from the back yard of appellant=s former home. The firearms examiner determined that the gun appellant used in his back yard matched the gun used to shoot Garcia at the Beck and Masten car dealership. Appellant was subsequently indicted and convicted of murder.
Discussion
I. Admission of Evidence
In issues one through twelve, appellant complains of the admission of hearsay testimony by Texas Ranger Stanley Oldham. Appellant contends the trial court erred in admitting back-door hearsay by Oldham of what David Peace and Brynda Abdullah told him during his investigation. Appellant argues the hearsay was admitted in violation of article 1, sections 10 and 19 of the Texas Constitution, the Fifth and Fourteenth Amendments to the United States Constitution, and Texas Rule of Evidence 802.
A. Detective Oldham=s Testimony
Appellant complains of the following testimony elicited by the State from Detective Oldham during direct examination:
Q And did you, in fact, then to go Austin County and talk to David Peace?
A Yes.
Q And specifically on September 13 of 1989 did David Peace provide you a written statement regarding information that he had?
A Yes, ma=am, he did.
Q That was pertinent to this investigation?
A Yes.
Q As a result of that conversation with David Peace, what did you and Detective Cox do?
A We continued our, or continued that investigation, concentrating on information that he had given us.
Q Okay. And did - - where did that information lead?
MR. MCWILLIAMS [defense counsel]: May we approach?
THE COURT: You may.
(At the Bench)
MR. MCWILLIAMS: We=re stepping on the borders of the motion in limine, Judge. In my opinion the response, specifically the last question, was based on the information that we received from David Peace. That is strictly hearsay evidence and the things that they did. Now he has told the jury that he=s proceeding on information he received. That is backdoor hearsay.
THE COURT: I think she can rephrase the question, ask him what did he do next.
(In the hearing of the jury)
Q (By Ms. Nassar [prosecutor]) Ranger Oldham, without going into the statement that David Peace gave you, what did, what was the next thing that you all did in your investigation?
A Our investigation centered around a particular person.
Q And who was that person?
A Steven Peace.
MR. MCWILLIAMS: Again, your Honor, may we approach?
THE COURT: Do you object to that specific answer?
MR. MCWILLIAMS: Object to that specific question and answer.
THE COURT: Be overruled as to that. You may proceed.
Appellant also argues the trial court erroneously allowed Detective Oldham to testify as to back-door hearsay by Brynda Abdullah, formerly Brynda Peace, based on the following exchange:
Q [By Ms. Nassar] You stated that Brynda Peace gave you a written statement. What did you all do next in your investigation?
A After her statement?
Q Yes.
A Continued to investigate Steven Peace.
Appellant contends Detective Oldham=s testimony concerning the focus of his investigation being on appellant after he spoke to both David Peace and to Abdullah constitutes back-door hearsay. Appellant argues Detective Oldham=s answers showed that based on the statements of David Peace and Abdullah the investigation Acentered@ and Acontinued@ to center around appellant, leading to the inescapable conclusion that both David Peace and Abdullah inculpated appellant.
a. Standard of Review
In reviewing the admission of evidence this court follows an abuse of discretion standard of review. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
b. Hearsay
The rules of evidence prohibit admission of hearsay evidence except as provided by statute or other rules prescribed pursuant to statutory authority. See Tex. R. Evid. 802. AHearsay@ is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). A statement not offered to prove the truth of the matter asserted is not hearsay. Dinkins v. State, 894 S.W.2d 330, 347B48 (Tex. Crim. App. 1995). Statements offered for the purpose of explaining how a defendant became a suspect and not for the truth of the matter asserted are not hearsay. See Dinkins, 894 S.W.2d at 347 (appointment book and patient application form were not hearsay when tendered to show how appellant became a suspect in the investigation). Thus, a police officer may testify that after taking a witness statement the investigation focused on a particular defendant. See Gholson v. State, 542 S.W.2d 395, 398 (Tex. Crim. App. 1976) (A[a]n extra‑judicial statement or writing may be admitted as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter stated therein, without violating the hearsay rule.@). This is because the testimony assists the jury=s understanding of the events by providing context for the police officer=s actions. See Cano v. State, 3 S.W.3d 99, 110 (Tex. App.CCorpus Christi 1999, pet. ref=d).
Here, David Peace=s statement was never offered or admitted into evidence at trial. No statements made by David Peace were admitted during Oldham=s or Abdullah=s testimony. Oldham=s testimony that his investigation centered, or continued to center, on appellant after taking David Peace=s and Abdullah=s statements was admissible to show how appellant became a suspect. Issues one through twelve are overruled.
B. Right to Confront and Cross-Examine David Peace
In issues thirteen and fourteen, appellant argues he was denied the right to confront and cross-examine David Peace in violation of article 1, sections 10 and 19 of the Texas Constitution and the Sixth Amendment to the United States Constitution. Appellant did not advance this objection until after the conclusion of trial in a motion for new trial. At trial, appellant objected to the complained of testimony on the ground of hearsay, not on the ground that he had been denied his right to confront a witness. An objection on hearsay does not preserve error on Confrontation Clause grounds. Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004). Thus, we hold appellant did not preserve for appeal issues thirteen and fourteen complaining of the denial of appellant=s federal and state constitutional rights to confront witnesses.
Even if appellant preserved error, the trial court did not deny appellant his right to confrontation under the federal and state constitutions. A testimonial out-of-court statement that is introduced into evidence is barred by the Confrontation Clause unless the witness is unavailable and has been subject to cross-examination. Crawford v. Washington, 541 U.S. 36, 53 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004). Although David Peace=s statement was a testimonial out-of-court statement, it was not introduced into evidence at trial. Therefore, the trial court did not abuse its discretion. Appellant=s thirteenth and fourteenth issues are overruled.
C. The State=s Cross-Examination of Appellant
In issue fifteen, appellant argues the prosecutor committed reversible error in questioning appellant about inadmissible statements alleged to have been made by David Peace. The following is an excerpt of the State=s cross-examination of appellant:
Q Do you remember talking to your brother, specifically pulling up to the parking lot area of the Beck and Masten car dealership late one night in either December 1988 or January 1989?
A No.
Q Do you remember talking to your brother right then in front of that car dealership and telling him you had shot a security guard there?
MR.MCWILLIAMS: Object to this and ask if we can approach.
THE COURT: Approach.
(At the Bench)
MR. MCWILLIAMS: Your Honor, we=re going to object to this. This is hearsay. This is all - -
THE COURT: As far as what he said?
MR. MCWILLIAMS: This is all based on David Peace=s statement that he is not here to be cross examined by.
MS. NASSAR: I can ask him what he said.
THE COURT: In terms of what he said. Obviously - -
MR. MCWILLIAMS: The defense=s position is that is backdoor hearsay of David Peace=s statement.
THE COURT: Your objection is overruled. The questions can be asked specifically as to what he said, not in terms of, couched in terms of what the brother said about that but obviously just in terms of what he said, if he ever made such statements, not in terms of what was said to him.
(In the hearing of the jury)
Q (By Ms. Nassar) Did you remember telling your brother that you had gone to the dealership looking for a way to get a truck out of the lot when the security guard walked up on you?
A No, I did not.
Q Do you remember telling your brother that you then pulled a pistol at that guard and the guard said something to you like, please, don=t shoot me?
A No, that never happened.
Q Do you remember telling your brother that you started firing the gun and didn=t stop until the gun was empty?
A No, that never happened.
Q Do you remember telling your brother that you thought it was a Taurus nine millimeter?
A No.
Q That was the gun you used?
A No.
Q Do you remember telling your brother that after you shot the guard you left and got in your truck and drove away?
A No.
Appellant contends the prosecutor, in questioning appellant about hearsay statements alleged to have been made by David Peace, left the indelible mark in the minds of the jury that appellant had confessed to his brother. Appellant argues that his own statements allegedly made to his brother were inadmissible hearsay. A party=s own statements inculpating himself are admissible as non‑hearsay on the logic that a party is estopped from challenging the fundamental reliability or trustworthiness of his own statements. Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999). Therefore, the State was permitted to cross-examine appellant on statements alleged to have been made by him against his own interest. Tex. R. Evid. 801(e)(2)(A). (statement is not hearsay if the statement is offered against a party and is his own statement in either an individual or representative capacity). Appellant=s fifteenth issue is overruled.
II. Ineffective Assistance
In points of error sixteen through twenty-five, appellant argues he was denied effective assistance of counsel pursuant to the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I, sections 10 and 19 of the Texas Constitution. Specifically, appellant contends:
_ Counsel failed to object to hearsay elicited from Detective Stanley Oldham and back-door hearsay of David Peace.
_ Counsel failed to request a contemporaneous limiting instruction be given to the jury regarding impeachment by a prior inconsistent statement and failed to request a limiting instruction on the impeachment issue in the final charge to the jury.
_ Counsel failed to object to the improper cross-examination of Steven Peace.
_ Counsel failed to object to the prosecution=s improper argument referring to inadmissible hearsay of David Peace.
_ The cumulative errors of trial counsel amounted to ineffective assistance of counsel.
At the hearing on the motion for new trial, appellant=s trial counsel testified he failed to object to some, but not all of the questions by the prosecutor that were allegedly designed to elicit the substance of David Peace=s statement. Trial counsel further testified he did not ask for a limiting instruction for impeachment purposes when appellant was questioned on cross-examination. He further testified that such omissions were not the result of trial strategy.
A. Standard of Review
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Under Strickland, appellant must prove (1) trial counsel=s performance was deficient, and (2) the deficient performance was so serious that it prejudiced his defense. 466 U.S. at 687; Bone, 77 S.W.3d at 833. To establish both prongs, appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. Bone, 77 S.W.3d at 833. Appellant must identify specific acts or omissions of counsel that constitute the alleged ineffective assistance and affirmatively prove that counsel=s acts or omissions fell below the professional norm for reasonableness. Jackson v. State, 973 S.W.2d 954 (Tex.Crim.App.1998). The alleged ineffectiveness must be firmly founded in the record. Bone, 77 S.W.3d at 835. If appellant fails to satisfy either prong of the Strickland test, we do not need to consider the remaining prong. Strickland, 466 U.S. at 697.
Judicial scrutiny of counsel=s performance must be highly deferential, and we indulge a strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel=s actions were reasonably professional and motivated by sound trial strategy. Strickland, 466 U.S. at 689. Appellant must overcome this presumption by illustrating why trial counsel did what he did. Belcher v. State, 93 S.W.3d 593, 595 (Tex. App.CHouston [14th Dist.] 2002, pet. dism=d). When evaluating an allegation of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
B. Failure to Object to Alleged Hearsay
In issues sixteen through nineteen and twenty-two, appellant contends his trial counsel was ineffective for failing to object to alleged hearsay testimony. In addressing issues one through twelve, we found the testimony was admissible because it was not hearsay. A failure to object to admissible evidence is not ineffective assistance of counsel. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992). Therefore, appellant has failed to show counsel=s performance was deficient. Issues sixteen through nineteen, and twenty-two are overruled.
C. Failure to Request Limiting Instruction
In issues twenty and twenty-one, appellant contends he received ineffective assistance of counsel because his trial counsel failed to request limiting instructions regarding impeachment by a prior inconsistent statement. Appellant alleges his counsel=s performance was deficient in that he did not request a contemporaneous instruction at the time the evidence was admitted, nor did he request an instruction in the jury charge. Specifically, appellant contends he was impeached by a prior inconsistent statement during his cross-examination and during Brynda Abdullah=s testimony. At trial, Abdullah testified that she overheard appellant admit to his brother that he killed a security guard. During cross-examination, appellant was asked if he had admitted killing a security guard to his brother.
A prior inconsistent statement of a witness may not be admitted until the witness is told the contents of the prior statement as well as the time and the place and the person to whom it was made, and is given an opportunity to explain or deny the statement. Tex. R. Evid. 613(a). When the out‑of‑court statement is made not by a witness but by a party, however, rule 613 no longer applies. Such statements are governed by rule 801(e)(2)(A), which provides that a statement is not hearsay if it is offered against a party and is that party=s own statement. See Tex. R. Evid. 801(e)(2)(A). Therefore, as prior inconsistent statements of a party, the statements were admissible as substantive evidence, not for impeachment purposes. Because the evidence was not admitted for the sole purpose of impeachment, no limiting instruction was required. Cantrell v. State, 731 S.W.2d 84, 95 (Tex. Crim. App. 1987) (when the testimony could have been admitted for both impeachment purposes and as direct evidence, no limiting instruction is required). Therefore, appellant failed to show his counsel=s performance was deficient. Issues twenty-one and twenty-two are overruled.
D. Failure to Object to Closing Argument
In his twenty-third and twenty-fourth issues, appellant contends he received ineffective assistance of counsel because his trial counsel failed to object to the State=s improper argument. Appellant complains of the following argument:
[W]hen Mr. Garcia was sitting in that parking lot, the defendant did exactly what he told his brother he did and that is after he was breaking into a truck he came upon Mr. Garcia and he unloaded on B
MR. MCWILLIAMS: Objection. Going outside the bounds of the evidence.
THE COURT: Ladies and gentlemen, as the instruction states, you are the exclusive judges of facts proved and the credibility of the witnesses. You=ll decide what the evidence is, what it=s not.
* * * * *
MS. NASSAR: The police officers obtain information from separate people at separate times. And what we know is the first break in this case comes when officers talk to David Peace, the defendant=s brother. And think about what is going on with David Peace at that time. At the time that he talks to the police he=s been living with his brother, Steven Peace, and what does he tell the police?
MR. MCWILLIAMS: Objection, your Honor. It=s clearly outside the bounds of the evidence as well as previous motions filed with this court.
THE COURT: Stay within the record.
MS. NASSAR: Steven Peace gives a statement to the police and Ranger Oldham told you that after that statement from David Peace that Steven Peace became the primary suspect in this case and that was in September of 1989.
The record reflects counsel objected to the first two excerpts, but failed to object to the prosecutor=s comment that appellant became the primary suspect after Oldham reviewed David Peace=s statement. Because that evidence was properly before the jury, the argument was not subject to objection. See Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999) (reasonable deduction from the evidence is proper area of jury argument). Therefore, counsel=s failure to object does not demonstrate deficient performance. Appellant=s twenty-third and twenty-fourth issues are overruled.
In his twenty-fifth issue, appellant contends the cumulative effect of the errors alleged in points of error sixteen through twenty-four was such that he was deprived of ineffective assistance of counsel. Although a number of errors can be found harmful in their cumulative effect, non‑errors may not, in their cumulative effect, amount to error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). Because appellant has demonstrated no deficient performance by his trial counsel, there can be no cumulative error or harm. Appellant=s twenty-fifth issue is overruled.
III. Exclusion of Evidence and Right to Present a Defense
In issues twenty-six and twenty-seven, appellant argues the trial court erred in denying appellant=s right to present a defensive theory of the case in violation of his rights under article I, section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution. Appellant argues the trial court erroneously excluded the testimony of Galen McFee, a security guard at the Beck and Masten dealership. Appellant sought to introduce McFee=s testimony to show an alternate perpetrator may have committed the murder and it may have been an Ainside job.@
Outside the presence of the jury, McFee testified that he worked as a security guard for the Beck and Masten automobile dealership. In October, 1987, at least three months before Dimas Garcia was killed, two men drove up to the fence at the dealership and asked McFee if he knew anything about the AT-tops@ that had been stolen recently. When McFee said he did not, one of the men said, Awe didn=t do it but we know who did.@ The trial court did not allow McFee=s testimony before the jury on the grounds that it was irrelevant and dissimilar from the charged offense. The trial court also excluded the evidence on the ground that much of McFee=s testimony was based on hearsay.
Appellant contends McFee=s testimony was essential to his defense that someone else could have murdered Garcia. The United States Constitution ensures that criminal defendants will have Aa meaningful opportunity to present a complete defense.@ Miller v. State, 36 S.W.3d 503, 506 (Tex. Crim. App. 2001) (quoting Gilmore v. Taylor, 508 U.S. 333, 343, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993)). A defendant has a fundamental right to present evidence of a defense as long as the evidence is relevant and is not excluded by an established evidentiary rule. Miller, 36 S.W.3d at 507. A defendant has the right to present a vigorous defense, and the jury should be allowed to hear all admissible evidence offered by the defendant that bears on any defensive theories. Id. at 508.
Evidence is admissible if it has any tendency to make a fact consequential to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401. Determining whether proffered evidence is relevant is within the trial court=s discretion and should not be overturned if the decision is within the realm of reasonable disagreement. King v. State, 17 S.W.3d 7, 20 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). To be relevant, evidence must be both material and probative. Miller, 36 S.W.3d at 507. Materiality is established when evidence addresses proof of a fact that is of consequence to the determination of the action. Id. To be probative, the evidence must tend to make the existence of the fact more or less probable than it would be without the evidence. Id.
We first consider whether McFee=s testimony addresses a fact that is of consequence to the action. Appellant=s defense was that someone else killed Garcia. Evidence that someone else might have been near the car dealership around the time of the murder or that someone might have been questioning Garcia prior to the murder would be material. Evidence that unknown persons three months before the murder asked another security guard about a minor theft is not evidence supporting or refuting a fact of consequence.
Even if McFee=s testimony was material, it would not be probative of the fact that someone else killed Garcia. In determining probativeness, we apply a test of logic as to whether evidence makes a material issue more or less likely. Miller, 36 S.W.3d at 507. It is not logical that because someone asked McFee about stolen AT-tops@ that those persons or some other person killed Garcia three months later. The trial court reasonably determined McFee=s testimony was not relevant. Appellant=s twenty-sixth and twenty-seventh issues are overruled.
The judgment of the trial court is affirmed.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed September 20, 2005.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).