Affirmed and Memorandum Opinion filed April 22, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00752-CR
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TAMISHEA LANETTE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1005182
M E M O R A N D U M O P I N I O N
A jury convicted Tamishea Lanette Williams of capital murder. Because the State did not seek the death penalty, the trial court sentenced her to life in prison. In three issues, appellant challenges the exclusion of evidence of a witness=s extraneous offenses, invocation of a witness=s privilege against self-incrimination, and admission of a witness=s prior consistent statement. We affirm.
Factual Background
In late March 2004, Christopher Allen and Williams decided to purchase ecstasy pills from a friend of Allen=s and resell the drugs for a profit. How they came to this agreement was disputed at trial. Allen testified that Williams asked him to earn some money for her by gambling. Allen alleges he won between $1500 and $1700 gambling at a club with Williams=s money. Williams divided the money with Allen, and Allen left the club. Williams then returned to the club and lost her half of the winnings. Allen testified that Williams called him and asked that he return to the club to help her recoup her losses. Allen returned to the club, but declined Williams=s request to help her win the money back. Allen further testified that Williams approached him two or three days later and proposed a drug deal to recoup her gambling losses. Williams instructed Allen to raise $6500 with which to purchase ecstasy pills. Allen raised the money with the help of Daniel and Amin Fields.
On March 24, 2004, Williams and Allen agreed to meet at her home to purchase the drugs. Allen testified that Williams asked him to drive into her garage as her children would be asleep in the house. Both Williams and Allen testified that Allen drove to her home, called from the driveway so that Williams could open the garage door, and Allen drove directly into Williams=s garage. The garage door would not stay open, Williams told Allen, so she closed it after Allen drove into the garage. Allen=s passenger was Amin Fields, the complainant.
Allen testified that after he drove into the garage, he turned off the ignition, retrieved the cash from the trunk, and began to count it. At this time, Williams stepped into the backseat of the car and told Fields that the drugs were inside the house. She then left the car, went into the house, then came back out and got into the backseat again. Allen testified that he was still outside the car counting the money when he heard a gunshot. Allen dropped the money, opened the garage door, and ran. As he ran away from the house, he heard two more gunshots. Allen eventually called 911 and met a responding officer at Williams=s house. By the time the officer arrived at the house, the car was gone, but there was a large bloodstain in the driveway. A search revealed no one inside the home.
Williams told a different story. She testified that she never asked Allen to gamble for her, but that Allen had noticed that she had about $6000 in cash. Williams testified that she intended to buy bedroom furniture with the cash, but the furniture was not the right size for her home. Williams alleged that Allen proposed the drug deal to make money on Williams=s $6000. Williams agreed to purchase pills from Allen and set up the transaction at her home. As described by Allen, he drove into her garage with Fields as his passenger. Williams testified that she opened the garage door for Allen, then went back inside the house to get the money. She kept a gun in the bag that held the money. She got into the backseat of the car with the bag as Allen stepped out of the driver=s seat. She testified that Fields locked the car doors and began threatening her. He told her to give him the money or he would put her in the trunk, drive away, and kill her. She testified that Fields told Allen that he should return to the car because they needed to leave. As Allen began to walk back to the car, Fields told Williams to get in the trunk. Williams testified that she then grabbed her gun, closed her eyes, and shot once in front of her and twice behind her. When she opened her eyes she saw that Fields was slumped over and there was blood everywhere.
Williams testified that she went into the house and told her sister that she had been robbed and that they needed to get out of the house before Allen returned Awith other guys@ to try to kill her. She testified that she Adumped@ Allen=s car with Fields=s body and drove her own car to a motel where she checked in under the name of Amy Savoy. At the motel she showered, then drove to a police station to report a shooting at her home. Williams testified that the police told her to return to her neighborhood and call 911 from a pay phone. Williams did so, identifying herself to the 911 operator as Lavera Green, her sister=s name, and reported that there were three men in her garage. She also reported that Allen fired the shots and that she and her sister had driven away from the house in her car. Williams later told the police several different versions of the incident, which she admitted at trial were false. She likewise admitted at trial that she fired the gun at Fields, but only in fear for her life.
Standard of Review
In each of her issues, Williams challenges the admission or exclusion of evidence. We review a trial court=s rulings on the admission or exclusion of evidence for abuse of discretion. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005).
Extraneous Offenses
In her first issue, Williams contends the trial court erred in excluding evidence of Allen=s unadjudicated extraneous offenses. In an unrelated case where Allen was the defendant, the State filed a notice of intent to use extraneous offenses and prior convictions for impeachment. In this document, the State listed several unadjudicated extraneous offenses Allen allegedly committed. At trial, Williams testified that she was afraid of Allen because she knew he had previously assaulted one of his girlfriends and committed a series of armed robberies at auto parts stores. Eric Bowman, district manager of an O=Reilly Auto Parts Store, testified that he was a victim of an armed robbery at his store on March 19, 2004. He identified Allen, a former employee, as one of the robbers. The aggravated robbery case, however, was never prosecuted. In addition to the above testimony, Williams asked to call Kris Sanders, a former Harris County Assistant District Attorney, and Detective T. L. King, a Harris County Sheriff=s Deputy, to testify about Allen=s unadjudicated extraneous offenses. The trial court denied Williams=s requests because neither Sanders nor King had personal knowledge that Allen had committed the offenses.
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Tex. R. Evid. 602. The admission of Sanders=s and King=s testimony about Allen=s extraneous offenses would have violated Rule 602. Williams argues, however, that the exclusion of evidence of Allen=s extraneous offenses violated her constitutional right to present a complete defense, citing Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006).
In Holmes, also a murder case, the defendant attempted to introduce evidence that another person had committed the crime. 547 U.S. at 322, 126 S. Ct. at 1730. The trial court excluded the evidence based on a holding by the South Carolina Supreme Court that evidence of third-party guilt was inadmissible if the evidence cast only a bare suspicion of another=s guilt, especially in the face of substantial forensic evidence. 547 U.S. at 323B24, 126 S. Ct. at 1731. The United States Supreme Court recognized that Astate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.@ 547 U.S. at 324, 126 S. Ct. at 1731. The Court held, however, that this latitude is limited by the Due Process Clause of the Fourteenth Amendment as well as the Compulsory Process Clause and the Confrontation Clause of the Sixth Amendment, which guarantee criminal defendants a meaningful opportunity to present a complete defense. Id. The Court further held this right is abridged when rules of evidence infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve. Id. The Court pointed to several of its past cases striking down similar rules that were disproportionate or served no legitimate purpose. 547 U.S. at 325, 126 S. Ct. at 1732B33 (citing Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (state law that barred defendants from presenting the testimony of any co‑defendant, unless the co‑defendant had been acquitted, but imposed no such restriction on the prosecution); Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) (state Avoucher rule,@ which barred any party from impeaching its own witness); Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (court rule preventing defendant from introducing evidence bearing on the credibility of his confession after voluntariness had been determined by the court)).
Williams argues the trial court abridged her right to present a complete defense by excluding the State=s notice of extraneous offenses and the testimony of Sanders and King. At oral argument, the State conceded that evidence of Allen=s extraneous offenses might have been admissible to impeach his credibility. However, Williams=s evidence was excluded because the witnesses did not have personal knowledge of Allen=s extraneous offenses; therefore, their testimony would have been unreliable. A rule that excludes unreliable evidence serves a legitimate interest and does not deny the accused the right to present a meaningful defense. Cf. United States v. Scheffer, 523 U.S. 303, 316, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998).
Moreover, the trial court permitted Williams to testify that she knew Allen had been accused of committing several armed robberies and that he had assaulted his girlfriend. By excluding the testimony of Sanders and King, the trial court did not deny Williams the right to present a meaningful defense. We overrule Williams=s first issue.
Fifth Amendment Privilege Against Self-incrimination
In her second issue, Williams contends the trial court erred in permitting Allen to invoke his Fifth Amendment privilege against self-incrimination. The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. In a memorandum filed at the time of trial, Williams stated that she wanted to introduce evidence that Allen Acommitted other crimes, including aggravated robberies, using a deadly weapon, a firearm.@ In her memorandum, Williams stated she intended to ask Allen whether he committed a string of armed robberies and whether he was aware that the Harris County District Attorney=s office had filed a document listing these offenses.
At trial, Williams reserved cross-examination of Allen until her case in chief. Before cross-examining Allen, Williams asked the trial court to determine whether Allen would be required to answer questions concerning unadjudicated extraneous offenses. The trial court held a hearing at which Allen was represented by counsel. The trial court determined that the evidence Williams intended to introduce consisted of unadjudicated offenses. Allen=s counsel advised him to assert his right against self-incrimination. The trial court held that Williams could ask Allen about pending charges against him, but that if Williams asked Allen about the unadjudicated offenses, the court would sustain the prosecutor=s objection. At the hearing, Williams did not inform the trial court that she would also like to ask Allen if he was aware of the State=s notice of extraneous offenses, which listed the offenses. During cross-examination, Williams asked Allen Aabout the O=Reilly=s robberies.@ The prosecutor objected and the trial court sustained the objection. Williams never asked Allen whether he was aware of the State=s notice of extraneous offenses.
Williams recognizes that Allen=s Fifth Amendment privilege overrides her constitutional right to present a defense. See Grayson v. State, 684 S.W.2d 691, 696 (Tex. Crim. App. 1984). She argues, however, that Allen waived the privilege by testifying on behalf of the State. For this proposition, Williams cites Blackmon v. State, 642 S.W.2d 499 (Tex. Crim. App. 1982). In Blackmon, the court of criminal appeals concluded that Ait is too broad a statement to suggest that a witness taking the stand and testifying never waives his privilege against self-incrimination with respect to extraneous activity.@ Id. at 501. Instead, the witness may invoke the privilege at the Athreshold@ of Aany particular transaction or area of testimony@ that is unrelated to the testimony provided on direct examination. Id. at 502.
The trial court could have compelled Allen to testify about potentially incriminating matters only if: (1) the testimony related to the transaction or Aarea of testimony@ about which he voluntarily testified on direct examination; or (2) Allen failed to invoke his privilege at the Athreshold@ of the questioning regarding extraneous matters. As detailed above, Allen=s testimony on direct was limited to the events leading to, and immediately following, the murder of the complainant. Further, Allen invoked his Fifth Amendment privilege at the threshold of questioning regarding the extraneous matters.
Williams further argues that Allen could not have incriminated himself by answering her question about whether Allen was aware of the State=s notice of intent to use extraneous offenses filed in the unrelated case. Although Williams raised this issue in her memorandum, she did not raise it at the hearing before the trial court or ask Allen this question on cross-examination. By failing to ask the question and obtain a ruling from the trial court, Williams failed to preserve error. See Tex. R. App. P. 33.1.
Even if Williams preserved error and asked Allen whether he was aware that the State had filed a notice of the extraneous offenses, the question would have implicated Allen=s Fifth Amendment right against self-incrimination. The corollary to the above-cited holding in Blackmon is that once a witness relates part of a transaction, he should not be permitted to assert the Fifth Amendment to prevent disclosure of relevant facts. See Scott v. State, 940 S.W.2d 353, 357 n. 4 (Tex. App.CDallas 1997, pet. ref=d). If Williams had asked Allen whether he was aware of the State=s notice of extraneous offenses and Allen had answered, Allen would have risked waiving his privilege against self-incrimination. See Draper v. State, 596 S.W.2d 855, 857 (Tex. Crim. App. 1980). The trial court did not abuse its discretion by permitting Allen to invoke the privilege. We overrule Williams=s second issue.
Admission of Prior Consistent Statement
In her third issue, Williams contends the trial court erred in admitting Spencer Farwell=s videotaped statement to the police as a prior consistent statement. Farwell testified on direct examination that he knew Williams and her sister because they regularly bought marijuana from him. On March 24, 2004, the day of the incident, Williams told Farwell that Asome guys@ had stolen $6000 from her. Williams told Farwell that the Aguy@ who robbed her had called asking her for ecstasy. She told Farwell she was planning to recoup her money from him. Williams=s sister asked Farwell for a gun so she could Awatch her sister=s back,@ but Farwell did not have a gun to give them.
About three hours later, Williams called Farwell asking if he knew of a dead-end street in the neighborhood. When Farwell asked why she was looking for a dead-end street, Williams replied, AI got these ho-ass n****s in my garage and I need to find somewhere to dump this car.@ Farwell told Williams of a dead-end street and hung up the phone. Less than five minutes later, Farwell saw Williams and her sister driving by his home. Williams stopped the car and Farwell walked up to the passenger side of the car to talk with her. He noticed that Williams=s pants were bloody and also noticed a bag of money on the floor of the car. Williams asked Farwell to Aget rid of@ a gun for her. Farwell placed the gun in a fast-food bag and hid it with plans to sell it later.
Two days after the murder, Farwell went to the police, surrendered the gun, and gave a videotaped statement. About one month after giving the statement, Williams asked him what he had told the police. When Farwell said he had told the truth, she told him that if he testified in court as he had testified on the videotape, Ashe knew she was going to jail.@ Farwell further testified that he had charges pending against him and that the prosecutor had agreed to Aprobably be a little lenient,@ but that he had struck Ano specific deal@ in exchange for his testimony.
On cross-examination, Williams questioned Farwell extensively about the videotaped statement he gave to police:
Q. Well, you tell them something and they say to you, Spencer, that ain=t how it happened, right? You didn=t tell them this story the first time you went in, did you?
A. Yes, sir.
Q. Not exactly like this. It wouldn=t have taken three hours, would it?
A. Well, they just asking the same questions. I kept giving the same answers.
Q. And that=s because they didn=t like what you were telling them, did they?
A. No, sir.
Q. They didn=t want to hear what you had to say, did they?
A. No.
Q. So, finally after a while, you came around to the version that they accepted, didn=t you?
A. No, sir.
Q. And that=s the version we=re hearing here today in court.
A. The truth.
Q. And that=s the version that=s going to get you your lenient sentence. Am I right?
A. I told the truth.
Q. You think you=d still be down there in the police station if you hadn=t changed your story?
A. I didn=t change my story.
Q. You didn=t tell them what you just told us today, did you? That=s not the first thing you told them, is it?
A. That=s the truth.
[Defense counsel]: Judge, I would ask he be instructed to answer my question.
THE COURT: Ask the question again, please.
Q. (By [defense counsel]): You didn=t tell them this story first when you went to the police station, did you? Yes or no?
A. Yes, I told them the truth.
Later, during the testimony of Detective Alex Ortiz, the State sought to introduce Farwell=s videotaped statement. Williams objected on the grounds of improper bolstering. The trial court admitted the statement as a prior consistent statement to rebut the suggestion that Farwell=s testimony was fabricated.
Rule 801(e)(1)(B) permits the admission of prior consistent statements of a witness Aoffered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.@ Tex. R. Evid. 801(e)(1)(B). The court of criminal appeals has recognized the following four requirements as set out by the United States Supreme Court that must be met for prior consistent statements to be admissible:
(1) the declarant must testify at trial and be subject to cross-examination;
(2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant=s testimony by the opponent;
(3) the proponent must offer a prior statement that is consistent with the declarant=s challenged in-court testimony; and,
(4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose.
Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007) (citing Tome v. United States, 513 U.S. 150, 156B58, 115 S. Ct. 696, 701, 130 L. Ed. 2d 574 (1995)).
Williams contends the State failed to meet the requirements that there was a charge of recent fabrication and that the prior consistent statement was made prior to the time the alleged motive to falsify arose. Rule 801 sets forth a minimal foundation requirement of an implied or express charge of fabrication or improper motive. Id. A[T]here need be only a suggestion that the witness consciously altered his testimony in order to permit the use of earlier statements that are generally consistent with the testimony at trial.@ Id. (quoting United States v. Casoni,, 950 F.2d 893, 904 (3d Cir. 1991)). The court of criminal appeals held that the relevant inquiry is, A[f]rom a totality of the questioning, giving deference to the trial judge=s assessment of tone, tenor, and demeanor, could a reasonable trial judge conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive?@ Id. at 808B09. If the answer to that question is Ayes,@ the trial court does not abuse its discretion in admitting a prior consistent statement made before any motive to fabricate arose.
In this case, the record reflects that two days after the shooting, Farwell went to the police station, surrendered the gun, and gave a videotaped statement substantially similar to his testimony at trial. During her cross-examination of Farwell, Williams accused Farwell of having told a story to the police different from what he was telling at trial. Williams argues on appeal that she was not accusing Farwell of telling a different story at trial, but that she was accusing him of telling a different story to the police when he first arrived at the police station. Williams claims that Farwell made an inconsistent statement prior to the videotaped statement before he was motivated by the deal with the prosecutor to abandon that version and make the consistent statement that was recorded on videotape.
In determining whether a prior consistent statement is admissible, we must review whether a reasonable trial judge could conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive. We review the totality of the circumstances, and are not bound by Williams=s counsel=s assertion of his intent during the examination. Reviewing the cross-examination of Farwell and the totality of the questioning, a reasonable trial judge could conclude that Williams mounted a charge that Farwell fabricated his testimony specifically because of the agreement with the prosecutor. Evidence of his prior statement rebutted that charge. The trial court did not abuse its discretion in admitting the videotaped statement. We overrule Williams=s third issue and affirm the judgment of the trial court.
/s/ Jeff Brown
Justice
Judgment rendered and Memorandum Opinion filed April 22, 2008.
Panel consists of Justices Yates, Guzman, and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).