Affirmed and Memorandum Opinion filed September 1, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00028-CR
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EZEKIEL HARRELL, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1111755
M E M O R A N D U M O P I N I O N
Appellant Ezekiel Harrell, III was convicted of murder and sentenced to life imprisonment. In two issues, appellant contends that the trial court erred by (1) excluding hearsay testimony regarding an alternative suspect=s statement and (2) instructing the jury on the meaning of Aproof beyond a reasonable doubt@ during voir dire. We affirm.
I. Background
Earnest Johnson, Jr. went to bed around 10:30 one night in August 2006, leaving his cousin, James Willie Harris, awake on the couch. A gunshot woke Johnson up around 11:30B11:45 p.m. Johnson remained in bed for approximately five minutes before he went into the den and saw Harris bleeding on the couch. Johnson ran to the front door and saw a man in a camouflage hat and clothes leaving his yard. When the man went through the gate and turned towards a light, Johnson saw the side of his face. Johnson called the police.
Later that morning, a neighbor who had seen appellant wearing a camouflage outfit in the neighborhood on the day of the murder led police to appellant and his girlfriend, Linda Gomez. Police found the couple checking out of a neighborhood hotel. Appellant consented to a search of the couple=s room, where the police found a pistol. Forensics later confirmed that the bullet that killed Harris came from the pistol recovered by the police. Later that day, Johnson viewed a lineup and identified appellant as the man he saw leaving the yard just after the murder. Additionally, appellant was wearing camouflage pants when taken into custody, and police found a camouflage shirt and hat in his hotel room. Testimony at trial showed that appellant was seen wearing a camouflage outfit shortly after the murder and always wore camouflage unless he was working.
Lewis Butler testified that appellant called him a few hours after the murder and asked him for a ride to get some food. Butler gave appellant the ride and later went back to appellant=s room so that Gomez could pay him for it. There he saw Anthony White, a neighborhood resident. During the defense=s case‑in‑chief, appellant attempted to offer evidence of a hearsay statement White allegedly made to Gomez; an affidavit made by White in jail in which he states that he is Aresponsible for the actions that lead [sic] to [Harris=s] death@ and that appellant is innocent; and hearsay testimony from Bob Loper, appellant=s former defense attorney, that White admitted Aholding the gun when it went off.@
The trial court held a hearing on the admissibility of this evidence. During the hearing, defense counsel pointed out Loper=s motion to withdraw, which was in the clerk=s record at the time of the trial court=s ruling. The motion stated that White had recanted the admission and had claimed that he was forced to sign the affidavit. The trial court ruled that Gomez=s hearsay testimony regarding White=s statement was inadmissible, but admitted White=s affidavit and Loper=s hearsay testimony. In rebuttal, the State offered evidence that appellant and White were in cell blocks next to each other. Officer Todd Miller, who investigated Harris=s death, testified that after White filled out the affidavit and spoke with Loper, White claimed that appellant had beaten and threatened him into making the inculpatory affidavit. The jury also heard a recording of a phone call appellant made from jail, in which he states to the person he is calling that AI said man, take the case, man. I ain=t [sic] whooped [him] or nothing. I just really prayed on him, man, I said man, look here, man, I did it for you, man . . . don=t let me go down for this here, man.@ (emphasis added). The jury convicted appellant, and this appeal followed.
II. Exclusion of Gomez=s Hearsay Testimony
In his second issue, appellant contends that the trial court erred in excluding Gomez=s hearsay testimony. Specifically, appellant contends that the trial court=s exclusion of Gomez=s testimony deprived appellant of the right to put on a complete defense as recognized in Holmes v. South Carolina, 547 U.S. 319 (2006), or, alternatively, that White=s statement was admissible through Gomez=s hearsay testimony as a statement against interest under Texas Rule of Evidence 803(24).
In the hearing on the admissibility of the evidence, Gomez testified that White came to appellant=s and Gomez=s hotel room just after 10:00 on the night of the murder. She stated White borrowed the pistol used to kill Harris, and returned with it after midnight. The trial court admitted this portion of her testimony and also allowed her to testify that White was dazed when he returned. However, the trial court found the following hearsay testimony inadmissible:
[Defense Counsel]: When [White] came back with the gun, did he say anything to you about what he had done with it?
[Gomez]: Yes, sir.
[Defense Counsel]: What did he tell you about what he had done with it?
[Gomez]: He told me that he hopes Mr. Harris ain=t dead.
[Defense Counsel]: Did he say anything else about the circumstances around what happened to Mr. Harris?
[Gomez]: No, he told me that he didn=t know there was a bullet in the chamber.
[Defense Counsel]:Of the gun?
[Gomez]: Yes, sir.
[Defense Counsel]: He indicated to you that it was an accident, basically?
[Gomez]: Yes, sir.
[Defense Counsel]: Did he say anything else to you about what he had done with the gun or what had happened that night?
[Gomez]: No, he just basically laid on the bed, and he said that he didn=t know that there was a bullet in the chamber, and that he hopes Mr. Harris ain=t dead, and that can I take him out of town.
[Defense Counsel]: Can who take him out of town?
[Gomez]: Me and Zek.
[Defense Counsel]: Mr. White indicated to you that he wanted to get out of Houston?
[Gomez]: Yes, sir.
The trial court determined that White=s alleged statement to Gomez appeared untrustworthy for Aseveral reasons,@ specifically noting that the trial court was aware that White had witnesses who would state he was somewhere else at the time of the murder. The actual testimony in that regard does not appear in the record until after the trial court=s ruling. It consists of White=s grandmother=s testimony that she made sure White did not go anywhere that evening because he was intoxicated, but that he was awakened by a call from Gomez between midnight and 1:00 a.m. and left one or two hours later.
A. Admissibility of Gomez=s Testimony under Rule of Evidence 803(24)
Appellant contends that White=s statement was admissible through Gomez=s hearsay testimony as a statement against interest under Texas Rule of Evidence 803(24). We review a trial court=s exclusion of hearsay testimony under Rule 803(24) for an abuse of discretion. Bingham v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999). Under that standard, we will not reverse the trial court=s ruling if it is within the zone of reasonable disagreement. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). In our review, we consider only what was before the trial court at the time of its ruling because the ruling was based on it rather than what was introduced later. See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
Determining the admissibility of a hearsay statement under Rule 803(24) requires a two‑step inquiry. Bingham, 987 S.W.2d at 57. First, the trial court must determine whether the statement in question tends to expose the declarant to criminal liability. Id. The State concedes the satisfaction of that prong here. Second, the trial court must determine if there are corroborating circumstances that clearly indicate the statement=s trustworthiness. Id. The focus of this inquiry should be on verifying the statement=s trustworthiness so as to avoid the admissibility of a fabrication. Id. at 58. When conducting this inquiry, any number of factors may be considered, including whether the declarant=s guilt is inconsistent with the accused=s guilt, whether the declarant was so situated that he might have committed the crime, the declaration=s timing and spontaneity, the relationship between the declarant and the party to whom the declaration was made, and the existence of independent corroborating facts. Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994). Further, evidence that undermines the reliability of the statement as well as evidence corroborating its trustworthiness may be considered, so long as the court is careful not to engage in a weighing of the credibility of the in-court witness. Id. The burden lies with the party seeking to admit the statement, and the test is not an easy one: the evidence of corroborating circumstances must clearly indicate trustworthiness. Id. (emphasis in original).
Here, appellant argues that White=s statement to Gomez was reliable because it was made soon after the murder and because his statement that it was an Aaccident@ was consistent with the firearms examiner=s testimony that the grip safety on the murder weapon did not have to be depressed to fire it. However, consideration of the other Davis factors shows that the trial court did not abuse its discretion in ruling Gomez=s hearsay testimony inadmissible under Rule 803(24).
For instance, appellant did not demonstrate that White=s guilt is inconsistent with his guilt. See id.; Lester v. State, 120 S.W.3d 897, 901 (Tex. App.CTexarkana 2003, no pet.). Johnson identified appellant as the person leaving his yard just after the murder. It is unclear from White=s statement to Gomez whether he was admitting to being the shooter. Therefore, in light of Johnson=s testimony, Gomez=s hearsay testimony did not rule out the possibility that appellant was actually the shooter and that White was merely inculpating himself as a party. The trial court was also confronted with White=s inculpatory affidavit and Loper=s testimony that White admitted being the shooter. Although this evidence, by itself, supports a finding that White=s guilt was inconsistent with appellant=s, there was evidence before the trial court that White subsequently recanted that admission and claimed he was forced to sign the affidavit. Therefore, the trial court could have disregarded those later statements and determined that White=s statements to Gomez did not render his guilt inconsistent with appellant=s guilt because White could have merely been implicating himself as a party. Cf. Lester, 120 S.W.3d at 901 (evidence showed that if declarant=s confession to his mother were believed, he, and not anyone else, committed the charged offense). Likewise, in making its ruling, the trial court noted that White had witnesses placing him somewhere else at the time of the shooting, suggesting that White was not so situated that he might have committed the crime. Davis, 872 S.W.2d at 749; Lester, 120 S.W.3d at 901. Therefore, this factor also weighs in favor of the trial court=s ruling.
Though the declaration=s timing weighs in favor of its trustworthiness, the trial court could reasonably have questioned its spontaneity. The evidence that appellant was at the scene of the murder and the statement in Loper=s motion to withdraw that appellant recanted his statement and was forced to sign the affidavit left open the possibility that appellant may also have coerced White to make the statements to Gomez before White returned to the hotel room.
The relationship between White and Gomez allows conflicting inferences as to the trustworthiness of his statement. This factor weighs against the statement=s trustworthiness where the declarant had a motive to lie or shift blame at the time the statement is made. See Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004) (finding statement trustworthy where declarant made it to friends without any motive to shift blame or minimize involvement); Lester, 120 S.W.3d at 901B02 (finding declarant=s statement trustworthy where it was made to his mother, to whom he talked about Aeverything,@ which showed that declarant had no motive to lie or shift blame). On one hand, White had a reason to confide in Gomez given that he allegedly borrowed the gun from her a few hours before making the statement. On the other hand, if appellant was the shooter and White was merely a party, White may have had a motive to leave his statement to Gomez ambiguous as to who the shooter was to avoid upsetting her with the news that her longtime boyfriend had just shot someone. Indeed, Johnson=s identification of appellant and the ambiguity in White=s statement to Gomez as to whether White was implicating himself as a party or as the shooter left open the possibility that White made the statement with such a motive. Moreover, given the evidence that appellant was at the scene and Loper=s statement that White claimed to have been coerced to make inculpatory statements in jail, the trial court could have reasonably suspected that White=s statements to Gomez immediately after the shooting were also the product of intimidation. Therefore, under either rationale, the trial court was entitled to rely on the possibility that White had a motive to lie in finding his statement untrustworthy and ruling Gomez=s testimony inadmissible.
Finally, although White=s affidavit and statement to Loper independently corroborate his statement to Gomez, White=s subsequent recantation and claim of coercion undermined the corroborative nature of those facts. Though Butler testified that he saw White in the hotel room several hours after the murder, his testimony was not inconsistent with the evidence that White was elsewhere at the time of the murder. That evidence and Johnson=s identification of appellant undermine the statement=s reliability. Having reviewed the trial court=s decision in light of the Davis factors, we believe that its ruling that the statement was untrustworthy and therefore inadmissible was within the zone of reasonable disagreement. Therefore, we conclude the trial court did not abuse its discretion. Manning, 114 S.W.3d at 926.
But even if we assume that the trial court wrongfully excluded Gomez=s hearsay testimony, that error was harmless. Such error would be non‑constitutional in nature as it involved neither (1) a state evidentiary rule categorically and arbitrarily prohibiting the defendant from offering relevant evidence that is vital to his defense nor (2) a trial court=s erroneous exclusion of vital, relevant evidence that effectively precluded the defendant from presenting a defense.[1] See Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005). We must disregard non‑constitutional error that does not affect the defendant=s substantial rights. Tex. R. App. P. 44.2(b). Nonconstitutional error in the exclusion of evidence is harmless if, after examining the record as a whole, we are fairly assured that the error did not influence the jury or had but a slight effect. Ray, 178 S.W.3d at 836. 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. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). 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. at 355B56. We have also recognized that whether the State emphasized the error can be a factor. Id. at 356.
Despite the exclusion of White=s statements to Gomez, appellant was able to present the jury with substantial other evidence inculpating White. Gomez testified that White borrowed the gun shortly before the murder, returned it after the murder, and seemed Adazed@ at that time. Butler testified that White was in appellant=s hotel room several hours after the murder. White implicated himself and exculpated appellant in his affidavit, and admitted to Loper that he, and not appellant, was holding the gun when it went off. Thus, despite the exclusion of Gomez=s hearsay testimony, the defense was left with substantial corroborating evidence lending independent credibility to appellant=s defensive theory that White was the shooter. Cf. Ray, 178 S.W.3d at 836 (finding error harmful where defendant was left with only her own self‑serving testimony after exclusion of evidence which would have corroborated and given independent credibility to her defensive theory). Also, this evidence allowed defense counsel to argue extensively in closing arguments that White was the actual shooter.
The verdict was supported by evidence that (1) appellant coerced White into making the affidavit, (2) White was at his grandmother=s house at the time of the murder, (3) appellant left his hotel room shortly before the murder and returned shortly afterwards, (4) appellant=s gun fired the bullet that killed Harris, and (5) Johnson identified appellant as the man leaving his yard just after the murder, but did not see White at the scene. The jury also heard a recording of appellant stating that he had told someone to Atake the case,@ and had coaxed that person to do so by Apraying on him@ and stating AI did it for you.@ Thus, there was strong circumstantial evidence supporting the jury=s verdict. Finally, the State did not emphasize the error.
Having reviewed the record as a whole, we are fairly assured that any error by the trial court in excluding White=s statements to Gomez did not influence the jury or had but a slight effect, and was therefore harmless. See id.
B. Right to Present a Complete Defense
Appellant also contends that excluding Gomez=s hearsay testimony violated his fundamental right to present a complete defense as articulated in Holmes v. South Carolina, 547 U.S. 319, 324 (2006). Appellant has waived this argument on appeal by not first presenting it to the trial court. See Tex. R. App. P. 33.1(a); Reyna v. State, 168 S.W.3d 173, 176B79 (Tex. Crim. App. 2005) (stating that failure to present a particular argument to the trial court in support of the admission of excluded evidence waives that argument for appeal); see also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding appellant=s failure to argue in the trial court that he was denied right to present a defense and right to due process or course of law in violation of federal and state constitutions waived those arguments on appeal); Ruiz v. State, No. 14-05-00757-CR, 2007 WL 2239289, at *4 (Tex. App.CHouston [14th Dist.] Aug. 7, 2007, pet. ref=d) (mem.op., not designated for publication) (holding that argument under Holmes that defendant was prevented from presenting complete defense due to exclusion of evidence was waived through non-preservation).
However, even if appellant had preserved this argument for our review, it is without merit. In Holmes, the Court held that while state and federal rulemakers have broad constitutional latitude to establish rules excluding evidence from criminal trials, the Constitution limits that power by guaranteeing criminal defendants a meaningful opportunity to present a complete defense. 547 U.S. at 324. However, there is no constitutional right for a defendant to present all favorable evidence. Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim. App. 2002) (citing United States v. Scheffer, 523 U.S. 303, 316 (1998)). Holmes prohibits excluding defense evidence under evidentiary rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve. Holmes, 547 U.S. at 324 (citing United States v. Scheffer, 523 U.S. 303, 308 (1998)). AArbitrary@ rules are those that exclude important defense evidence but do not serve any legitimate interests. Id. at 325. A rule ensuring that only reliable evidence is presented at trial serves a legitimate interest and does not unconstitutionally abridge the right to present a defense. See United States v. Scheffer, 523 U.S. 303, 309 (1998).
Here, the trial court excluded Gomez=s hearsay testimony because it found White=s statement untrustworthy based on the standard articulated in Davis for determining the trustworthiness of a statement against interest offered under Rule 803(24) of the Texas Rules of Evidence. Davis, 872 S.W.2d at 749. The Davis inquiry is meant to ensure that only reliable evidence is admitted under Rule 803(24); its focus is on determining the trustworthiness of such statements so as to avoid the admissibility of a fabrication. See Walter v. State, 267 S.W.3d 883, 891 n.27 (Tex. Crim. App. 2008). Moreover, the Davis inquiry calls for a consideration of the evidence that undermines the reliability of the offered statement as well as evidence corroborating its trustworthiness, unlike the rule proscribed in Holmes, which called for a determination of the admissibility of third-party guilt evidence offered by the defendant by focusing solely on the strength of the inculpatory evidence against the defendant without also evaluating the strength of the third-party guilt evidence offered by the defense. Holmes, 547 U.S. at 329B331; Davis, 872 S.W.2d at 749. Therefore, neither Rule 803(24) nor the Davis standard used to determine the admissibility of statements offered under that rule fall into the category of rules proscribed in Holmes. See Holmes, 547 U.S. at 324; Scheffer, 523 U.S. at 309.
We overrule appellant=s second issue.
III. Trial Court=s Voir Dire Comments Regarding Reasonable Doubt
In his first issue, appellant contends that the trial court erred by instructing the jury on the meaning of Aproof beyond a reasonable doubt@ during voir dire. During voir dire, the trial judge said that reasonable doubt is Awhat [the jurors] believe it to be,@ and then stated as follows:
Now the Charge will tell you it=s not beyond all possible doubt, but that=s kind of where it leaves you hanging. I can give you some suggestions, you can take them and leave them. They are what I have talked to some people that I respect as far as their opinion of things, but then, again, it=s going to be decided by what you believe it to be. I=ve heard people tell me that it=s something you know in your heart. It=s a decision that you know in your heart. I=ve heard other people say it=s a gut feeling. I know in my gut that this is true. I=ve heard other people say that it=s an intellectual exercise based on logic, common sense, careful consideration of all the evidence. I will submit to you folks, it=s probably a combination of all three. But ultimately you must decide what you believe it to be. So I=ve got two questions along this line: [f]irst, knowing yourself, can you determine what beyond a reasonable doubt means to you?
Appellant did not object to the trial court=s comments. Therefore, he has not preserved this issue for appellate review. See Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (finding that appellant=s failure to object waived complaint about trial court=s explanation of reasonable doubt given to venire panel as belief in one=s heart and conscience based upon an evaluation of the evidence).
Appellant also relies on Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.), in which a trial judge=s unobjected-to comments regarding a defendant=s failure to accept a plea bargain tainted the presumption of innocence and amounted to fundamental error. Because there is no majority opinion in Blue, it is not binding precedent. See Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999). Even if Blue were binding, it would not affect our analysis. As Judge Keasler=s concurring opinion in Blue indicates, the trial court=s remarks in Blue reasonably could be interpreted as a predetermination of Blue=s guilt, thus implicating the right to an impartial trial court. See Blue, 41 S.W.3d at 135B39 (Keasler, J., concurring). The trial court=s comments in this case are not of that nature. Therefore, even if Blue were binding precedent it would not apply to this case. See Jasper v. State, 61 S.W.3d 413, 420B21 (Tex. Crim. App. 2001); Blue, 41 S.W.3d at 129B35.
Finally, appellant argues that voir dire comments like those at issue here function as jury instructions on the burden of proof and should be governed by Almanza, which requires the reversal of cases where unobjected‑to jury charge error results in egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). However, appellant offers no binding authority to support this argument. See Tex. R. App. P. 38.1(h); Zachery v. State, No. 14‑07‑01050‑CR, 2009 WL 136915, at *2 n.2 (Tex. App.CHouston [14th Dist.] Jan. 20, 2009, no pet.) (mem. op., not designated for publication) (rejecting this argument and noting that no binding caselaw was cited in support). We decline to accept this proposition. See Robertson v. State, No. 01‑02‑00046‑CR, 2002 WL 31236391, at *3 (Tex. App.CHouston [1st Dist.] Oct. 3, 2002, no pet.) (not designated for publication) (rejecting this argument where error was not fundamental error such as that involved in Blue). We overrule appellant=s first issue.
Having overruled both of appellant=s issues, we affirm the trial court=s judgment.
/s/ Leslie B. Yates
Justice
Panel consists of Chief Justice Hedges and Justices Yates and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] As discussed below, appellant was allowed to present his defense that White was the actual perpetrator through White=s affidavit and Loper=s testimony. See Walters v. State, 247 S.W.3d 204, 221B22 (Tex. Crim. App. 2007).