ACCEPTED
06-14-00174-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/22/2015 10:15:02 PM
No. 06-14-00174-CR DEBBIE AUTREY
Trial Court No. 14F0004-005 CLERK
IN THE COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
6th COURT OF APPEALS
AT TEXARKANA, TEXAS TEXARKANA, TEXAS
7/23/2015 8:46:00 AM
Roderick Beham, DEBBIE AUTREY
Appellant
Clerk
v.
The State of Texas, State
Appealed from the 5th Judicial District Court
Bowie County, Texas
BRIEF FOR THE STATE
The State Does Not Request Oral Argument
Respectfully submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
By: Lauren N. Sutton
Assistant District Attorney
601 Main Street
Texarkana, Texas 75501
Texas Bar No. 24079421
Attorneys for the State
In The Court of Appeals
For the Sixth Supreme Judicial District
At Texarkana, Texas
Roderick Beham, §
Appellant §
§ No. 06-14-00174-CR
v. §
§
The State of Texas, § BRIEF FOR THE STATE
State §
§
Identity of the Parties
The following is a complete list of all the parties to the trial court’s judgment
as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate
Procedure:
1. Defendant and Appellant:
Roderick Beham
2. Attorneys for Appellant on appeal:
Alwin A. Smith
Attorney at Law
Texas Bar No. 18532200
602 Pine Street
Texarkana, Texas 75501
Garret Smith
Texas Bar No. 240884226
Attorney at Law
1616 Falcon Ridge Blvd.
Friendswood, Texas 77546
i
3. Attorneys for Appellant at trial:
Chad Crowl
Bowie County Public Defender’s Office
4. Attorney for the State of Texas at trial:
Samantha Oglesby
Kelley Crisp
Assistant District Attorneys
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
5. Attorney for the State of Texas on appeal:
Lauren N. Richards
Assistant District Attorney
Texas Bar No. 24079421
601 Main Street
Texarkana, Texas 75501
6. Presiding Judge at trial:
The Honorable Ralph Burgess
District Court Judge
5th Judicial District
Bowie County, Texas
Bi-State Justice Building
100 North State Line Avenue
Texarkana, Texas 75501
ii
Table of Contents
Identity of the Parties and Counsel ......................................................................... i-ii
Table of Contents ..................................................................................................... iii
Index of Authorities ............................................................................................. iv-vi
Statement of the Case................................................................................................. 1
Reply to Points of Error ............................................................................................. 2
Argument.............................................................................................................. 3-22
Reply to Point of Error Number One and Two
The trial court did not err in denying the Appellant’s motion to
suppress.
Reply to Point of Error Number Three
The trial court did not err in excluding evidence of what type of
offense for which the witness was on probation.
Reply to Point of Error Number Four and Five ......................................
The trial court did not err by allowing the introduction of
extraneous offenses and bad acts.
iii
Prayer for Relief ....................................................................................................... 23
Certificate of Compliance ........................................................................................ 24
Certificate of Service ............................................................................................... 25
iv
Index of Authorities
Cases
Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996)...................................... 13
Carpenter v. State, 979 S.W.2d 633 (Tex. Crim. App. 1998) ................................. 15
Davis v. United States, 512 U.S. 452 (1994) ......................................................5,6, 8
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)................................. 18
Delao v. State, 235 S.W.3d 235 (Tex. Crim. App. 2007) .......................................... 4
Delaware v. Van Arsdall, 475 U.S. 673 (1986) .................................................13, 16
Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)...................................... 5
Goodwin v. State, 91 S.W.3d 912 (Tex. App—Fort Worth 2002, no pet.) ......12, 18
Graves v. State, 307 S.W.3d 483 (Tex. App.—Texarkana 2010, pet. ref’d) ........... 3
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ....................................... 3
Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009).................................... 13
Hardesty v. State, 667 S.W.2d 130 (Tex. Crim. App. 1984) ..................................... 3
In re D.J.C., 312 S.W.3d 704 (Tex. App. – Houston [1st Dist.] 2009, no pet.) ........ 4
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) .................................... 21
Lincicome v. State, 3 S.W.3d 644 (Tex. App.—Amarillo 1999, no pet.)......... 12, 18
Love v. State, 861 S.W.2d 899 (Tex. Crim. App. 1993) ....................................10, 12
Lucas v. State, 791 S.W.2d 35 (Tex. Crim. App. 1989) ............................................ 7
Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006) ..................................... 5
v
Matz v. State, 21 S.W.3d 911, 912(Tex. App.—Fort Worth 2000) ......................... 21
Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009) ......................................... 11
McDaniel v. State, 3 S.W.3d 176 (Tex. App.—Fort Worth 1999, pet. ref’d) ......... 12
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) ................................. 9
Miranda v. Arizona, 384 U.S. 436 (1966) ............................................................. 4, 6
Mitchell v. State, 931 S.W.2d 950 (Tex.Crim.App.1996) ....................................... 19
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .......................12, 17
Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) ...................................... 21
Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002) ......................... 21
Phelps v. State, 999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d) .........12, 18
Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996) ....................................... 3
Ramos v. State, 245 S.W.3d 410 (Tex. Crim. App. 2008)...................................... 4,5
Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002) ...................................... 18
Robinson v. State, 35 S.W.3d 257 (Tex. App.—Texarkana 2000, pet. ref’d) ...12, 18
Rogers v. State, 291 S.W.3d 148 (Tex. App.—Texarkana 2009, pet. ref’d) ............. 3
Sherman v. State, 20 S.W.3d 841, 847 (Tex. App.—Texarkana 2000, no pet.)...... 12
Shugart v. State, 32 S.W.3d 355 (Tex. App.—Waco 2000, pet. ref’d) ................... 21
Taylor v. State, 93 S.W.3d 487 (Tex. App—Texarkana 2002, pet. ref’d.) .......12, 18
Thompson v. State, 4 S.W.3d 884 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd)19
Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996) .................................... 3
vi
Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)...........................12, 18
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000) ........................... 21
Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) ................................12, 18
Wilder v. State, 111 S.W.3d 249 (Tex. App.—Texarkana 2003, pet. ref’d) ........... 17
Williams v. State, 257 S.W.3d 426, 432 (Tex. App.-Austin 2008, pet ref'd) ............ 4
Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010) ........................................ 3
United States Consitution
U.S. Constitutional Amendment V ............................................................................ 4
U.S. Constitutional Amendment VI ........................................................................... 9
Rules of Appellate Procedure
Tex. R. App. Proc. 44.2(b) ....................................................................................... 20
Rules of Evidence
Tex. R. Evid. 611(b)................................................................................................. 12
Texas Code of Criminal Procedure
Tex. Code Crim. Proc. art. 37.07 § 3 ..................................................................18,19
vii
Statement of the Case
Appellant, Roderick Beham, was convicted by a jury of aggravated robbery
in the 5th Judicial District Court of Bowie County, Texas, the Honorable Ralph
Burgess presiding. The jury assessed punishment at twenty-five (25) years in the
Institutional Division of the Department of Criminal Justice, and the Judge
sentenced the Appellant accordingly. Appellant then perfected appeal to this
Honorable Court. He now appeals the verdict of the trial court on five points of
error.
1
Reply to Points of Error
REPLY TO POINT OF ERROR NUMBER ONE AND TWO:
The trial court did not err in denying the Appellant’s motion to
suppress.
REPLY TO POINT OF ERROR NUMBER THREE:
The trial court did not err in excluding evidence of what type of
offense for which the witness was on probation.
REPLY TO POINT OF ERROR NUMBER FOUR AND FIVE:
The trial court did not err by allowing the introduction of extraneous
offenses and bad acts.
2
Argument
Reply to Points of Error One and Two
The trial court did not err in denying the Appellant’s motion to
suppress.
The State will reply to Appellant’s first and second points of error jointly, as
Appellant’s brief also consolidated the two points of error.
Argument and Authorities
A. Standard of Review
A trial court’s ruling on a motion to suppress is analyzed using a bifurcated
standard of review.1 Although almost total deference is given to the trial court’s
determination of historical facts and credibility, a review of the trial court’s
application of the law and determination on the questions not turning on credibility
is reviewed de novo.2 Generally, reviewing courts consider only the evidence
adduced during the suppression hearing because the trial court’s ruling was based
on that evidence alone rather than evidence presented later at trial.3 However, this
rule is inapplicable where the suppression issue has been re-litigated by the parties
during trial on the merits.4
1
Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref’d); Rogers v. State,
291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref’d); Wilson v. State, 311 S.W.3d 452,
457-58 (Tex. Crim. App. 2010).
2
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d
134, 138 (Tex. Crim. App. 1996); Wilson, 311 S.W.3d at 458.
3
Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
4
See, e.g., Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984).
3
At a hearing on a motion to suppress, the trial court is the sole and exclusive
trier of fact and judge of the credibility of the witnesses and the evidence. 5 The
evidence is examined in a light most favorable to the trial court’s ruling.6 A
reviewing court must uphold a trial court’s ruling on a motion to suppress if it is
supported by the record and correct under any theory of law applicable to the case.7
B. Application of Law to Facts
The Fifth Amendment to the United States Constitution provides that “[n]o
person ... shall be compelled in any criminal case to be a witness against
himself.”8 Law enforcement officials, before questioning a person in custody, must
inform him that he has the right to remain silent and that any statement he makes
ma be used against him in court.9 “The right to terminate questioning is among the
procedural safeguards that Miranda establishes” to protect the Fifth Amendment
right to remain silent.10 This right requires police officers to immediately terminate
questioning when a suspect “indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent.”11 The suspect is not required to use
5
Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007).
6
Id.
7
In re D.J.C., 312 S.W.3d 704, 711 (Tex. App. – Houston [1st Dist.] 2009, no pet.) (citing State
v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008)).
8
U.S. Const. amend. V.
9
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
10
Williams v. State, 257 S.W.3d 426, 432 (Tex. App.-Austin 2008, pet ref'd). This
11
Ramos v. State, 245 S.W.3d 410,418(Tex. Crim. App. 2008) (quoting Miranda, 384 U.S. at
473–74).
4
any particular phraseology to invoke the right to remain silent.12 Any declaration of
a desire to terminate the questioning should suffice.13 A law enforcement officer
may not continue to question the suspect until the officer succeeds in persuading
the suspect to change his mind and talk.14
However, an interrogating officer is not required to terminate his questioning
unless the suspect's invocation of rights is unambiguous.15 “If the suspect's
statement is not an unambiguous or unequivocal request [to terminate the interview
or to invoke the right to silence], the officers have no obligation to stop questioning
him.”16 A police officer is permitted, but not required, to clarify a suspect's wishes
when faced with an ambiguous invocation of the right to remain silent.17
In determining whether the right to remain silent was unambiguously
invoked, courts look at the totality of the circumstances.18 Ambiguity exists when
the suspect's statement is subject to more than one reasonable interpretation under
the circumstances.19
12
Ramos, 245 S.W.3d at 418.
13
Id.
14
Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996).
15
Ramos, 245 S.W.3d at 418 (citing Dowthitt, 931 S.W.2d at 257).
16
Davis v. United States, 512 U.S. 452, 461–62 (1994).
17
Marshall v. State, 210 S.W.3d 618, 628 (Tex. Crim. App. 2006) (citing Davis, 512 U.S. at
461–62).
18
Williams, 257 S.W.3d at 433.
19
Id. at 433–34.
5
Miranda v. Arizona requires that suspects in custody be informed before
questioning begins of their right to consult with an attorney. 20 If a suspect invokes
that right, there can be no further interrogation unless the accused initiates it. If
Miranda warnings are not given or a request for counsel is ignored, any
subsequent statements by the suspect cannot be introduced at trial during the
prosecution's case-in-chief.
In Davis v. United States21, the United States Supreme Court established a
“bright line” between suspects who might be asking for a lawyer and those who
actually do ask for one, holding that only the latter have invoked their right
to counsel:
“To avoid difficulties of proof and to provide guidance to
officers conducting interrogations, this is an objective
inquiry. Invocation of the Miranda right to counsel requires, at a
minimum, some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney. But if a
suspect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be invoking the
right to counsel, our precedents do not require the cessation of
questioning. Rather, the suspect must unambiguously
request counsel. As we have observed, a statement either is such an
assertion of the right to counsel or it is not. Although a suspect need
not speak with the discrimination of an Oxford don, he must articulate
his desire to have counsel present sufficiently clearly that a reasonable
police officer in the circumstances would understand the statement to
be a request for an attorney.”22
20
384 U.S. 436, 469-70 (1966); see U.S. Const. amend. V.
21
512 U.S. 452 (1994).
22
Id.
6
Police may continue to question an accused after an unclear
or ambiguous invocation of the right to counsel only to ascertain “whether the
accused indeed wants to consult with counsel or wishes to proceed with the
interview without benefit of counsel.”23
Prior to trial, the Appellant filed a Motion to Suppress Oral Statements of
Defendant. (C.R. P. 51). Prior to jury selection, the trail court took up the
Appellant’s Motion to Suppress. (R.R. Vol. 2, p. 12). The court took the recorded
statement for review in camera and then heard arguments from both sides as to the
admissibility of the Appellant’s recorded statement. (R.R. Vol. 2, p. 15-21).
The trial court reasoned that Appellant’s statement at 2:25 in the recording
that he wanted to “see what you’ve got to say first,” clearly indicated that he was
not invoking his right to counsel. (R.R. Vol. 2, p. 22). The court stated, “[h]e
wanted to see what the officer had to say first before he invoked his right to
counsel and that’s when the conversation began and continued, so I find that it was
a voluntary conversation.” (R.R. Vol. 2, p. 22). The trial court ruled that the
statement was not in violation of the Appellant’s Fifth Amendment rights.
23
Lucas v. State, 791 S.W.2d 35, 46 (Tex. Crim. App. 1989), vacated on other grounds, 509
U.S. 918 (1993).
7
The recorded conversation has the Appellant making statements such as “I
was going to try to see if I could get a lawyer,” “my Pops told me to get a lawyer,
he had a lawyer for me,” and “I don’t want to talk to the lawyer, see what’s going
on.” Due to the Appellant mumbling some of those statements, there was
disagreement at the hearing, and still again disagreement on appeal, between
Appellant and the State as to the exact wording of those statements. Due to the lack
of clarity with which the Appellant was speaking, Detective Giddens continued to
talk with the Appellant to clarify his desires and ascertain whether he wanted to
waive his rights and speak with him. Giddens also reminded the Appellant if he
wished to terminate the interview at any time, he was free to do so. A Detective is
allowed to clarify an ambiguous request for an attorney.24
In the present case, the Appellant’s statements are subject to more than one
reasonable interpretation under the circumstances. There was back and forth
conversation between the Appellant and Detective Giddens. Appellant made the
statement, ‘I want to talk but I don’t want a—I want a lawyer—I want to see …,’
among other equivocal statements. (State’s Record Exhibit 1).
As Detective Giddens proceeds to attempt to clarify whether the Appellant is
waiving his rights, the Appellant ultimately says, “I want to see what you’ve got to
say first” to the officer. The Appellant was not being interrogated at this point in
24
Davis, 512 U.S. at 453.
8
the conversation. It was reasonable for the detective to interpret this statement as
the Appellant wished to see what the officer had to say before invoking his right to
counsel or right to remain silent.
The trial court did not err in admitting Appellant’s statement. Here, the trial
court’s conclusion that Appellant’s rights were not violated was based on it’s own
evaluation of the recorded statement, and it was not error to deny Appellant’s
Motion to Suppress.
In regards to an accused’s Sixth Amendment right, the right to
assistance of counsel does not attach prior to the initiation of adversarial judicial
proceedings, which may be initiated by way of formal charge, preliminary hearing,
indictment, information, or arraignment.25 For purposes of determining when Sixth
Amendment right to counsel attaches, examples of actions which mark initiation of
formal adversarial proceedings include filing indictment, filing information and
complaint, arraignment, and warning hearing before magistrate as to defendant's
rights.26 In this case, at the time of the interview, the Appellant had been arrested in
Little River County, Arkansas when Detective Giddens arrived to speak with him.
(R.R. Vol. 4, p. 66-67). Because adversarial judicial proceedings had not yet been
initiated, the Appellant’s Sixth Amendment right had not yet attached. Because the
25
U.S. Const. amend. VI
26
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996).
9
Sixth Amendment right to counsel had not attached, it was not violated by
Detective Gidden’s questions.
For these reasons, Appellant’s first and second points of error should be
overruled.
Reply to Point of Error Three
The trial court did not err in excluding evidence of what type of
offense for which the witness was on probation.
Argument and Authorities
Appellant challenges the trial court's ruling on its attempted cross-
examination of the State’s witness, arguing that defense counsel sought to elicit
relevant and admissible testimony not prohibited by an established evidentiary
rule. Although Appellant mentions in his argument summary it was a violation of
his right to confront witnesses, and briefs this issue with a focus on his
constitutional right to cross-examination, it should be interpreted his complaint as
alleged error in the exclusion of evidence.27
In order to preserve error regarding a trial court's decision to
exclude evidence, the complaining party must comply with Texas Rule of
27
See Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App.1993)(interpreting complaint that
trial court refused to allow defense counsel to recall witness for further cross-examination as
being predicated on exclusion of evidence).
10
Evidence 103 by making an “offer of proof” which sets forth the substance of the
proffered evidence.28 The offer of proof may consist of a concise statement by
counsel, or it may be in question and answer form. 29 If in the form of a statement,
the proffer “must include a reasonably specific summary of the evidence offered
and must state the relevance of the evidence unless the relevance is apparent, so
that the court can determine whether the evidence is relevant and admissible.”30 A
summary in most general and cursory terms, without any of the substance of the
actual evidence will not suffice to preserve error.31
Appellant stated to the trial court that he wished to question Arneshia Hall
that he was on probation for a weapons charge that, “[t]he fact that she was gone
on probation and has an opportunity to go to her probation officer and tell him
what happened.” (R.R. Vol. 4, p. 54).
After the trial court sustained the State’s Rule 403 objection to that evidence,
the defense failed to request to make an offer of proof as to the testimony it wanted
admitted.
On appeal, the Appellant complains he was unable to properly cross-
examine the witness demonstrating alleged bias. It is the State’s position that the
statements made by defense at trial do not make it apparent what the substance of
28
Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009).
29
Id.
30
Id. at 889-90(quoting Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998)(per curiam)).
31
Id. at 891.
11
the testimony was that the Appellant sought to introduce. Without a proper offer of
proof as to the substance of the testimony, it would be mere speculation as to the
nature of the excluded testimony. For these reasons, the Appellant has not
preserved this point of error for review.
A. Standard of Review
A trial court has considerable discretion in determining whether to admit or
exclude evidence.32 When considering whether a trial court’s decision to admit or
exclude evidence is error, an appellate court must determine whether the trial court
abused that discretion.33 This inquiry depends on the facts of each case.34 An abuse
of discretion occurs only when the trial court acts arbitrarily or unreasonably
without reference to any guiding rules or principles.35 Even if the reviewing court
might have reached a different result, the court must uphold the trial court’s
decision to admit or exclude evidence if it was within the “zone of reasonable
disagreement.”36
32
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990 (op. on reh’g); McDaniel v.
State, 3 S.W.3d 176, 180 (Tex. App.—Fort Worth 1999, pet. ref’d).
33
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d).
34
Love v. State, 861 S.W.2d 899, 904 (Tex. Crim. App. 1993); Sherman v. State, 20 S.W.3d 841,
847 (Tex. App.—Texarkana 2000, no pet.).
35
Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d); see Montgomery, 810 S.W.2d at 372.
36
Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Montgomery, 810
S.W.2d at 391); Weatherred, 15 S.W.3d at 542; Taylor v. State, 93 S.W.3d 487, 505-506 (Tex.
App—Texarkana 2002, pet. ref’d.); Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App—Fort
Worth 2002, no pet.).
12
The scope of cross-examination is broad and extends to facts that may affect
the witness’ credibility.37 A defendant is entitled to pursue all avenues of cross-
examination reasonable calculated to expose a motive, bias, or interest for the
witness to testify.38 However, the scope of appropriate cross-examination is not
unlimited, and the trial court generally had “wide discretion in limiting the scope
and extent of cross-examination.”39 For example, a trial court may properly limit
the scope of cross-examination to prevent harassment, prejudice, confusion of the
issues, harm to the witness, and repetitive or marginally relevant interrogation.40
B. Application of Law to Facts
At trial, the codefendant Arneisha Hall testified that in exchange for
testifying truthfully at Appellant’s trial, she pled guilty to robbery and received a
fifteen year sentence. (R.R. Vol. 4, p. 42).
On cross-examination, Ms. Hall testified that she initially denied all
involvement with the robbery to detectives and told multiples lies to law
enforcement. (R.R. Vol. 4, p. 52-53). The following exchange drew objection from
the State,
DEFENSE: Okay. And Ms. Hall, at the time this robbery happened, you
were on probation, weren’t you, ma’am?
37
See Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996); see also Tex. R. Evid.
611(b).
38
Carroll, 916 S.W.2d at 497.
39
Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009); Carroll, 916 S.W.2d at 498.
40
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Carroll, 916 S.W.2d at 498.
13
WITNESS: Yes, sir.
DEFENSE: And you were on probation for weapons charges, correct?
WITNESS: Yes, sir.
STATE: Objection,Your Honor. May we approach?
(R.R. Vol. 4, p. 53).
After a hearing at the bench, the trial court sustained the State’s objection
and instructed the jury to “disregard the last answer of the witness and give it no
weight or consideration in your deliberations.” (R.R. Vol. 4, p. 54). Therefore, the
only question and answer excluded by the trial court was that the offense for which
Ms. Hall was on probation for was a weapons charge. The question and answer
that Ms. Hall was on probation when the robbery happened was not excluded by
the trial court.
Appellate now complains that such testimony should have been allowed
because “[i]nquiry into her probation on the weapons charges could have been
brought to light new evidence with regard to who actually brought the gun.”
Additionally, he argues bias could have also been demonstrated if the witness
received any special consideration on a probation revocation. The testimony that
the witness was on probation was not excluded. The trial court did not abuse its
discretion by preventing the Appellant to go into what the charge that Ms. Hall was
on probation for.
14
Appellant relies upon Davis v. Alaska and its Texas progeny for the
proposition that any witness who is on probation may be cross-examined about that
status to show a potential bias or motive to testify for the State.
In Carpenter v. State41, the Court of Criminal Appeals held that, in the
context of cross-examination of a witness with pending charges, “[f]or the
evidence to be admissible, the proponent must establish some causal connection or
logical relationship between the pending charges and the witness' ‘vulnerable
relationship’ or potential bias or prejudice for the State, or testimony at trial.”42
That is, a “vulnerable relationship” based on a witness's pending charges or
probationary status does not hover cloud-like in the air, ready to rain down as
impeachment evidence upon any and all such witnesses. There must be some
logical connection between that “vulnerable relationship” and the witness's
potential motive for testifying as he does. Evidence that a witness is on probation,
is facing pending charges, or has a prior juvenile record is not relevant for purposes
of showing bias or a motive to testify absent some plausible connection between
that fact and the witness's testimony. In the present case, stretching the Appellant’s
argument to the trial court, the only plausible connection was that there was a gun
used during the robbery and that Ms. Hall was on probation due to a weapons
charge. That alleged connection is insufficient to create the necessary logical
41
979 S.W.2d 633 (Tex. Crim. App. 1998).
42
Id. At 634-35 & n.4.
15
connection between that “vulnerable relationship” and the witness’s potential
motive for testifying as he does. Therefore, it was not an abuse of discretion for the
trial court to limit Appellant’s cross examination of Ms. Hall.
C. Harm Analysis
Assuming, arguendo, that this court finds it was error to limit the cross-
examination of Ms. Hall, any error was harmless beyond a reasonable doubt.
When making a determination whether the alleged error did not contribute to the
conviction, a reviewing court must first assume that the damaging potential of the
cross-examination was fully realized.43 Then this court must review the entire
record and consider the following factors: (1) the importance of the witness’s
testimony in the prosecution’s case, (2) whether the testimony was cumulative, (3)
the presence or absence of evidence corroborating or contradicting the testimony of
the witness on material points, (4) the extent of cross-examination otherwise
permitted, and (5) the overall strength of the prosecution’s case.44
It is undisputed that the witness was a co-defendant in this case. While the
fact that Ms. Hall was on probation was introduced before the jury, the Appellant
complains that he was unable to further explore that she was on probation for a
weapons charge to demonstrate bias. In this case, there was video surveillance of
the Appellant implicating him in the crime and as the one who was using the
43
See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
44
Id.
16
weapon to commit the crime. Therefore, the fact that Ms. Hall had a prior weapons
charge was irrelevant to the facts of the present case. Ms. Hall was fully cross-
examined on the fact that she was given a fifteen year sentence on a lesser-
included offense of robbery and that as part of that agreement she would have to
testify against the Appellant. (R.R. Vol. 4, p. 55). Evaluating the record as a whole,
this court can have assurances the that any error in limiting the cross-examination
was harmless beyond a reasonable doubt.
For these reasons, Appellant’s third point of error should be overruled.
Reply to Point of Error Four and Five
The trial court did not err by allowing the introduction of extraneous
offenses and bad acts.
The State will reply to Appellant’s fourth and fifth points of error jointly, as
Appellant’s brief also consolidated the two points of error.
Argument and Authorities
A. Standard of Review
The trial court has wide discretion in deciding whether to admit or exclude
evidence.45 When considering whether a trial court’s decision to admit or exclude
45
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Wilder v. State, 111
S.W.3d 249, 255 (Tex. App.—Texarkana 2003, pet. ref’d).
17
evidence is error, an appellate court must determine whether the trial court abused
that discretion.46 This inquiry depends on the facts of each case.
When reviewing a trial court’s decision to admit or exclude evidence, an
appellate court must afford great deference to the trial court’s balancing
determination and should reverse a trial court “rarely and only after a clear abuse
of discretion.”47 An abuse of discretion occurs only when the trial court acts
arbitrarily or unreasonably without reference to any guiding rules or principles.48
Even if the reviewing court might have reached a different result, the court must
uphold the trial court’s decision to admit or exclude evidence if it was within the
“zone of reasonable disagreement.”49 A trial court’s evidentiary ruling must be
upheld if it was correct under any theory of law applicable to the case.50
B. Application of Law to Facts
Article 37.07, section 3(a) provides that the State may introduce “evidence
of an extraneous crime or bad act that is shown beyond a reasonable doubt by
46
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d).
47
Robbins v. State, 88 S.W.3d 256, 262 (Tex. Crim. App. 2002).
48
Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d); see Montgomery, 810 S.W.2d at 372.
49
Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Montgomery, 810
S.W.2d at 391); Weatherred, 15 S.W.3d at 542; Taylor v. State, 93 S.W.3d 487, 505-506 (Tex.
App—Texarkana 2002, pet. ref’d.); Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App—Fort
Worth 2002, no pet.).
50
De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
18
evidence to have been committed by the defendant.”51 The Court of Criminal
Appeals has made clear that the beyond-a-reasonable-doubt standard of this statute
is the same as that applied during the guilt-innocence phase.52
Appellant argues that the trial court should have made an initial finding of
proof beyond a reasonable doubt that the defendant has committed the bad act as
alleged as a prerequisite to admissibility during the punishment phase. However,
under this statute, the trial court makes a threshold determination of whether the
evidence is relevant and thus admissible.53 In conducting this inquiry, the court
determines whether “the jury could reasonably find beyond a reasonable doubt that
the defendant committed the extraneous offense.”54
At trial, the State sought to illicit testimony from Detective Giddens that the
Appellant had prior contacts with law enforcement other than the present offense.
(R.R. Vol. 5, p. 34). Those prior incidents did not result in convictions, but were
still admissible under Texas Code of Criminal Procedure article 37.07 § 3(a)(1),
which allows for “any other evidence of an extraneous crime or bad act that is
shown beyond a reasonable doubt by evidence to have been committed by the
51
Tex. Code Crim. Proc. art. 37.07 § 3(a).
52
See Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996) (“When evidence of
extraneous offenses has been offered, regardless of the respective phase of a trial, the law
requires that it be proved beyond a reasonable doubt”).
53
See Mitchell, 931 S.W.2d at 953; Thompson v. State, 4 S.W.3d 884, 886 (Tex.App.—Houston
[1st Dist.] 1999, pet. ref'd).
54
Thompson, 4 S.W.3d at 886 (citing Harrell v. State, 884 S.W.2d 154, 160–61
(Tex.Crim.App.1994))
19
defendant or for which he could be held criminally responsible, regardless of
whether he has previously been charged with or finally convicted of the crime or
bad act.”
The Appellant’s attorney objected that Detective Giddens had no personal
knowledge of the prior incidents. (R.R. Vol. 5, p.31). His objections at trial were
that the testimony violated Texas Rule of Evidence 403, the Confrontation Clause,
and was hearsay. (R.R. Vol. 5, p. 35). The trial court reviewed the evidence and
overruled the Appellant’s objections, thus making a finding the evidence was
relevant, and its prejudicial effect of the evidence did not substantially outweigh its
probative value.
Therefore, it was not error for the trial court to allow the introduction of the
evidence.
C. Harm Analysis
Should this Court find that the trial court erred by allowing introduction of
the extraneous offense evidence, such error does not constitute reversible error.
Under Rule 44.2(b) non-constitutional error must be disregarded if it does
not affect the appellant’s substantial rights.55 A substantial right is affected when
the error had a “substantial and injurious effect or influence in determining the
55
Tex. R. App. Proc. 44.2(b)
20
jury’s verdict.”56 To assess the likelihood that the jury's decision was adversely
affected by the erroneous admission of evidence, the reviewing court considers the
entire record, including the other evidence admitted, the nature of the evidence
supporting the verdict, and the character of the error in light of the other evidence
in the case.57 In a harm analysis under Rule 44.2(a), “the presence of
overwhelming evidence supporting the finding in question can be a factor in the
evaluation of harmless error.”58 The reviewing court will also consider the
arguments of counsel and the extent to which the State emphasized the improper
evidence.59
The Appellant was sentenced to twenty-five years for a first degree felony.
The punishment range for a first degree felony is 5-99 years or life in the Texas
Department of Criminal Justice. Any reasonable juror could have reasonably
sentenced the Appellant to twenty-five years based solely on the offense of
Aggravated Robbery, absent any prior bad acts or extraneous offenses.
David Bennett also testified during punishment that he works as a
correctional officer at the Bowie County Correction Center. (R.R. Vol. 5, p. 63).
Mr. Bennett testified that Beham violated the policy of the jail when he put his
56
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Johnson v. State, 967 S.W.2d
410, 417 (Tex. Crim. App. 1998); Shugart v. State, 32 S.W.3d 355, 363 (Tex. App.—Waco
2000, pet. ref’d); Matz v. State, 21 S.W.3d 911, 912(Tex. App.—Fort Worth 2000).
57
See Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002).
58
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).
59
See Motilla v. State, 78 S.W.3d at 357.
21
hands on Mr. Bennett and tried to pat him down. (R.R. Vol. 5, p. 65).Another jailer
testified that he witnessed Beham commit a major infraction while housed in the
Bowie County Correctional Center, for which the Appellant was placed in
administrative segregation. (R.R. Vol. 5, p. 74-75). Yet another jailer testified to
catching Beham stealing out of the kitchen. (R.R. Vol. 5, p. 78). Testimony was
also heard of the Appellant assaulting another inmate at the jail. (R.R. Vol. 5, p.
83). Shane Kirkland testified that the Appellant was demonstrating known gang
signs in certain photographs admitted into evidence. (R.R. Vol. 5, p. 92).
Based on a review of the evidence presented during the punishment phase,
this court can have assurances that any error did not contribute to the punishment
verdict beyond a reasonable doubt.
For these reasons, Appellant’s fourth and fifth points of error should be
overruled.
22
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, there being legal and
competent evidence sufficient to justify the conviction and punishment assessed in
this case and no reversible error appearing in the record of the trial of the case, the
State of Texas respectfully prays that this Honorable Court affirm the judgment
and sentence of the trial court below.
Respectfully Submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
__/s/Lauren N. Sutton____________
By: Lauren N. Sutton
Assistant District Attorney
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
Attorneys for the State
23
Certificate of Compliance
I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of
Appellate Procedure, Appellee’s Brief contains 4,837 words, exclusive of the
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
__/s/Lauren N. Sutton__________________
Lauren N. Sutton
24
Certificate of Service
I, Lauren N. Sutton, certify that I have served a true and correct copy of the
foregoing Brief for the State upon Mr. Al Smith, Attorney for Appellant, on this
the 22th day of July, 2015.
__/s/Lauren N. Sutton___________
Lauren N. Sutton
25
Roderick Beham v. State
Combined Opinion