Opinion
No. 14-08-00831-CR
Opinion filed December 8, 2009. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas Trial Court Cause No. 1144141.
Panel consists of Justices ANDERSON, BOYCE, and SULLIVAN.
MEMORANDUM OPINION
Appellant Curtis Green, Jr., challenges his murder conviction. After finding appellant guilty, the jury assessed punishment as confinement for 50 years. Appellant contends that the trial court erred by (1) admitting portions of a 9-1-1 tape, which allegedly constituted improper character evidence; (2) refusing to grant requested limiting instructions; (3) admitting two autopsy photographs into evidence; (4) allowing a bailiff to testify; (5) allowing a bailiff to testify in violation of "the Rule;" and (6) admitting evidence of a prior conviction allegedly taken without counsel during the punishment phase of trial. We affirm.
Background
On the evening of November 13, 2007, complainant Patrick Gims, was sitting outside of the Colony Apartments with a group of people. Appellant walked up to Gims and stabbed him in the chest. Gims tried to run away, but appellant chased him down. Gims collapsed in the middle of the street; appellant jumped on top of him and stabbed him repeatedly. Appellant eventually stopped stabbing Gims and went to a nearby Texaco gas station. Appellant returned a few minutes later and began stabbing Gims again. Appellant stabbed Gims 29 times. This episode was witnessed by multiple people. Appellant was arrested at the scene. Gims was taken to the hospital by emergency medical personnel and died two weeks later from his wounds.Analysis
Appellant presents six issues on appeal. We address each in turn.I. 9-1-1 Tape
In his first and second issues, appellant asserts that the trial court erred in admitting portions of a 9-1-1 tape into evidence and refusing to issue a limiting instruction regarding the tape. At trial, the State offered a tape and transcript of three 9-1-1 telephone calls as evidence. Appellant objected and contended that the evidence was hearsay; violated appellant's right to confront witnesses; and contained improper character evidence. The State contended that the tape was admissible as a present sense impression and excited utterance. The court overruled appellant's objections. Appellant then requested an oral limiting instruction telling the jury "that they can only consider [the 9-1-1 tape] as the present-sense impression of the witness and you can't consider this as testimony for you to rely upon in convicting the defendant." Appellant also requested that a written limiting instruction including the same language be included in the court's charge. The trial court denied both requests.A. Character Evidence
Appellant first argues that the trial court erred in admitting the 9-1-1 tape because portions of it constituted improper evidence of the complainant's character. Specifically, appellant complains about the following statements made on the tape: (1) "That man ain't never did nothing to nobody. He may be drunk all the time but that man ain't never did nothing to nobody[;]" (2) "[t]hat man never did nothing to nobody, dog[;]" and (3) "[h]e never did nobody no harm." Appellant contends that the 9-1-1 tape was improperly admitted because the specified portions constituted improper character evidence of the complainant's peaceable and inoffensive nature in violation of Texas Rule of Evidence 404(a). Generally, it is improper for the State to prove that the victim in a homicide case was peaceable and inoffensive unless the defendant first has "opened the door" by (1) eliciting evidence of the victim's violent character, or (2) asserting his actions were in self-defense. Tex. R. Evid. 404(a)(2); Armstrong v. State, 718 S.W.2d 686, 695 (Tex. Crim. App. 1985), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998); Arthur v. State, 170 Tex. Crim. 161, 339 S.W.2d 538, 539 (1960). Erroneous admission of such evidence is harmless if other evidence at trial is admitted without objection and proves the same fact. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991). As a threshold matter, the State argues that it is unclear whether the callers speaking on the 9-1-1 tape were referring to appellant or to Gims in the quoted excerpts. Even if they were referring to Gims, the State contends this evidence was admissible because appellant opened the door by questioning multiple witnesses on cross-examination about the possibility that Gims had been fighting or arguing with appellant or appellant's stepson before the incident. The State specifically points to appellant's questioning of Houston Police Officer Jose Pena and witness Inez Tiamiyu. Pena is a member of the Homicide Division's Crime Scene Unit. Appellant questioned Pena about whether the blood evidence at the scene supported the possibility of an altercation between two or more people:Q: Let me just tell you this. How do you know that all the blood that you saw out there on that particular day is blood that would had to have come from this altercation as opposed to blood that was put there from some other source, from some other time?
A: Well, the blood wasn't dry at that point, and I — there — I don't know which way to answer that, but there is — I think that it will be impossible for there to be different sources of blood out there.
Q: Why would that be impossible? Think about this for a second. You don't know if this was just an altercation between two people or if it started out being an altercation between more than two people, do you?
A: That's correct, no.
Q: And if it started out being an altercation with more than two people and somebody else was cut, you don't know if the blood that you're seeing out there is the blood of Patrick Gims or the blood of somebody else, do you?
A: That's correct.Appellant questioned Tiamiyu regarding whether Gims had been arguing with someone shortly before appellant attacked him:
Q: And on August 27th of 2008, you're saying that you were sitting [outside of the Colony Apartments] for about 15 minutes?
A: And I was.
Q: If you were sitting out there for 15 minutes, you said that you called for Patrick [Gims] to come up?
A: Uh-huh.
Q: Because you knew he was arguing with somebody down there?
A: Right.
Q: When he came up there to you, how long — how long did you talk to him before [appellant] came on the scene?
A: Only about a minute or so.
* * *
Q: You said, then, you noticed that [appellant] came up to him and punched him?
A: Punched or stabbed, I'm not sure.Based on this record, we conclude that appellant opened the door to testimony concerning Gims's peaceable and inoffensive nature by eliciting evidence regarding the possibility that Gims had been fighting or arguing before the murder. See Armstrong, 718 S.W.2d at 695; Arthur, 339 S.W.2d at 539. Therefore, even if it is assumed that Gims was the person being referred to in the quoted excerpts, the State was entitled to offer the 9-1-1 tape as rebuttal evidence. See Tex. R. Evid. 404(a).
B. Limiting Instruction
Appellant next contends that the trial court erred in refusing to grant his requests for an instruction under Texas Rule of Evidence 105 directing the jury to consider the 9-1-1 tape only as a present sense impression. Appellant asked the trial court to give a limiting instruction (1) orally upon admission of the evidence, and (2) in the written jury charge. Rule 105 states that "[w]hen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly[.]" Tex. R. Evid. 105. The party opposing admission of the evidence has the burden of requesting a limiting instruction. Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001). At trial, appellant requested an instruction to the jury "that they can only consider [the 9-1-1 tape] as the present-sense impression of the witness and you can't consider this as testimony for you to rely upon in convicting the defendant." On appeal, appellant does not argue that the trial court erred in denying his request for the limiting instruction articulated during trial. Rather, appellant argues that the trial court should have issued an unspecified limiting instruction because the 9-1-1 tape contains improper character evidence: "Admission of the improper character evidence showing the lifelong peaceful nature of the Complainant, without any limitation as requested by Appellant, served only to contrast the Complainant's character with that of the Appellant." A party must preserve error for appeal by a proper objection and an adverse ruling on that objection. Tex. R. App. P. 33.1; Tex. R. Evid. 103(a). Arguments on appeal must comport with the objection at trial or the error is waived. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (to preserve error for appellate review, complaint on appeal must comport with objection at trial, and objection stating one legal theory may not be used to support a different legal theory on appeal). Appellant's argument on appeal does not comport with his objection at trial. Therefore, the claimed error is waived. See Dixon, 2 S.W.3d at 273; Broxton, 909 S.W.2d at 918. In any event, appellant's complaint provides no basis for reversal even if it had been preserved. Statements admitted as present sense impressions or excited utterances are admissible for all purposes and are not subject to a limiting instruction. See Green v. State, No. 07-06-0367-CR, 2007 WL 923081, at *2 (Tex. App.-Amarillo March 28, 2007, no pet.) (mem. op., not designated for publication) ("Being an excited utterance, [the statement] was admissible free of any limiting instruction despite its supposed hearsay nature."); Cockrell v. State, No. 04-05-00767-CR, 2006 WL 2955325, at *3 (Tex. App.-San Antonio Oct. 18, 2006, pet. ref'd) (mem. op., not designated for publication) ("A statement admissible as an excited utterance is admissible as an exception to the hearsay rule. Accordingly, if the trial court admitted the statements as excited utterances, the statements were admissible for all purposes and were not subject to a limiting instruction."); Alli v. State, No. 01-04-00448-CR, 2005 WL 428231, at *3 (Tex. App.-Houston [1st Dist.] Feb. 24, 2005, no pet.) (mem. op., not designated for publication) ("The record shows that Magdalene's statements to the peace officers were admissible as excited utterances. A limiting instruction would thus have been improper because her statements were admitted for all purposes at trial and could be properly used by the jury as primary evidence of appellant's guilt."). Therefore, the trial court did not err in denying appellant's request for a limiting instruction. We overrule appellant's first and second issues.II. Autopsy Photographs
In his third issue, appellant asserts that the trial court erroneously admitted two autopsy photographs into evidence during trial in violation of Texas Rule of Evidence 403. Appellant does not challenge admission of 12 other autopsy photographs; appellant contends these two photographs were objectionable and differed from the other photographs because they were "utterly gory" and depicted "a naked body cut almost in half by postmortem surgical intervention." "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. The admissibility of photographs is within the trial court's sound discretion, and we will not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. Resendiz v. State, 112 S.W.3d 541, 544 (Tex. Crim. App. 2003); Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). Courts consider many factors in determining whether the probative value of autopsy photographs is substantially outweighed by the danger of unfair prejudice, including (1) the number of exhibits offered; (2) their gruesomeness; (3) their detail; (4) their size; (5) whether they are in color or black-and-white; (6) whether they are close up; (7) whether the body depicted is clothed or naked; (8) the availability of other means of proof; and (9) other circumstances unique to the individual case. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006); Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997). Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001); Santellan, 939 S.W.2d at 172. Appellant contends that the probative value of State's exhibits 30 and 32 was diminished, and the prejudicial effect was heightened, because the photographs showed damage to Gims's body caused by a subsequent autopsy. State's exhibit 30 depicts Gims's upper torso displaying two stab wounds. It also depicts (1) a large surgical incision across Gims's chest made while surgeons were rendering emergency treatment to Gims, and (2) a chest tube. The incision runs the length of Gims's chest and appears to be approximately three inches wide. The incision is not closed. State's exhibit 32 depicts the left side of Gims's upper torso including a portion of his left arm displaying two stab wounds. It also depicts (1) a portion of the above mentioned surgical incision, (2) a chest tube, and (3) a previous incision for a chest tube. Both exhibits are close ups of Gims's upper body and torso; they do not depict the body in an inflammatory manner. These exhibits are the only photographs depicting these four stab wounds, so they are not duplicative. Both exhibits appear in the record on appeal as 8" x 10" black-and-white photographs. Contrary to appellant's contention on appeal, the large incision and chest tube were not the result of an autopsy; they were the result of life-saving attempts by medical personnel. Dr. Dwayne Wolf, Deputy Chief Medical Examiner for Harris County, testified about the life-saving attempts that left (1) the surgical incision across Gims's chest, (2) the chest tubes, and (3) the previous chest tube incisions. Dr. Wolf explained that the surgical incision was not closed because medical personnel had difficulty closing it. He distinguished damage attributable to the initial stab wounds from damage attributable to medical personnel's life-saving attempts. Dr. Wolf used State's exhibits 30 and 32 to explain the cause of Gims's death. After considering all of the relevant factors, we conclude that the probative value of State's exhibits 30 and 32 is not substantially outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion by admitting them. Resendiz, 112 S.W.3d at 544; Sonnier, 913 S.W.2d at 518. We also note that appellant did not object to State's exhibit 31. Exhibit 31 is another 8" x 10", black-and-white photograph. It is a close up of Gims's upper body and torso displaying three stab wounds on Gims's right arm and the right side of Gims's abdomen. The photograph also depicts (1) a portion of the surgical incision, (2) a chest tube, and (3) a previous chest tube incision. State's exhibit 31 depicts the same damage caused by medical personnel's life-saving attempts that State's exhibits 30 and 32 depict. Therefore, any asserted error in the admission of State's exhibits 30 and 32 was harmless. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) ("[O]verruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of-ruling."). We overrule appellant's third issue.III. Bailiff's Testimony
In his fourth and fifth issues, appellant contends that the trial court erred in allowing a bailiff to testify in violation of "the Rule." Harris County Sherriff's Department Deputy David Clingan testified at trial about statements made to him by Kendra Williams, a witness for the appellant, on whom Clingan served a writ of attachment. Williams did not comply with the court's subpoena to appear as a witness. As a result, the court issued a writ of attachment that Clingan executed on the morning of August 26, 2008. While escorting her to the courthouse, Clingan initiated a conversation with Williams regarding her testimony. On the morning of August 27, 2008, Clingan told the prosecutor that "she might want to go have a conversation with [Williams]." After the prosecutor talked to Williams, she spoke with Clingan again regarding his conversation with Williams. The prosecutor then informed Clingan that she might call him as a witness to impeach Williams, if necessary. This situation was brought to the trial court's attention, and the trial court held a hearing the afternoon of August 27, 2008. Appellant objected to Clingan testifying, arguing that his credibility with the jury would be bolstered because he was serving as a bailiff in this case. The trial court overruled appellant's objection. Appellant called Williams to testify during the afternoon of August 27, 2008. Williams testified in support of appellant's self-defense and defense-of-third-person claims. Williams testified that she witnessed three altercations between appellant, appellant's stepson, and Gims. She further testified that Gims had a knife during these altercations. She also testified that one of appellant's girlfriends came by her house and offered to pay for her son's shots so that she could testify in court on behalf of appellant. The State called Clingan to testify the next morning. Clingan testified that he initiated a conversation with Williams about "why the defense wanted [her] so badly." Clingan testified that Williams told him "probably because she was the one that was trying to pull [appellant] off that man and make him go home before the police got there." Clingan testified that Williams never mentioned anything about multiple altercations between appellant, appellant's stepson, and Gims, or Gims having a weapon. Clingan also testified that Williams told him two of appellant's girlfriends had stopped by her house that morning and offered her $20 to come to court with them. Appellant first argues that the trial court erred in allowing Clingan to testify because his credibility with the jury was bolstered by serving as a bailiff in this case. Article 36.24 of the Texas Code of Criminal Procedure provides as follows:The sheriff of the county shall furnish the court with a bailiff during the trial of any case to attend the wants of the jury and to act under the direction of the court. If the person furnished by the sheriff is to be called as a witness in the case he may not serve as bailiff.Tex. Code Crim. Proc. Ann. art. 36.24 (Vernon 2006). When a bailiff does testify, reversal is not automatically mandated; rather, we must determine whether there has been a showing of harm or prejudice as a result of the bailiff's dual role. Walker v. State, 2 S.W.3d 655, 658 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd); see Criado v. State, 438 S.W.2d 557, 560 (Tex. Crim. App. 1968). To determine whether the appellant has demonstrated prejudice, we examine the particular facts of this case to determine what, if any, impact the bailiff's testimony had on the jury. See Criado, 438 S.W.2d at 560; Walker, 2 S.W.3d at 658. Important factors to consider in making this determination are (1) the bailiff's association with the jury, and (2) the importance of his testimony. See Ex parte Halford, 536 S.W.2d 230, 233 (Tex. Crim. App. 1976); Walker, 2 S.W.3d at 658; Jones v. State, No. 09-06-126-CR, 2007 WL 1364629, at *6 (Tex. App.-Beaumont May 9, 2007, no pet.) (mem. op., not designated for publication). In Jones, the appellant argued that the trial court erred in permitting a bailiff to testify because the bailiff's credibility would be bolstered with the jury. Jones, 2007 WL 1364629, at *6. The bailiff testified during the punishment phase that the appellant told him "he was going to do whatever it took to get out of his criminal case and he was going to do whatever it took to escape." Id. at *4. The court overruled the appellant's argument, stating that the bailiff's testimony was "very brief and confined to the issue of Jones's threat to escape[.]" Id. at *7. The court also noted that the bailiff had only limited contact with the jury involving answering the jurors questions, providing work excuses, and receiving three notes from the jury for the trial judge during the guilt/innocence phase of trial. Id. The court stated that the bailiff's "testimony did not concern a key element of the State's case." Id. In Walker, the court analyzed the bailiff-witness rule in the course of addressing the appellant's claim that he received ineffective assistance of counsel. Walker, 2 S.W.3d at 658-59. The appellant argued that his attorney failed to object to the testimony of a bailiff-witness during the punishment phase of trial. Id. at 656-57. The bailiff testified that the appellant told him during a lunch break that once he was out of prison he would have to "take care of some salt." Id. at. 657. The court held that the appellant's counsel was not ineffective for failing to object to the bailiff's testimony because there was insufficient evidence to show that the appellant suffered harm from the bailiff's testimony. Id. at 659. The court stated that the bailiff's testimony did not have a significant impact on the trial because of "the nature and brevity of the bailiff's testimony and the lack of any evidence that the bailiff had any significant contact with the jury[.]" Id. In this case, Clingan did not have significant contact with the jury. Clingan escorted (1) the venire panel into the courtroom; (2) the empanelled jurors to the jury room after they were selected; and (3) the jury into the courtroom the morning of August 27, 2008. He also answered the empanelled jurors' questions following their selection, and provided them with work excuses. Clingan had no further contact with the jury after the morning of August 27, 2008. Further, Clingan's testimony was brief and confined to what Williams told him during their conversation. Additionally, his testimony was used to impeach Williams' testimony; it was not used to prove a key element of the State's case. On this record, appellant has not demonstrated he was prejudiced by Clingan's testimony. See Ex parte Halford, 536 S.W.2d at 233; Walker, 2 S.W.3d at 658; Jones, 2007 WL 1364629, at *6. Appellant also argues that Clingan should not have been allowed to testify because appellant invoked "the Rule" and Clingan was not excluded from the courtroom. Appellant did not raise this objection at trial. A party must preserve error for appeal by a proper objection and an adverse ruling on that objection. Tex. R. App. P. 33.1; Tex. R. Evid. 103(a). Therefore, appellant presents nothing for review on this issue. We overrule appellant's fourth and fifth issues.