Meyer v. State

Full title: JOHN J. MEYER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 19, 2007

No. 05-05-00900-CR (Tex. App. Jul. 19, 2007)

Opinion

No. 05-05-00900-CR

Opinion Filed July 19, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F04-41265-NK.

Before Justices MORRIS, WHITTINGTON, and RICHTER.

OPINION

MARTIN RICHTER, Justice.

John J. Meyer appeals his jury conviction and thirty-five year sentence for the murder of Jose Campos. In eight issues, Meyer asserts (a) the evidence is factually insufficient to support the jury's rejection of his self-defense claim, (b) the trial court erred during the guilt-innocence phase of trial in denying his motion to suppress, failing to declare sua sponte a mistrial following inadmissible victim impact testimony, and overruling his objection to the prosecutor's closing argument, (c) the trial court erred in admitting certain evidence at punishment, (d) the jury's failure to find he acted under the influence of sudden passion is against the great weight and preponderance of the evidence, and (e) the cumulative effect of the errors warrants reversal of the conviction. Finding no merit to Meyer's complaints, we affirm.

Background

The murder occurred in Campos's apartment on August 15, 2004 and was witnessed by Campos's friend, Daniel Acuna. Campos, Meyer, Acuna, and Meyer's friend Diego Alba had spent the night "hanging out . . . drinking, and snorting cocaine." Alba left Campos's apartment around 3:45 a.m. and "everything was fine" at that time. About four hours later, Acuna went to sleep and left Campos and Meyer sitting in the living room. When Acuna awoke two hours later, he found Meyer in the kitchen and Campos still sitting in the living room, almost asleep. Moments later, Meyer approached Campos "slowly" and began insulting him and stabbing him in the chest and stomach with a knife. Although Campos tried to stand up and defend himself, he was unable to do so. Meyer stabbed Campos five times before Acuna was able to take the knife away from Meyer. Meyer appeared unconcerned and told Acuna he stabbed Campos because Campos "was talking s — about me." Meyer then told Acuna they should leave the apartment. Acuna left the apartment with Meyer but returned moments later to help Campos. Meyer was located the following day in San Antonio where he voluntarily surrendered. In a written confession, Meyer stated he "went at" Campos with the knife after Campos began "talking s — under the table" to him. Meyer also stated he "stabbed [Campos] in the stomach or chest area more than once . . . didn't mean to kill him [,] just meant to cut him but was drunk." An autopsy revealed Campos died from "multiple shock force injuries," including a "three inch deep" stab wound that perforated his diaphragm and right side of the liver and a "two-and-a-quarter inch deep" stab wound that perforated the chest wall and left side of the liver. Among the State's witnesses at trial were Campos's girlfriend, Ana Villegas, who testified she had spoken to Campos about forty-five minutes before the murder and "everything seemed fine;" Acuna, who recounted what he witnessed; and Alba, who testified Meyer admitted he had "messed up" and "f — someone up" after being talked s — to." The State also presented testimony at punishment that Meyer had previously been arrested for burglary of a motor vehicle. Meyer had also been arrested for public intoxication, and the search incident to that arrest yielded 2.7 grams of marijuana. Testifying at guilt-innocence, Meyer "expanded on" his statements in his written confession and presented a theory of self-defense. According to Meyer's trial testimony, Campos began insulting and threatening Meyer after Acuna went to sleep, at one point going up to Meyer's ear and threatening Meyer that he would not "leave th[e] apartment alive." Campos also "kept going in to another room and coming back." Meyer testified he had just met Campos and that Campos had told him early in the evening that he had a gun, although Campos never showed it. Afraid and believing Campos had the gun in his pocket and would act on his threats, Meyer grabbed a knife and began stabbing Campos repeatedly. Meyer testified he had slept very little and had consumed "a lot of alcohol" and "some cocaine." Meyer testified further that he did not intend to kill Campos but wanted to "just poke him or cut him" so that Meyer could have "enough time to run out the door." Meyer explained he did not call for help and chose to flee the scene because he was afraid and wanted advice from a cousin who lived in San Antonio. He did not realize Campos had died until a friend told him. Meyer's testimony concerning the gun and that he had just met Campos was corroborated by other witnesses, who also testified that Campos was bigger and older than Meyer. Meyer did not testify at punishment but argued he acted under the immediate influence of sudden passion. Several of his family members also urged at punishment that he be granted probation. As stated, the jury found Meyer guilty of murder, impliedly rejecting his self-defense claim. The jury also rejected his claim of sudden passion.

Jury's Rejection of Self-Defense Claim

In his first issue, Meyer asserts the evidence is factually insufficient to support the jury's implicit finding that he did not act in self-defense. In making this argument, Meyer notes that the record shows both he and Campos had been drinking and using cocaine and Campos had "bragged" about a gun, was bigger and older, had been belligerent, and was "intimately familiar" with the apartment. Meyer also notes the record reflects that although he fled, he later surrendered voluntarily and gave a written statement. Finally, Meyer argues the number of wounds Campos received-five-were not "so numerous as to be inconsistent with [his] account of self-defense." A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1),(2) (Vernon 2003). However, a person is generally justified in using deadly force against another if he reasonably believes that deadly force was necessary to protect himself against the other's use or attempted use of unlawful deadly force, and a reasonable person in the actor's situation would not have retreated. Id. § 9.31(a), 9.32(a). A defendant asserting a claim of self-defense has the burden of producing some evidence to support the claim. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). Once the defendant produces some evidence, the State then bears the burden of persuasion to disprove the raised defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). The burden of persuasion does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. When an appellant challenges the factual sufficiency of the evidence supporting the rejection of a claim of self-defense, we view all the evidence in a neutral light and ask whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); Zuliani, 97 S.W.3d at 595. In conducting this review, we bear in mind that the fact finder may draw reasonable inferences from the evidence, is the sole judge of the weight of the evidence and credibility of the witnesses, and may accept or reject any or all of the evidence produced by the parties. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Jones v. State, 184 S.W.3d 915, 919 (Tex.App.-Austin 2006, no pet.). We will reverse a conviction on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the fact finder's verdict. Watson, 204 S.W.3d at 417. Here, it is uncontroverted that Meyer stabbed Campos four times in the stomach and chest, killing him. Meyer's testimony was that his actions were justified because he acted in self-defense. He testified that Campos, who was bigger and older, had been "taunting" and "threatening" him and that Campos "kept going in to another room and coming back." Having just met Campos and believing Campos had a gun in his pocket and would act on his threats and use it, he stabbed Campos five times, just "enough" so he could have time to run out the door. The only evidence that Campos was the aggressor, however, is Meyer's testimony. Testimony from Campos's girlfriend indicated "everything was fine" at least forty-five minutes prior to the murder and Acuna, who witnessed the murder, testified Campos was sitting on the floor, almost asleep, when Meyer repeatedly stabbed him. Additionally, although Meyer stabbed Campos "only" five times, medical testimony showed the cuts were more than superficial, with two of them being so deep as to perforate his diaphragm, chest wall, and liver. Meyer's testimony that he acted in self-defense, later voluntarily surrendered, and gave a written statement does not render this evidence insufficient to support the conviction. Rather, it raised an issue of credibility for the jury, not this Court, to determine. As the sole judge of the witnesses' credibility, the jury was free to believe the State's witnesses, disbelieve Meyer's, and rationally find that deadly force was unnecessary and Meyer could have retreated. Viewing the evidence in a neutral light, we conclude a rational jury could have found beyond a reasonable doubt that Meyer murdered Campos and that he was not justified in doing so. See McClesky v.State, 224 S.W.3d405 (Tex.App.-Houston [1^st Dist.] 2006, pet. ref'd) (jury could reasonably reject self-defense claim where only evidence victim was aggressor was appellant's and victim had no weapon and was seen ducking to escape appellant's gunfire); Gutierrez v. State, 85 S.W.3d 446, 450-51 (Tex.App.-Austin 2002, pet. ref'd) (jury could reasonably infer culpable intent or knowledge from appellant's stabbing victim in chest, act clearly dangerous to human life). We resolve Meyer's first issue against him.

Motion to Suppress

Meyer's second issue stems from the trial court's denial of his pretrial motion to suppress his written statement. Meyer sought to suppress this statement under article 38.22 of the Texas Code of Criminal Procedure which governs the admissibility of an accused's written or oral statements. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). Under article 38.22, an accused's written statement is admissible only if on its face it shows the accused was advised of his rights and he "knowingly, intelligently, and voluntarily" waived those rights prior to and during the making of the statement. See id. art. 38.22, § 2. At the hearing on his motion, Meyer did not dispute he was properly advised of his rights. Rather, he argued he did not knowingly and intelligently waive those rights. Meyer testified that he "got no more than ten minutes of sleep" between 10:00 a.m. on August 14, the day before the murder, and 4:38 p.m. on August 16, when he gave his statement. Meyer also testified he had consumed a twelve-pack of alcohol and "large amount of cocaine" from 10:00 a.m. on August 14 until midnight on August 15^th, when he was arrested. Based on this testimony, coupled with testimony that he had only a tenth-grade education, Meyer argued he did not have "the normal use of his mental and physical faculties" and was "not in a position to knowingly and intelligently waive his rights." Without making explicit findings of fact, the trial court denied the motion. Meyer now argues this was error. We review a trial court's ruling on a suppression motion under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). Because the trial court is the sole judge of the credibility of witnesses and the weight of their testimony, we give almost total deference to the trial court's determination of historical facts and then review de novo the trial court's application of the law to those facts. Wyatt v. State, 23 S.W.3d 18, 23 (Tex.Crim.App. 2000); Carmouche, 10 S.W.3d at 327. When, as here, the trial court does not make explicit findings of fact, we assume the trial court made implicit findings supporting its ruling and review the evidence in the light most favorable to the ruling. Carmouche, 10 S.W.3d at 327-28. In determining whether an accused understood his rights and the effect of waiving those rights, we look at the totality of the circumstances. Wyatt, 23 S.W.3d at 23. While evidence of intoxication, lack of sleep, and a lack of education is relevant, it is not per se determinative. See, e.g., Ripkowski v. State, 61 S.W.3d 378, 381 (Tex.Crim.App. 2001) (intoxication); Barney v. State, 698 S.W.2d 114, 120 (Tex.Crim.App. 1985) (sleep deprivation); Casias v. State, 452 S.W.2d 483, 488 (Tex.Crim.App. 1970) (illiteracy); Foster v. State, 101 S.W.3d 490, 497 (Tex.App.-Houston [1^st Dist.] 2002, no pet.) (sleep deprivation and illiteracy). Here, the trial court heard testimony not only from Meyer but also from the detective who interviewed Meyer and took his statement. This witness, Shawn Hanley, testified that Meyer did not appear to be under the influence of drugs or alcohol when he gave his statement sixteen hours after last drinking and consuming cocaine. Hanley also testified Meyer never asked to stop the interview and was not denied any "basic necessities." Although Meyer testified he had not slept much at all when he gave his statement, no evidence exists in the record that he appeared sleepy or groggy or that he requested sleep before meeting with Hanley. Additionally, although Meyer suggest his tenth grade education limited his ability to understand his rights and waiver of those rights, he testified he could read and write, and in fact wrote a portion of his statement. Finally, although Meyer argues intoxication, lack of sleep, and his limited education deprived him of his faculties, he did not testify at the hearing that he did not understand his rights or the effect of waiving them. In fact, the testimony showed that he acknowledged being read his rights, understanding them, and specifically choosing to waive them. Given the totality of the circumstances, we conclude Meyer "knowingly and intelligently" waived his rights and the trial court did not err in denying his motion to suppress. See, e.g., Barney, 698 S.W.3d at 120 (confession voluntary despite appellant having no sleep for sixteen hours and having only eighth grade education where appellant did not request sleep before confession and officer's testimony showed appellant appeared to have slept well and did not appear groggy or sleepy); Foster, 101 S.W.3d at 497 (confession voluntary despite lack of sleep and illiteracy where record did not show appellant suffering from sleep deprivation nor that appellant did not understand his rights simply because he was illiterate). We resolve Meyer's second issue against him.

Victim Impact Testimony

Meyer's third issue stems from the following portion of the State's examination of Campos's girlfriend:

Q. Ana, after you found out that Jose was dead and he had died as a result from the wounds he had, what happened as far as the funeral arrangements with his body?

A. His brother came from Peru, from Chile, actually. They wanted to take the body back to Peru, but they couldn't because it was too expensive to take the body, so they cremated him here.

***

Q. Are Jose's parents still alive?

A. Only his mom.

Q. Where is his mom?

A. She is in Peru.

Q. And does she have health problems as well?

A. Yeah, heart problems.

Q. Could either [the brother or the mother] be here today?

A. No, they couldn't.

Meyer characterizes this testimony, elicited during the guilt-innocence phase of trial, as "victim impact" testimony relevant in the punishment phase of trial but inadmissible in the State's case-in-chief. See Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App. 1990); Love v. State, 199 S.W.3d 447, 456-57 (Tex.App.-Houston [1^st Dist.] 2006, pet. ref'd). Meyer did not object to this testimony, but asserts the trial court should have sua sponte declared a mistrial because the testimony served "only to incite sympathy for [Campos's] survivors" and "create[d] an unacceptably high risk of prejudice." A trial judge has the power to declare a mistrial sua sponte when "in [his] opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." Torres v. State, 614 S.W.2d 436, 442 (Tex.Crim.App. [Panel Op.] 1981) (citation omitted); Plunkett v. State, 883 S.W.2d 349, 354 (Tex.App.-Waco 1994, pet. ref'd). The trial court should use this power with "the greatest caution under urgent circumstances, and for very plain and obvious causes." Torres, 614 S.W.2d at 442 (citation omitted); Plunkett, 883 S.W.2d at 354. The circumstances here do not rise to this level. Although victim impact testimony is inadmissible during the guilt-innocence phase, the complained-of testimony is not victim impact evidence. In homicide cases, victim impact evidence has traditionally been defined as "evidence concerning the effect the victim's death will have on others, particularly the victim's family members." Mathis v. State, 67 S.W.3d 918, 928 (Tex.Crim.App. 2002). The evidence here, however, does not concern how third persons were affected by the murder. As such, the testimony was not inadmissible and the trial judge did not err in failing to sua sponte declare a mistrial. We resolve Meyer's third issue against him.

Improper Jury Argument

In his fourth issue, Meyer complains of the following portion of the prosecutor's rebuttal argument

Right now, let's take this case and let's flip it on its head. Right now what we have is John Meyer sits here, and as he sits here today, he is an innocent man. Let's do that. Let's talk about what exactly would have to happen and the circumstances, and frankly, the bad luck that would have to happen to him for that to be the case.

Meyer asserted at trial, as he asserts now, that this argument was improper and a misstatement of the law because "the presumption [is without flipping it on its head] that he is innocent as he sits here today." Meyer maintains this argument shifted the burden of proof to him, was "sorely prejudicial," and "sealed his fate," warranting reversal of his conviction. It is axiomatic that a person is presumed innocent until proven guilty. Coffin v. United States, 156 U.S. 432 (1895); Tex. Crim. Proc. Code Ann. art. 38.03 (Vernon 2006). It is also axiomatic that a defendant is entitled to a fair trial free from improper argument by the prosecuting attorney. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991). However, to constitute reversible error, a prosecutorial misstatement of the law must have a substantial and injurious effect or influence on the jury's verdict. Stewart v. State, 221 S.W.3d 306, 313 (Tex.App.-Fort Worth 2007, no pet.); Adams v. State, 179 S.W.3d 161, 165 (Tex.App.-Amarillo 2005, no pet.). In determining the harm associated with the improper argument, we consider the entire record and balance three factors: (1) the severity of the misconduct; (2) any curative measures taken by the trial court such as an instruction to disregard after sustaining an objection; and (3) the certainty of the conviction absent the misconduct. Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g). Balancing those factors here in light of the entire record, we conclude the prosecutor's argument did not have a substantial and injurious effect or influence on the jury's verdict. The prosecutor's improper argument was limited to a single remark and was not repeated. Although the trial court did not take any curative steps following Meyer's objection, the jury had been told during voir dire and was instructed in the jury charge that Meyer was presumed innocent, the prosecution bore the burden to prove guilt beyond a reasonable doubt, and it should acquit if the prosecution failed to meet its burden. Absent evidence to the contrary, which we do not have, we presume the jury followed the instructions. Hutch v. State, 922 S.W.2d 166, 172 (Tex.Crim.App. 1996). Finally, as previously discussed, the evidence of guilt in this case was substantial. The murder was witnessed by Acuna, who testified that Meyer repeatedly and with disregard stabbed Campos. Additionally, medical testimony showed the cuts were not superficial but deep enough to perforate Campos's diaphragm, chest wall, and liver. Meyer's claim that he was harmed by the prosecutor's improper argument is without merit. We resolve Meyer's fourth issue against him.

Jury's Rejection of Claim of Sudden Passion

In his fifth issue, Meyer argues the jury's failure to find he caused Campos's death while acting under the immediate influence of sudden passion is against the great weight and preponderance of the evidence. In arguing this issue, Meyer reiterates the argument he raised on his self-defense issue-that Campos was "armed" and "fueled" by cocaine and alcohol and was "menacing" him. Meyer argues that being "menaced" by an "armed and drug-crazed" man would have caused much more than normal anger, frustration or embarrassment in a person of normal temper. Meyer also argues his insulting Campos during the "sudden" stabbing shows he "did not have sufficient time for cool reflection." Meyer maintains the evidence supports his claim of sudden passion and, as a result, he is entitled to a new punishment hearing. During the punishment phase of a trial, a defendant may, in order to reduce the punishment from a first degree felony to a second degree felony, raise the issue of whether he caused a person's death under the immediate influence of sudden passion arising from an adequate cause. Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). "Sudden passion" means passion arising at the time of the offense and directly caused by and stemming from provocation by the individual killed or another acting with the person killed. Id. § 19.02(a)(2). In other words, it is "an excited and agitated mind at the time of the killing caused by an act of the deceased." Hobson v. State, 644 S.W.2d 473, 478 n. 10 (Tex.Crim.App. 1983); Rayme v. State, 178 S.W.3d 21, 28 (Tex.App.-Houston [1^st Dist.] 2005, pet. ref'd). "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of "cool" reflection. Id. § 19.02(a)(1). The defendant bears the burden of proving sudden passion by a preponderance of the evidence. Id. § 19.02(d). We review a sufficiency challenge to the jury's failure to find sudden passion using the same standard of review as a challenge to the rejection of an affirmative defense. See Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet. ref'd). That is, we consider all the relevant evidence to determine whether the negative finding is so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. See id. In making this determination, we bear in mind that the fact-finder is the sole judge of the weight and credibility of the evidence and testimony, and we may not substitute our judgment for that of the fact-finder. Id. at 423. Here, the only evidence that Campos engaged in a provocative act and "provided" adequate cause is the same evidence Meyer relied on to show he acted in self-defense-his uncorroborated testimony that Campos had a gun and threatened him. Although his testimony was sufficient to raise the issue of sudden passion, the jury was free to disbelieve his testimony and believe the State's witnesses' testimony that everything "seemed" fine at least forty-five minutes before the murder and Campos was falling asleep when Meyer began stabbing him. See, e.g., Curry v. State, 222 S.W.3d 745, 751 (Tex.App.-Waco 2007, pet. filed) (concluding evidence supported jury's rejection of sudden passion claim where self-defense was primary defensive theory and evidence supported jury's rejection of self-defense claim); Trevino v. State, 157 S.W.3d 818, 822 (Tex. App-Fort Worth 2005, no pet.) (concluding evidence supported jury's rejection of sudden passion claim where only evidence appellant was provoked and acted in "terror" was appellant's own testimony). Viewing the evidence under the appropriate standard, we cannot conclude the jury' failure to find Meyer acted under the immediate influence of sudden passion is so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. We resolve Meyer's fifth issue against him.

Admission of Evidence

In his sixth and seventh issues, Meyer complains of the admission at punishment of certain unadjudicated extraneous offense evidence. Specifically, in his sixth issue, he complains of the testimony that he had previously been arrested for burglary of motor vehicle. In his seventh issue, he complains of the testimony that he was found in possession of marijuana during a search incident to an arrest for public intoxication. In each issue, Meyer argues that the court erred in allowing the testimony because neither offense was "proven beyond a reasonable doubt." Meyer argues the State did not prove beyond a reasonable doubt that he possessed marijuana because it failed to offer scientific evidence proving the substance was in fact marijuana. Meyer argues the State did not prove beyond a reasonable doubt that he broke into a car because the testimony concerning this offense came not from the victim, but from an officer who was conducting surveillance when Meyer broke into the car. Meyer argues that without the victim's testimony, lack of consent to enter the car could not be established. The admissibility of evidence at punishment is guided largely by section 3 of article 37.07 of the Texas Code of Criminal Procedure. Haley v. State, 173 S.W.3d 510, 513 (Tex.Crim.App. 2005). Under that section, evidence may be offered as to any matters the court deems relevant including evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2006). That the defendant has not actually been charged with or been finally convicted of the crime does not matter. Id. Neither does it matter that the act was not actually a criminal offense or that the elements of a crime necessary for a finding of guilt cannot be established. Haley, 173 S.W.3d at 514-15. All that must be shown beyond a reasonable doubt is that the defendant was involved in the act itself. Id. This is so because the question at punishment is "not whether the defendant has committed a crime, but instead what sentence should be assessed." Id. at 515. Here, Meyer does not dispute he was involved in the complained-of unadjudicated acts or that evidence of those acts was not relevant. Instead, he asserts the State failed to prove beyond a reasonable doubt that the acts were criminal offenses. However, the State was not required to make that proof. Id. at 514-15. Through its witnesses, the State met its burden of proving Meyer was involved in the two unadjudicated acts. This was all the State was required to do. Id. Meyer's complaint that the evidence of the unadjudicated acts was inadmissible is without merit. We resolve his sixth and seventh issues against him.

Cumulative Error

In his eighth issue, Meyer asserts the cumulative effect of the complained-of errors warrants reversal of his conviction. However, having failed to show reversible error in any of his complaints, he cannot show cumulative error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999) (holding that non-errors cannot cumulatively cause error). We resolve Meyer's eighth issue against him. We affirm the trial court's judgment.