Opinion
No. 06-16-00092-CR
05-10-2017
ROYAL LYNN MULLINS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 196th District Court Hunt County, Texas
Trial Court No. 30,544 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
On the night Curtis Wayne Gray, Sr. (Gray), died, Janice Stanley told Greenville attorney, Royal Lynn Mullins, by telephone that Gray had broken into her Greenville residence. In response, Mullins took two pistols with him to Stanley's house, went inside, and shot Gray at least six times, including two shots meted out after Gray was apparently crawling on the floor—one of which shots was to Gray's back and the other of which was to the top of his head. Mullins claims, however, that all the shots were fired in self-defense or in defense of Christina Huey, Stanley's friend. The jury rejected Mullins' defensive claims and found him guilty.
At trial, Gray was often referred to as "Topper."
See TEX. PENAL CODE ANN. § 9.31 (West 2011).
See TEX. PENAL CODE ANN. § 9.32 (West 2011).
The jury assessed sixty years' imprisonment and a $10,000.00 fine.
On appeal, Mullins argues that insufficient evidence supports the jury's rejection of his self- and third-party-defense claims, that the trial court erroneously excluded evidence of prior acts of violence by Gray, and that the trial court erroneously admitted testimony regarding the training of police officers, including training concerning the use of force.
We affirm the judgment of the trial court because (1) sufficient evidence supports the jury's rejection of Mullins' justification defenses, (2) Mullins failed to preserve his claim of error in excluding evidence of Gray's prior violent acts, and (3) any error in admitting evidence of police training was harmless.
(1) Sufficient Evidence Supports the Jury's Rejection of Mullins' Justification Defenses
Mullins argues that the evidence is insufficient to support his conviction because no reasonable trier of fact could have found beyond a reasonable doubt that he did not act in self-defense or in the defense of a third person. When a defendant raises self-defense or defense of third persons, he or she has the initial burden to produce some evidence supporting the defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Dearborn v. State, 420 S.W.3d 366, 372 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Once evidence is produced, the burden of persuasion shifts to the State to disprove the defense. Zuliani, 97 S.W.3d at 594; Dearborn, 420 S.W.3d at 372. The State is not required to produce evidence rebutting the defense, but rather must prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Dearborn, 420 S.W.3d at 372. The jury's guilty verdict is an implicit finding that the jury rejected the defense. Zuliani, 97 S.W.3d at 594; Dearborn, 420 S.W.3d at 372.
Since the State had the burden of persuasion to disprove justification beyond a reasonable doubt, we evaluate the legal sufficiency of the evidence by reviewing all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found beyond a reasonable doubt against the defendant on the self-defense and third-party defense issues. Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd); see Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Kirk v. State, 421 S.W.3d 772, 776 (Tex. App.—Fort Worth 2014, pet. ref'd.; McCurdy v. State, No. 06-12-00206-CR, 2013 WL 5433478, at *3 (Tex. App.— Texarkana 2013, pet. ref'd) (mem. op., not designated for publication). In examining legal sufficiency, we defer to the jury's role "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may "believe all of a witnesses' testimony, portions of it, or none of it." Thomas v. State, 444 S.W.3d 4, 11 (Tex. Crim. App. 2014). We give "almost complete deference to a jury's decision when that decision is based on an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
Although unpublished cases have no precedential value, we may take guidance from them "as an aid in developing reasoning that may be employed." Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref'd).
In our review, we consider "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). Each fact need not "point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Id. Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). In our review, we consider all the evidence admitted at trial, even improperly admitted evidence. Thomas, 444 S.W.3d at 8; Hooper, 214 S.W.3d at 13.
Under the statutes on self-defense and defense of third persons, the use of deadly force is justified if certain circumstances are met. Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). For both defenses, the use of deadly force is justified
(1) if the actor would be justified in using force against the other under Section 9.31; andTEX. PENAL CODE ANN. §§ 9.32(a), 9.33(1) (West 2011). In the defense of a third person, the defendant must also "reasonably believe[] that his intervention is immediately necessary to protect the third person." TEX. PENAL CODE ANN. § 9.33(2). The use of force is justified under Section 9.31 "when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." TEX. PENAL CODE ANN. § 9.31(a). When self-defense or defense of a third person is asserted, "the reasonableness of the defendant's actions [is viewed] solely from the defendant's standpoint." Ex parte Drinkert, 821 S.W.2d 953, 955 (Tex. Crim. App. 1991) (citing Bennett v. State, 726 S.W.2d 32, 37-38 (Tex. Crim. App. 1986)).
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor [or the third person] against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of . . . ., murder, sexual assault, aggravated sexual assault, . . . .
Mullins does not argue that his belief that deadly force was immediately necessary is presumed. See TEX. PENAL CODE ANN. § 9.32(b).
The testimony at trial revealed that Gray and Stanley had lived together for about four years in a house owned by Stanley's sister, Jamie Hibbs, located at 3818 Spencer Street in Greenville. Both Gray and Stanley drank and used crack cocaine and other drugs. Throughout their relationship, Gray and Stanley argued, would sometimes engage in physical altercations, and had periods of separation. Curtis Gray, Jr., (Curtis) testified that, while he never saw a physical confrontation between them, he was aware of one that resulted in Gray going to jail.
Gray and Stanley occasionally worked for Mullins. Curtis testified that, besides Stanley working for Mullins, she had a personal and sexual relationship with Mullins and that Mullins often gave her money, food, water, and drinks. Mullins was seen at Stanley's house at least weekly.
There were many witnesses and much evidence at this trial, much of it revolving around Mullins' defensive issues. Our review of the whole record convinces us that the principal witnesses bearing on those defensive issues were Huey, Mullins, and Stanley and that their testimony alone demonstrates the sufficiency of the evidence to support the jury's rejection of Mullins' claims that he acted in self-defense or in defense of Huey. While the picture is further clarified by other witnesses, including Curtis, Greg Hughes, Eric Camp, Steve Walden, Felicia White, Michael Duff, Elizabeth Ventura, and Terry McElwrath, our narrative focuses on the testimony from Huey, Mullins, and Stanley.
Curtis began living with Gray and Stanley about two months before the incident. Two weeks before the incident, Hibbs purchased another house on Wellington Street in Greenville for Gray and Curtis to rent. Although Gray and Curtis moved to the Wellington Street house, Gray and Stanley continued to see each other, which Curtis testified was at Stanley's initiation. Curtis testified that, on the evening of July 29, Stanley called Gray and came to their new house to pick him up. After about thirty minutes, she brought him back, then called him again, and Gray walked over to her house. Gray returned a short time later and said she would not let him into the house. Around 9:00 p.m., Gray told Curtis that Stanley owed him money and that he was going to go get it. Curtis laid down to go to sleep and at some point in the night received a telephone call from Huey. Huey asked him to come get Gray because Gray and Stanley were arguing, but Curtis refused. Around 10:30 p.m., he received a telephone call from Stanley's friend, Tyler, to the same effect, but again refused to go to Stanley's house. He testified that Huey and Tyler sounded annoyed.
Greg Hughes, an officer with the Greenville Police Department (GPD), testified that he has known Mullins for a long time, and that when he went to the scene of the shooting, Mullins was very calm and acted as he normally does. He described Stanley as very excited, hysterical, and very talkative. As the investigation progressed and was videotaped, he sat with Stanley in a patrol car for several hours. The recording was played for the jury, on which Stanley said that Gray was trespassing and got what he deserved. She also stated that Mullins was a smart cookie, that he shot Gray, and that he had told Gray what would happen if he came back in Stanley's home and would not leave. Hughes testified that Stanley never told him that she was in fear that night or that she or Huey was attacked by Gray.
Eric Camp, a sergeant with the Greenville Police Department, testified that Mullins appeared to be very calm and acted in a manner consistent with the way he normally acts. He testified that when he entered the house and went into the first room it was pretty dim. He could see Gray in the second room, lying face down with his arms under him in a large pool of blood. He noticed a gunshot wound to the top of his head. About two or three feet from his head was a large fixed blade knife, which, to him, looked like it had been placed there for them to see. He talked with Stanley at the scene. He also picked Huey up at her house to transport her to the police station. A video recording from his patrol car's camera was played for the jury. Camp testified that Stanley did not say anything to him about Gray threatening her, but did say that Gray had sex with Huey. On the recording, Huey stated several times that she watched Mullins shoot Gray three times. Huey had blood on her feet when Camp went to her house, and Huey said that it was from her toes. Huey also stated that Stanley had wanted her to come to her house because Gray was hurting her, but when she got there, he was not.
Steve Walden, a Greenville police detective at the time of the shooting, supervised the crime scene. He testified regarding the crime scene photographs introduced into evidence. He identified a photograph showing the blood on Huey's feet and testified that there were bare footprints in blood in the room where Gray was killed. Walden explained that the knife next to Gray's head appeared to be lying on top of a bloody footprint, indicating that the footprint was made before the knife had been placed there. He also testified that there was no visible blood on the knife, indicating to him that it had not been used in connection with the shooting. He explained that Gray had eleven gunshot wounds, including wounds to both hands, on finger and on wrist, so that neither hand could have been holding the knife and not deposit blood onto it. Walden also testified that they recovered most of the bullet casings close together near the victim, indicating that the shooter was essentially stationary when he fired the shots. He also testified that he attended Gray's autopsy and learned that the angles of the bullet wounds to Gray's back and head, which were fatal, meant that Gray was down when those two shots were fired. On cross-examination, Walden testified that he did not know if a photograph was taken from directly above the knife. He admitted that there was DNA evidence on the knife and that the knife tested positive for blood. He opined that since the blood was not visible, it could have been spray back from a gunshot and that, if it was Gray's blood, then the knife must have been in the room at the time he was shot. He explained that all of the photographs he had discussed used artificial illumination and acknowledged that it was possible that Mullins may not have been able to see anything but movement. He also admitted that the quality of the lighting would affect what Mullins was able to see when he entered the house. Walden also acknowledged that since they found one bullet casing underneath Gray's body, at least one gunshot occurred while a part of his body was above ground level, and that Gray either fell or moved forward. He also testified that Mullins, at first, was probably four to six feet from Gray and that it would take a very short time for someone to come at a person with a knife from that distance. He opined that such a person would be aggressive and that one would have a right to defend oneself against him. He also opined that Mullins' statement to the police was not consistent with the evidence, since Mullins stated that Gray was being aggressive toward him. He explained that the autopsy showed that the trajectory of the gunshots to Gray's legs indicate the shooter was standing over him and that the wound to his back indicates Gray was already down. He also explained that if someone is aggressive toward you, you will retreat, but here the shooter stayed in one place and shot. Walden also stated that one casing being found in the first room and eight being found in the second room indicates that the shooter advanced toward Gray, which would not be likely if Gray was coming at him with a knife.
Greenville Police Detective Felicia White also investigated the homicide. She testified that she has known Mullins for thirty years, having first met him when he was working for the Hunt County Sheriff's Office, and that Mullins was a city prosecutor and attorney in Greenville for several years. She testified that she interviewed Huey, Stanley, and Mullins after the shooting. She characterized Huey as upset and scared at her first interview. She interviewed Huey three times during her investigation and testified that Huey was always consistent about being by the door during the shooting and never said that she was near the victim or between the victim and Mullins. She also testified that Huey never claimed to have had sex with Gray or to have been sexually assaulted by him. According to White, Huey never said she was in fear of Gray, but claimed to fear Mullins because of the shooting. She said that Huey was under the influence of some substance shortly after the shooting and that she knows Huey has a drinking problem. White testified that Stanley was also under the influence of some substance during her first interview. Stanley later told her that she had caught Gray and Huey having sex and that she bolted out of the door and told Mullins that she finally caught them. White also admitted that, in Huey's first interview, she stated that Gray and Stanley had been together for about a year and that he would beat her. According to White, Huey claimed that Gray was not supposed to be there and that they had had words earlier in the evening. In addition, White agreed that Huey had reported Gray lying face down on the couch when he was shot and that Huey was drunk at the time. White also admitted that, in her last statement, Huey could not remember if she had sex with Gray, and that Huey could give no reason for her bloody foot print to be at the scene. According to White, Mullins was very calm, helpful, and relaxed at his interview after the shooting. She testified that, by Mullins' account of the incident, he thought Gray was coming at him before Mullins shot him the first time and that, thereafter, Gray was either reaching into the couch or jerking and crawling before the last two shots. In White's opinion, based on Mullins' own account, Mullins could have safely retreated after Huey walked past him and was in a safe area, after Gray went toward the couch, or after Gray was down and crawling. White also testified that Mullins had been a certified peace officer and that he has been a licensed attorney in Texas since 1986. She testified that the last time Mullins was a patrol officer was probably 1977 or 1978.
Michael Duff was a police officer with the Euless Police Department for thirty-one years and has been an instructor at the Tarrant County College Police Academy since 1994. Since 2010, he has also taught firearms training and license-to-carry classes to private citizens. He has taught classes at the Police Academy on a wide range of topics, including the use of force, response to police calls, and firearms training. He testified that, from 1983 to 2016, core subjects at the police academy needed to become a certified peace officer included the Penal Code, how to apply the law, and firearms training, including why and when it is appropriate to use a firearm. The training covered the situations in which one can use deadly force in self-defense. He also testified that, after an officer completes the basic training, he can continue his training and get intermediate, advanced, and master peace officer certificates. Duff also explained that, to maintain the certificate, the officer must have forty to eighty hours of in-service training every two years. He also explained that, to become licensed, the certificate holder must be hired by a police agency. To maintain an active license, the officer must complete annual weapons proficiency training, which consists of shooting fifty rounds at distances varying from point blank to twenty yards. Duff testified that, according to information from the Texas Commission on Law Enforcement, Mullins had an active peace officer's license from 1986 to 2012 and that Mullins would have had to go through the required training every year to maintain an active license. Duff also testified that, in his private citizen classes, he teaches clients how to safely and competently handle and shoot a firearm, when they can and cannot use force and deadly force, and how to avoid it, if possible. Duff testified that, when a police officer has an active license, he may legally carry a handgun. He also testified that a private citizen who is not a convicted felon may legally possess a handgun without a license in his home, his place of employment, and in his automobile, if it is concealed. He stated that, unless a private citizen had a license to carry, if he possessed it at another person's residence, it would be a Class A misdemeanor in Texas. Duff also testified that, although a private citizen does not have a duty to defend a third person, he may do so if the third person is in imminent danger. He opined that if a man had been called to protect two females from some kind of harm and took a handgun with him, and on arrival one of the females was already outside of the house, and as he was entering the house the second female exits the house, then there is no imminent danger and no urgency to enter the house. Duff testified that neither a police officer nor a private citizen should enter the house in the absence of imminent danger to anyone. He also testified that, if the person decided nevertheless to enter the house and reasonably believed that he was in imminent danger of death or serious bodily injury, then a deadly force response would be justified under the law. Duff also stressed that the use of force is fluid and that the person may be presented with imminent deadly threat one moment and not the next. He testified that deadly force may be justified at one moment and not a moment later. He opined that, if the other person was coming at him and presented an imminent deadly threat, the first shot would be justified. However, if the other person then dove laterally so that they were no longer coming at him, then there would be more time and less danger, so he could reevaluate the danger posed or he could safely retreat. He also stated that if the other person has been wounded and has no visible weapon, there is not an imminent threat of deadly force, so further shots would not be justified, whether the shooter is a police officer or a private citizen. On cross-examination, Duff testified that he was not familiar with the training Mullins received at the police academy or whether he was trained in the use of force at the academy or afterwards. He stated that he would not change his opinion if after the first shot the other person dove and the private citizen thought he was going for another weapon. Duff acknowledged that if the other weapon was a knife and the other person was four feet away, that would be imminent if the other person had a knife and could throw it. He also testified that if the person believed the other person was going for a knife, the reasonableness of that belief would have to be examined. He acknowledged that, if the room was dark, most people would be afraid and would have less information, but that might also counsel for not entering the room.
Dr. Elizabeth Ventura, a medical examiner at Southwestern Institute of Forensic Sciences, performed an autopsy on Gray. She testified that Gray had gunshot wounds to the head, left chest, back, right upper arm, right wrist, right fourth finger, left hand, right hip, the left upper leg, and two to the right upper leg. Although most of the wounds also had exit wounds, she removed four projectiles from Gray's body. She testified that the wound to the head entered the right frontal scalp on the top of the head, went through the brain in a downward trajectory, and lodged in the brain stem. The gunshot to the left chest went through the right ventricle of the heart, lodged in the heart sac, and also had a downward trajectory. The gunshot to the back also had a downward trajectory, went through the right lung, and lodged in the right lobe of the liver. The remainder of the gunshots also had a downward trajectory, except the ones to the hands and wrist, which had upward trajectories. Ventura testified that the wounds to the head and back were consistent with Gray being on the ground and the muzzle of the gun being above him. She opined that the trajectories of the other wounds indicated he was not standing straight and moving forward, except for the chest wound. She also testified that the gunshot to the head was immediately fatal, that the wound to the chest would have been fatal within thirty seconds, and that the wound to the back, if not immediately treated, would have been fatal. She testified that Gray's death was caused by gunshot wounds.
Mullins also called Terry McElwrath, who testified that he lived next to Stanley in July 2014 and had mounted a surveillance camera for her on a Tuesday afternoon. After he put up the camera, he drank vodka with Stanley and the "white girl." Later, he saw, in front of his house, Gray who looked confrontational and spoiling for a fight. He testified to having a confrontation with Gray, who unsuccessfully tried to strike him. When he told Gray to go away, Gray did. This was the only time he saw Gray that night. McElwrath testified that Stanley came over to his house several times that night trying to call Mullins on her cell phone. He also testified that, around eleven o'clock that night, Stanley came over and said she needed some gasoline. He described her as seeming abnormal, really scared, and not liking the situation. She also seemed afraid for Huey. McElwrath hid her in his garage and took his bicycle to get the gasoline. When he returned, police cars and firetrucks had the road barricaded. When McElwrath asked Stanley that night why she didn't just call the police, she expressed fear that Gray would kill her. He also testified that Stanley had come over a couple of times during the year trying to get away from Gray or from something that would be going on at her house.
Huey testified that Stanley kept calling her all day on July 29 wanting Huey to go with her, but Huey refused. Around 6:00 p.m., Stanley called again crying, and Huey went to her house. She testified that Stanley and Mullins had been to Dallas and bought a security camera that was being installed by a man she did not know. Stanley told her Mullins was going to pick her up and she did not want to leave the man alone at her house. After Mullins picked Stanley up, Huey stayed at Stanley's house and drank vodka. When Stanley returned, she called Gray and told him to come over because it was her birthday and she had alcohol. Huey said that when Gray came over, they were all three drinking when Stanley suddenly got up and went outside. Huey followed her and overheard Stanley on the telephone with Mullins, telling him that Gray had broken into her house.
Huey also testified that Stanley asked Huey to tell Gray he needed to leave, and then left with Mullins. Huey did so, but Gray refused, and they argued, so she called 9-1-1 around 12:30 a.m. on July 30. Huey acknowledged that she told the 9-1-1 operator that Stanley did not want Gray there and that Stanley was scared of Gray. Huey explained that she did not believe this, but Stanley wanted people to think she was scared. She testified that she was not in fear of Gray when she made the call. She said that, when the police came that time, they did not make Gray leave the house. After the police left, Stanley returned and told Gray he needed to leave. All three of them went back into the house, but Stanley continued to come and go.
Huey testified that, just before the shooting, she and Gray were alone in the house, with Gray sitting on a couch and Huey across from him. Huey heard a lot of racket, went to the front door, and opened it. She said that Mullins had pulled into the driveway so fast that rocks were going everywhere. Huey said that she stepped out of the house and that Mullins threw his door open and got out with a gun in his hand. Mullins walked up on the porch quickly, Huey grabbed the screen door, and Mullins went inside. She testified that Mullins was really angry and did not look like himself. Huey said she stood there because she was scared. After two or three minutes, she heard gunshots. After the gunshots were over, she turned to look and went in the house to find her phone, purse, and cigarette case, but could not find them. She said she got her bicycle out of the house, rode home, and called 9-1-1. She testified that Stanley was not there and that she did not see Stanley after Mullins pulled up. She explained that she left Stanley's house because she was afraid that Mullins would shoot her.
Huey testified that she did not see Gray get violent with anyone that night and that she did not feel afraid of him that night. She claimed that she did not hear anything said after Mullins entered the house and that she did not see Gray with any kind of weapon that night. She denied ever seeing the knife that was recovered at the scene.
Huey acknowledged that, when the police saw her that night, she had blood on her feet and that the officers found bloody footprints at the crime scene. Although she testified that she and Gray had been sitting in the same room in which he was killed, she did not remember going back into that room after he was shot. Huey denied having sex with Gray before the shooting. She acknowledged telling the police that she felt the shooting was a setup and explained that, several months before, Stanley would regularly make comments that she wished Gray was dead.
On cross-examination, Huey testified she did not remember telling the police that she saw the shooting and that Gray would beat Stanley. She said that Stanley told her that Gray beat her, but Huey never saw it. She admitted that she had been drinking that night, but denied that she was drunk. She also admitted that she was an alcoholic and that she told the police that Gray was on the couch when he was shot. She acknowledged that all Mullins heard from Stanley that night was that Gray had broken into the house.
Mullins gave a statement to Detective White on the morning of the shooting, and a second statement the following day. In his initial statement, which was played for the jury, Mullins stated that the day before was Stanley's birthday and that he took her to Dallas to shop, where they got matching watches. He said that, on July 28, Stanley called to tell him Gray was at her house and that Mullins went over to the house with two loaded guns. Gray was not at Stanley's house, but Mullins said he drove around until 2:00 a.m. with the guns looking for him. He also said that Gray would hide butcher knives in the cushions of the couch. During the interview, Mullins played a voicemail message from 12:33 a.m., about forty-five minutes before the shooting, in which Stanley said she had just beaten the hell out of Gray, that Gray and Huey were drunk, and that he needed to go save Huey.
Stanley testified that Mullins gave her money every year for her birthday.
Mullins said that, before going to Stanley's house, he pulled his pistols out of the trunk of his car and put them in the front seat. Mullins then explained what happened after he arrived at Stanley's house. He said that, when he pulled up to the house, Stanley came running out of the house, saw him, and screamed that Gray had Huey. He went up to the door, saw that it was dark inside, and heard Gray and Huey arguing. He called for Huey, who came walking out saying she "didn't have to take this s***." Mullins attributed to Gray the words, "Come here, b****," at which time Mullins moved between Gray and Huey, who was then at the door. Mullins told Gray to settle down, but Gray cussed at him and started coming at him. Mullins said he could not see if Gray had anything in his hand, but assumed that he did since he had stolen a large knife from Mullins. He said that he shot Gray, he thought in the stomach, and that Gray doubled over the couch. Mullins saw Gray reaching under the cushions and began shooting him until he fell on the floor. He said Gray looked like he was still reaching for something, then Gray began jerking and crawling toward him. Mullins then put a bullet in his back and one in his head, at which point he thought Gray was probably dead. Later in his statement, Mullins told White that, the first time he pulled a gun on Gray, Stanley told him to get a knife, but that he did not want to get into a knife fight with Gray. Although he acknowledged Huey and Gray might have simply been having an argument, based on what Stanley had told him before, he thought Huey was about to get hurt. He also told White of an instance that occurred a few nights earlier in which Stanley returned home and Gray, who had been hiding in a closet, jumped on her. Mullins also said that, in a conversation with Stanley earlier in the evening, Stanley told him that she had invited Gray and her friend over so that she could catch him cheating on her.
Stanley, who was called as a witness by Mullins, testified that she lived with Gray for about five years. She described Gray as both a great person and a bad person. She testified that, when Gray took drugs, he did not know when to stop. She said that things began going bad for them when Curtis moved in and that arrangements were made to move Gray and Curtis around the corner to the Wellington Street house. She also testified that, on the morning of July 29, she asked Mullins to take her to Dallas to get her dentures realigned.
Stanley testified that she obtained a surveillance camera because she had had plants stolen off her porch, her tires cut, and a bicycle stolen. She said that McElwrath put it up for her. She also testified that Gray stepped out of the closet one day when she came home to use the bathroom. Stanley said that Gray picked her up by the throat and stuck her up against the wall. She did not remember what day this happened, but thought it might have been the same day she went shopping. Stanley also testified that she got the hell knocked out of her by Gray and that he stuck a knife to her throat one day. She also testified that Gray assaulted her more than once, that he was abusive, and that Gray would knock her across the room. Stanley also said that Gray would beat up every other man that came to her house.
Although the State's objection to Stanley's answer was sustained, the State did not request the trial court to instruct the jury to disregard Stanley's answer, and no instruction was given. Therefore, this evidence was before the jury, and they were free to consider it. Estrada v. State, 313 S.W.3d 274, 313 (Tex. Crim. App. 2010).
See supra note 6.
According to Stanley, on the night of July 29, Gray came barging into her house, and although she tried to stop him, he insisted that he was not leaving and that he "was coming back home." She claimed that, as soon as he walked in the door, Gray took her phone and threw it against the door, breaking it. She did the same to his. She maintained that she was still able to text with it, since she creates text messages using speech-to-text technology. At the time, Tyler and her friend were there, and Huey came back to the house. Stanley testified that she discouraged Huey from coming over, since Huey and Gray did not get along. She also testified that, sometime during that evening, she hit Gray on his back with a two by four while he lay on her couch. She said that Gray just laughed and said, "Hit me harder."
After Huey came over, she and Gray began arguing and cussing each other, and Stanley left to go to McElwrath's house. Stanley said that she knew Huey had called the police and was worried that Huey would be arrested. Stanley remembered leaving voicemail messages for Mullins in which she said she needed him to come save Huey because Huey was intoxicated and Stanley was afraid the police would arrest her and because Huey and Gray were bickering. She testified that, after everything got quiet, she returned to her house because she thought they had left. When she opened the door, she saw Gray and Huey having sex on her couch. She said that Huey appeared to be having a good time. She also said that, when she opened the front door, she could clearly see them on the couch and that she could see all the way to the kitchen window.
Stanley said that Gray took off to her bedroom and that she pursued him and threw her keys at him, causing a cut near his right eye. Gray tried to throw a sheet over her, and she fled through the house and out of the front door hollering. She was unsure whether she saw Gray with a knife that night and did not know if she ever told the police that she did. As she ran out of the house, she saw Mullins in the driveway. She said that as she ran, she was hollering, "I caught [Huey] and [Gray] screwing," and that that was the only thing she said to Mullins. Stanley said that, when she ran outside, she turned the wrong way and turned back to run to her parent's house. When she did, she saw Mullins and Huey standing in the door to her house and then heard four gunshots. She testified that, when she ran out of the door, she feared for her life. She also testified that she thought that Mullins saved both her and Huey's lives.
Stanley denied telling a Greenville police officer that, after the incident, Mullins had her reenact the murder to help her remember. However, Jamie Fuller, a corporal with the GPD, testified that she responded to a call on August 27, 2014, at Stanley's house. She testified that Stanley told her she did not remember some of the things regarding the shooting until Mullins reminded her. She also testified that Stanley referenced something that she had reenacted with Mullins at a different location and mentioned a couch.
Both Mullins and Huey called 9-1-1 after the shooting, and their calls were played for the jury. On the recording, Mullins stated that Gray tried to knife him and he shot him. He said he shot Gray six or seven times, and maybe more. He also said that Stanley and Huey were in the house and came running out when he pulled up and that Gray was coming after them. After Mullins called, Huey called 9-1-1 about ten to fifteen minutes later. Huey said that Mullins and Stanley killed Gray. She also said that she watched them kill him and that she did not want to stay where she was because she was scared.
Mullins argues that his use of deadly force was justified based on self-defense and the defense of a third person. Regarding defense of a third person, Mullins argues that he reasonably believed that Stanley and Huey were endangered by Gray because of Gray's violent nature and his use of drugs and alcohol that night. However, the defense of third person requires that the defendant must "reasonably believe . . . that his intervention is immediately necessary to protect the third person." TEX. PENAL CODE ANN. § 9.33(2).
In regard to Stanley, all of the witnesses agreed that, when Mullins arrived at the residence, Stanley was outside, with Gray nowhere in sight. Based on this evidence, a reasonable jury could find beyond a reasonable doubt that, when viewed from Mullins' standpoint, a person in his circumstances would not reasonably believe that his use of deadly force was immediately necessary to protect Stanley. Regarding Huey, although Mullins maintained that Stanley yelled at him that Gray had Huey, that Huey was inside the house arguing with Gray when he entered the house, and that Gray was pursuing her when Mullins intervened, neither Huey nor Stanley confirmed his statement. Stanley testified that Gray and Huey had been having sex shortly before Mullins' arrival and that Huey had been enjoying herself. She also testified that, when she ran out of the house, she told Mullins that she had caught Huey and Gray having sex. Stanley also testified that, when she looked back at the house, she saw Huey and Mullins outside the front door of the house and heard four gunshots shortly afterward. Huey testified that she was sitting with Gray in the second room when she heard Mullins pull up into the driveway. When she went to the front door, she saw Mullins exit his automobile with a gun. She also testified that she was outside of the residence at the front door when Mullins, who looked angry, rushed into the house and shot Gray. She also testified that she had not felt threatened or afraid of Gray the entire night. As the fact-finder, the jury could reasonably believe the testimony of Huey and Stanley, resolve any discrepancies in their testimony, and disbelieve this part of Mullins' testimony. Based on this evidence, a reasonable jury could find beyond a reasonable doubt that a person in Mullins' circumstances, and viewed from his standpoint, would not reasonably believe that his use of deadly force was immediately necessary to protect Huey. Therefore, we find that the evidence is sufficient to support the jury's finding against Mullins on his claim that he was justified in the shooting in defense of third persons.
As applicable in this case, Mullins' use of deadly force in self-defense would be justified only when and to the degree he reasonably believed that deadly force was immediately necessary to protect himself against Gray's use or attempted use of unlawful deadly force. Mullins argues that his use of deadly force was justified because Gray came at him and because of Gray's size and affinity for knives. However, by his own admission, Mullins stated that Gray dove for the couch after the first shot, that Mullins continued firing until Gray went to the ground, and that he placed fatal gunshots in Gray's back and head after Gray was crawling on the ground. Further, the physical evidence at the scene indicated that Mullins, rather than retreating after Gray dove for the couch, advanced toward Gray, and then shot him repeatedly. Walden testified that, normally, if someone is being aggressive toward another person, the other person will retreat, not move forward or stand still. White testified that, even if Mullins' account was believed, he could have safely retreated after Huey was safely past him, when Gray dove for the couch, or when Gray was on the ground crawling. Based on this evidence, a reasonable jury could find beyond a reasonable doubt that, when viewed from Mullins' standpoint, a person in his circumstances would not reasonably believe that his use of deadly force was immediately necessary to protect himself against Gray's use or attempted use of deadly force.
See supra note 13 (testimony of Dr. Elizabeth Ventura).
In addition, there was testimony that Mullins had a sexual relationship with Stanley and frequently bought her gifts. In his statement, Mullins said that, the night before, he had searched for Gray until two in the morning with his two loaded pistols. Mullins also spoke of a prior incident in which he confronted Gray with a gun, and Stanley, on the night of the shooting, said that Mullins had warned Gray what would happen if he ever came to her house and would not leave. There was also testimony that Mullins was angry when he entered the house and that the knife found at the scene was placed beside Gray after the shooting. Finally, although Mullins said that the house was dark and he could not see if Gray had anything in his hand, Stanley testified that moments earlier she had come in the front door and had seen Huey and Gray in the same room "clear as day." Based on this evidence, a reasonable jury could infer that Mullins had a motive to murder Gray and that he had manufactured his claim of self-defense.
For these reasons, the evidence is sufficient to support the jury's rejection of Mullins' claim of self-defense.
(2) Mullins Failed to Preserve His Claim of Error in Excluding Evidence of Gray's Prior Violent Acts
Mullins also complains that the trial court erred in excluding evidence of specific prior acts of violence committed by Gray. Mullins points to four instances in which he argues the trial court erred in excluding testimony and evidence of specific acts of violence by Gray. Mullins lists Gray's prior felony indictments for family violence, Gray's previously putting a knife to Stanley's throat and knocking her across the room, and the fact that over fifty 9-1-1 calls had been made calling law enforcement to Stanley's residence. The State contends that Mullins has failed to preserve at least one of the complained-of exclusions.
"Preservation of error is a systemic requirement that a[n] . . . appellate court should ordinarily review on its on motion." Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (quoting Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997)). Therefore, we will examine whether Mullins has preserved any of his complaints.
In order to preserve a complaint for appellate review, the party must articulate "the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (quoting TEX. R. APP. P. 33.1(a)(1)(A)). If the proponent of the evidence is the appellant, "it is not enough to tell the judge that evidence is admissible[,] . . . . [he] must have told the judge why the evidence was admissible." Id. Further, Rule 103 of the Texas Rules of Evidence requires the complaining party to make an offer of proof setting forth the substance of the proffered evidence. Mays, 285 S.W.3d at 889 (citing TEX. R. EVID. 103(a)(2)). An offer of proof may be in question and answer form, or it may be a concise statement by counsel. Id. If the offer is 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." Id. at 889-90 (quoting Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998)). In addition, the point of error on appeal must comport with the objection, or in this case, the basis of admissibility, made at trial. See Lucio v. State, 351 S.W.3d 878, 900 (Tex. Crim. App. 2011); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Rundles v. State, 486 S.W.3d 730, 738 (Tex. App.—Texarkana 2016, pet. ref'd).
Regarding the proposed testimony concerning the 9-1-1 calls, Mullins made no offer of proof and did not inform the trial court of the basis for its admissibility. Therefore, he has not preserved this complaint for our review.
Mullins also asked Stanley if she ever filed charges against Gray for family violence. When the State objected, Mullins asserted that there were two indictments for family violence that had subsequently been dropped. However, Mullins never informed the trial court when the indictments were presented or of the factual allegations in the indictments. Further, Mullins did not argue any basis for the admissibility of the indictments. Therefore, this complaint was not preserved for our review.
In one instance in which Mullins sought testimony regarding Gray sticking a knife to Stanley's throat, the State objected based on relevancy. Mullins argued to the trial court only that the State opened up the testimony in its questioning on cross-examination. However, on appeal, Mullins argues that the trial court erred because the testimony was admissible to show the reasonableness of his fear of danger or to show that Gray was the first aggressor. Since his point of error does not comport with the basis of admissibility urged in the trial court, this complaint is also not preserved for our review. See Lucio, 351 S.W.3d at 900.
Stanley testified that Gray had put a knife to her throat two other times and had knocked her around. The State objected to the testimony as non-responsive. Although the trial court sustained the objections, the State did not request the trial court to instruct the jury to disregard the testimony. Consequently, this testimony was before the jury, and they were free to consider it. Estrada, 313 S.W.3d at 313. Therefore, this complaint preserves nothing for our review.
(3) Any Error in Admitting Evidence of Police Training Was Harmless
Mullins also complains that the trial court erred in admitting the testimony of Duff regarding the training that a police officer receives. Mullins argues that the testimony was irrelevant since Duff only offered general testimony of the training and also testified that he did not know whether Mullins had received the training. He also argues that even if the testimony is relevant, its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. Mullins primarily argues that the admission of the testimony impressed on the jury that Mullins should be held to a higher standard than a reasonable person. Mullins makes only a cursory argument that the error was harmful.
See supra note 12.
The testimony was harmless, even if it was error to admit it. A trial court's admission of evidence in violation of a rule of evidence is considered non-constitutional error. See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Unless it affects the "substantial rights" of the defendant, non-constitutional error must be disregarded. TEX. R. APP. P. 44.2(b); Warr v. State, 418 S.W.3d 617, 621 (Tex. App.—Texarkana 2009, no pet.). We will not overturn a conviction for non-constitutional error if, after examining the whole record, we have "fair assurance that the error did not influence the jury, or had but a slight effect." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). In assessing whether the jury's decision was adversely influenced by the error, we "consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case." Baxter v. State, 66 S.W.3d 494, 499 (Tex. Crim. App. 2001); Warr, 418 S.W.3d at 621. We may also consider the jury instructions, the parties' theories, and closing arguments, if material to the appellant's claim. Baxter, 66 S.W.3d at 499; Warr, 418 S.W.3d at 621. Whether the State emphasized the erroneous evidence may also be a factor. Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App. 2002).
As Mullins points out, Duff testified only generally that a person completing the police academy from 1983 through 2016 would have received training in the handling of firearms, including the appropriate use of force. He did not testify as to the specifics of the training and did not assert that Mullins would have received that training when he went through the police academy in 1977. To the contrary, Duff testified that he did not know what training Mullins received or whether Mullins had training in the use of force. In addition, when questioned using hypotheticals based on the facts of this case, Duff testified using a reasonable-person standard and testified that the standard is the same, whether the person is a police officer or a private citizen. Further, as we have set forth above, both the physical evidence and witness testimony, including Mullins' own statement, showed that, when Mullins used deadly force, a person in Mullins' circumstances would not reasonably believe that the use of deadly force was immediately necessary to protect either Stanley or Huey, nor that it was immediately necessary, at least after the first shot, to protect himself. In addition, the jury charge sets forth the definition of "reasonable belief" as that being held by an ordinary and prudent person in the same circumstances as the defendant and does not give any indication that Mullins should be held to any other standard. Finally, it is worth noting that, in its final argument, the State never argued that Mullins should be held to a higher standard or that the jury should consider his police training in determining whether his belief was reasonable. Out of eighteen transcript pages of argument, the State mentioned Mullins being a former officer only once, in the context that, as a former officer, former prosecutor, and current lawyer, he knows the law better than most regarding when he can use deadly force to protect himself.
Based on this record, we have a fair assurance that the complained-of portion of Duff's testimony did not influence the jury's verdict or, at most, had only a slight affect. Since we find that any error by the trial court in admitting Duff's testimony was harmless, we overrule this point of error.
We affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice Date Submitted: March 28, 2017
Date Decided: May 10, 2017 Do Not Publish