Opinion
NO. 09-10-00204-CR
01-04-2012
WILLIAM PHILLIP NORRIS, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 07-12-12448-CR
MEMORANDUM OPINION
William Phillip Norris, Jr. appeals from a jury verdict finding him guilty of the murder of Stephen Norris. See Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). Stephen was Norris's brother. The jury sentenced Norris to serve thirty seven and one-half years in prison.
Norris raises five issues in his appeal. In issue one, Norris contends the trial court improperly commented on the evidence to such an extent that he was denied due process. In issue two, Norris contends the trial court allowed a witness, the State's investigator, to remain in the courtroom throughout the trial in violation of Rule 614 of the Texas Rules of Evidence. In issue three, Norris complains that the trial court allowed the State to introduce testimony showing that, before being subjected to a custodial interrogation, Norris invoked his right to speak with an attorney. In issue four, Norris argues the trial court erred by admitting evidence showing that before Stephen's murder, Norris used and sold methamphetamine. In issue five, Norris challenges the trial court's admission of an Information charging Norris with committing a prior crime, assault, on the grounds that admitting the Information violated his right to confront the witnesses being used against him. We overrule all of Norris's issues and affirm the trial court's judgment.
Comment on the Evidence
The record reflects that after the jury returned its verdict of guilty, the State requested, in the jury's presence, that Norris be taken into custody. After the State made its request, the trial court stated, in the jury's presence: "All right. And that will be done. Okay." According to Norris, the trial court's statement caused the jury to act impartially in determining Norris's punishment.
Judges are prohibited from conveying to the jury the judge's opinion about a case. Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979) (providing that a judge shall not, "at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case"). In this case, the judge's remark occurred after the jury returned with its verdict, in which it found Norris guilty of Stephen's murder.
Although Norris did not object to the trial court's ruling on the State's motion asking that Norris be taken into custody, Norris contends that the statement amounts to fundamental error which did not require an objection. According to Norris, the trial court's ruling conveyed the impression to the jurors that Norris needed to be in custody, eliminating the jury's ability to remain impartial in deciding whether probation would be an appropriate punishment.
Generally, to preserve error for appellate review, a defendant must make a timely, specific objection at trial, or he forfeits his complaint on appeal. See Tex. R. App. P. 33.1(a)(1)(A); Moore v. State, 275 S.W.3d 633, 636 (Tex. App.—Beaumont 2009, no pet.) (noting that the contemporaneous objection requirement encompasses a complaint about a trial court's remarks that amount to a comment on the evidence); Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.—Houston [14th Dist.] 2006, pet ref'd) (noting that absent an objection to the trial court's comments, a defendant waives error unless the error is fundamental); Resendez v. State, 160 S.W.3d 181, 189-90 (Tex. App.—Corpus Christi 2005, no pet.) (finding appellant waived his complaint concerning a trial judge's alleged improper comments by failing to object at trial); see also Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (concluding that absent objection to a judge's comment, the complaint is waived unless the comment bears upon the presumption of innocence or vitiates the impartiality of the jury); Moore v. State, 907 S.W.2d 918, 923 (Tex. App.—Houston [1st. Dist.] 1995, pet. ref'd).
Because the jury had already found Norris guilty of Stephen's murder, we conclude that the trial court's ruling had no effect on Norris's right to a presumption of innocence. See Rabago v. State, 75 S.W.3d 561, 562-63 (Tex. App.—San Antonio 2002, pet ref'd) (holding the trial judge's comment regarding appellant's prior conviction and range of punishment did not constitute fundamental error and that appellant's failure to object waived any error); Owens v. State, 786 S.W.2d 805, 809 (Tex. App.—Fort Worth 1990, pet ref'd) (holding that the trial court's comment was not one reasonably calculated to benefit the State or prejudice the defendant where the trial court commented in the presence of the jury that defendant's bond was insufficient after the jury found defendant guilty).
We are also not persuaded by Norris's argument that the trial court's ruling on the State's request, in the jury's presence, vitiated Norris's right to have the jury consider the full range of punishment. The charge allowed the jury to consider probation, and nothing in the record indicates that the jury failed to follow the trial court's instructions. We conclude the trial court's comment was not calculated to benefit the State or to prejudice the defendant. If Norris did not want the State's motion ruled on in the jury's presence, he should have objected to preserve error. We hold that Norris's complaint that the trial court ruled in the jury's presence does not constitute fundamental error, and as such, is not preserved for review on appeal. See Tex. R. App. P. 33.1(a). We overrule issue one.
Exclusion of Witness
In issue two, Norris argues that the State's investigator, Detective Dan Zientek, should have been excluded from the courtroom throughout the trial. See Tex. R. Evid. 614 (Exclusion of Witnesses). The State contends that Norris failed to preserve his complaint because Norris failed to renew his request as to Zientek after Zientek had testified as the State's first witness, even though Norris invoked the rule at the beginning of the trial. We do not agree that Norris's complaint concerning Zientek's presence constitutes unpreserved error.
Rule 614 provides that "[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses[.]" Tex. R. Evid. 614. The purpose of placing witnesses under the rule is to prevent the testimony of one witness from influencing the testimony of another witness, consciously or not. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). Rule 614 contains four exceptions that allow certain witnesses to remain present in the courtroom while other witnesses testify; the exception at issue here permits the presence of "a person whose presence is shown by a party to be essential to the presentation of the party's cause[.]" Tex. R. Evid. 614(3). After opening statements, the State asked to invoke the rule, and the following exchange took place:
[State]: I want to invoke the rule however, Dan Zientek, our lead detective on this, we would ask that he be exempt from the rule because he's going to be assisting us.After Norris's counsel invoked the rule, the record reflects the trial court advised all witnesses to remain outside the courtroom, unless they were parties. The State called Zientek as its first witness. Zientek testified that he had served as the lead investigator in the case, and he identified several photos and a videotape, all of which related to the crime scene. After testifying, Zientek remained in the courtroom and the trial court did not instruct him to leave. Apparently, because Norris's trial counsel thought the trial court's ruling allowed Zientek to remain in the courtroom based on the State's designating him as its lead investigator, Norris did not object when Zientek did not leave after testifying.
The Court: All right. Rule 611, the chief -- the lead investigator is allowed to stay in.
Any objection, [Defense]?
[Defense]: Is he going to testify?
[State]: Yes.
[Defense]: Your Honor, I'd object until he testifies.
The Court: Is he one of your first witnesses?
[State]: He's my very first witness, but we plan on recalling him.
The Court: That works out.
[State]: As it is appropriate, framework.
The Court: That could happen with any witness. So, defendant.
Come on in, sir. We're discussing whether Mr. Zientek should be left in the courtroom or not. And the rules usually allow an expert or a lead investigator in the case to stay in with the State.
And he's going to be your first witness.
[State]: Yes, Your Honor.
The Court: Okay. All right. Then any objection is overruled. Well, I don't even know if you have one.
[Defense]: I do.
The Court: With him being the first witness.
[Defense]: I do object to that.
The Court: That is overruled. Seems that you want to make sure his testimony is purely his and seems that as he is the first witness for the State, that won't be a problem.
Anything else before we bring our jurors out?
[Defense]: We invoke the Rule.
Nonetheless, we are not persuaded that Norris was required to lodge an additional Rule 614 objection to Zientek's presence in the courtroom to preserve his complaint about Zientek's presence during the testimony of others for review on appeal. The record shows that Norris invoked the rule, and that the trial court allowed Zientek to remain in the courtroom because the State had designated him as its lead investigator.
The State bore the burden of proving that Zientek's presence was essential to its case, and on the record here, the State failed to produce any evidence showing that Zientek's presence was essential. See Russell, 155 S.W.3d at 180 ("Under Rule 614, a party has the burden to show that its witness is one of those whose exclusion from the courtroom is not authorized by that Rule."); see also Tex. R. Evid. 614(3). Merely designating a witness as a "lead investigator" is not a sufficient evidentiary basis to except the witness from the reach of Rule 614. See Russell, 155 S.W.3d at 181. "Neither the State nor a defendant who is a natural person may take away the court's authority to exclude one of its witnesses by simply designating the witness." Id. Because the State advised the trial court that it intended to recall Zientek, and in the absence of any evidence showing that Zientek's presence was essential, we conclude that the trial court erred by allowing Zientek to be recalled after hearing the testimony of other witnesses.
We next consider whether the trial court's error requires that we reverse the jury's verdict. Rule 614 is an evidentiary rule, and its violation is considered to be non-constitutional; consequently, a complaint concerning Rule 614 is to be "disregarded unless it affected the appellant's substantial rights." Id. (citing Tex. R. App. P. 44.2(b)). "A substantial right is affected 'when the error has a substantial and injurious effect or influence in determining the jury's verdict.'" Russell, 155 S.W.3d at 179 (quoting Simpson v. State, 119 S.W.3d 262, 266 (Tex. Crim. App. 2003)).
In assessing the harm of allowing Zientek to remain in the courtroom, we consider whether he was influenced in his testimony by the testimony that he heard. See Russell, 155 S.W.3d at 181. With respect to harm, Norris's brief argues that the trial court's error had a substantial and injurious effect in determining the jury's verdict because Zientek heard the testimony of eight other witnesses before completing his testimony. According to Norris, Zientek's testimony corroborated the testimony of the other witnesses he heard testify, specifically the other police officers, the crime scene investigator, and Barrick.
Although Norris argues that Zientek's rebuttal testimony was harmful, Norris fails to direct this Court to the parts of Zientek's testimony that he alleges had a substantial and injurious effect or influence on the jury's determination of his guilt. When recalled to the stand, Zientek testified regarding his interviews with Norris at the crime scene, which were recorded. Zientek also testified about Norris's cell phone records, including the calls that Norris made and received both prior to and after the murder. Zientek then testified regarding a videotape of the crime scene which the trial court admitted into evidence when Norris first testified. Because the testimony Zientek offered after he was recalled as a witness is supported by recordings and documents, we conclude that the trial court's error in allowing Zientek to remain in the courtroom did not have a substantial and injurious effect or influence in determining the jury's verdict. Because the trial court's error did not affect Norris's substantial rights, Rule 44.2(b) requires that it be disregarded. We overrule issue two.
Comment on Norris's Right to Remain Silent
In issue three, Norris complains that the trial court erred by allowing the State to introduce testimony showing that Norris, while being questioned by Zientek, invoked his right to speak to an attorney. Norris argues that a "comment on a defendant's post-arrest silence violates the rights of the accused under the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 10 of the Texas Constitution." See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 10; Doyle v. Ohio, 426 U.S. 610, 618 & n.9, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (denial of due process to use defendant's post-arrest, post-Miranda silence for impeachment purposes); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995). The State argues that Norris failed to preserve this complaint for our review.
Evidence of a defendant's invoking his right to counsel is inadmissible as evidence of the defendant's guilt. Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991). The following exchange took place during Zientek's testimony:
[State]: Okay. I'm tendering State's Exhibit 49 to opposing counsel moving to admit into evidence at this time.
The Court: Okay. Any objection?
[Defense]: There's no interview on it, is there?
[Zientek]: No, there's not.
[State]: There's an attempted interview.
[Defense]: Yes, I do object that, Your Honor. Maybe I should approach.
The Court: Okay.
(BENCH CONFERENCE OUTSIDE THE HEARING OF THE JURY)
[Defense]: If it's the one I've seen, he simply declines that he [be] interviewed. And I don't think that you can make anything out of someone exercising their constitutional right, even if it's belated. And so
The Court: I don't think that you can introduce that evidence just for the purpose of showing he invoked his Fifth Amendment right.
[Defense]: He's refuses to be interviewed at all.
[State]: If you remember in opening, [the Defense] told this jury: I told him don't talk. So, I think he's kind of waived any objection to that. I just wanted to go to the jury.
The Court: I'm not so sure.
[Defense]: I don't think so. I gave him the best advice you can give a client.
The Court: Hold on. You're winning right now, [Defense].
[Defense]: I'm sorry. I'm so sorry. I'm not winning a major point.
The Court: I know. I think he's right.
[State]: All right.
The Court: Your witness could say that he, you know, refused an interview or whatever or if he wants to say there wasn't one.
[State]: Okay. Thank you, Judge.
(BENCH CONFERENCE CONCLUDED.)
[State]: Okay. Detective, when you-all went back to the station, did you read Miranda warnings to the defendant again?
[Zientek]: No, ma'am. It's after I had set up the video recorder, as soon as we entered the room, Billy Norris expressed that he wanted to speak to his attorney before talking to us.
The record reflects that the prosecutor asked whether Zientek read Miranda warnings to Norris, not whether Norris invoked his right to counsel. A question regarding whether a Miranda warning was given is not an improper question, and when Zientek was asked that question, Norris did not object to it. See Mathieu v. State, 992 S.W.2d 725, 729-30 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ("[T]he reading of the Miranda warnings by themselves are not suppressible, unless the reading in conjunction with the turning down of the audio could lead the jury to the conclusion that the defendant invoked his rights.").
In this case, the record shows that in responding to the prosecutor's question, Zientek volunteered information not required to answer the question he was asked. When Zientek elaborated on the question before him by explaining why he did not give Norris additional Miranda warnings, Norris did not object that Zientek's answer was unresponsive, he did not request an instruction that the jury disregard part of Zientek's response, nor did he move for a mistrial.
To preserve a complaint for appellate review, the appellant must make a timely request, objection, or motion that states the grounds for the ruling sought from the trial court with sufficient specificity to make the court aware of the complaint. Tex. R. App. P. 33.1(a). With some exceptions, a defendant in a criminal case waives error, even constitutional error, when he fails to lodge a timely objection or fails to request proper relief. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (noting "'that even constitutional guarantees can be waived by failure to object properly at trial'") (citation omitted), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997); Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988) (noting that "a failure to object can even waive an error involving constitutional rights"). A defendant waives his objection on appeal if he fails to object at trial to questions inquiring about his post-arrest silence. See Smith v. State, 721 S.W.2d 844, 854-55 (Tex. Crim. App. 1986) (holding that defendant's complaint about prosecutor's question on post-arrest silence were not preserved for review in the absence of an objection to the prosecutor's questions); Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994) (determining that complaint concerning the admission of testimony regarding defendant's post-arrest silence was waived in absence of objection); see also Rodriguez v. State, 137 S.W.3d 228, 229-30 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
Norris did not lodge an objection to the question or object to the non-responsive portion of Zientek's answer. Norris's complaint that the trial court erred in admitting Zientek's response, and his complaint regarding the trial court's suggestion made during a bench conference with the attorneys about what Zientek might say in response to the prosecutor's question, are not the type of complaints the Court of Criminal Appeals has allowed to be raised in the absence of a timely and specific objection, motion, or complaint. See Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (explaining that error preservation applies except for two small categories of errors: "violations of 'rights which are waivable only' and denials of 'absolute systemic requirements'") (citing Marin, 851 S.W.2d at 279-80). We conclude that Norris failed to preserve his complaints for our review because he failed to lodge a timely objection to the unresponsive portion of Zientek's answer. Issue three is overruled.
Extraneous Offenses
In issue four, Norris contends the trial court erred in admitting testimony from two witnesses, Margie Mullican and Kenneth Sims, addressing Norris's past use and sale of methamphetamine. According to Norris, the evidence was not admissible under any of Rule 404's exceptions. See Tex. R. Evid. 404 (Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes). In response, the State argues that Norris objected at trial to Mullican's testimony based on its relevance, but did not object that the State failed to show that Mullican's testimony was admissible based on one of the exceptions in Rule 404(b). See Tex. R. Evid. 402 (Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible); Tex. R. Evid. 404(b) (Other Crimes, Wrongs or Acts).
The record shows that the jury first heard testimony in the case on April 1, and that the parties completed the presentation of evidence in the guilt-innocence phase of the trial on April 8. Mullican and Sims were called as witnesses on April 7, just before the State rested. After the State informed the trial court that it intended to call Mullican and that her testimony would include evidence regarding Norris's past use of methamphetamine, as well as his violent nature when using methamphetamine, Norris's attorney objected, and said: "I don't think that[] goes to self-defense or not." The prosecutor then explained why she felt the evidence was relevant, and Norris's attorney again stated that he did not think that Norris's past use of methamphetamine "goes to the issue of self-defense in any way. It's just a plain ol' extraneous offense." At that point, the trial court explained why the court thought the evidence was relevant, and ruled that it was admissible. Norris's attorney asked that the trial court "note my exception."
After the trial court overruled Norris's objection, Mullican testified that Norris had sold methamphetamine to her and others; assaulted her; and when Norris was high on methamphetamine, he shot at her as she drove away in her car. Regarding the relationship that had existed between Stephen and Norris, Mullican testified that Norris supplied Stephen with drugs, argued with Stephen on multiple occasions about money and drugs, shot at Stephen, and had threatened to "get" Stephen.
Norris also complains the trial court erred in admitting the testimony of Sims addressing Norris's past use and sale of methamphetamine. On appeal, Norris argues that "the evidence was not admissible under any of the exceptions of 404(b)." With respect to Sims's testimony about Norris's past use and sale of methamphetamine, the record shows that Norris failed to object to either the relevance or to the prejudice related to Sims's testimony concerning Norris's use and sale of drugs.
Initially, we evaluate whether Norris preserved his complaints regarding the testimony about Norris's prior use and sale of methamphetamine. Regarding Mullican's testimony, the record shows that Norris made only a relevance objection. Even though Norris was not required to cite that he was objecting to Mullican's testimony under Rule 404(b) at trial, a relevance objection alone is not sufficient to preserve error based on Rule 404(b) if the circumstances are insufficient to notify the trial court of the nature of the defendant's complaint. See Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.— Houston [14th Dist.] 2006, pet. ref'd) (citing Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh'g)); see also Batiste v. State, 217 S.W.3d 74, 81-82 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Here, it is not apparent from the record that the trial court was aware that Norris desired to raise a Rule 404 objection to Mullican's testimony. See Lopez, 200 S.W.3d at 251. With respect to Sims's testimony, the record shows that Norris lodged no objection whatsoever regarding Norris's use and sale of drugs.
Because Norris's relevance objection did not preserve his Rule 404 complaints, and because he lodged no objection to the testimony about his past use and sale of methamphetamine as described by Sims, we conclude that Norris's Rule 404 complaints are not preserved for our review. See Tex. R. App. P. 33.1(a). We overrule issue four.
Admission of the Information
In issue five, Norris complains the trial court erred by admitting, over his Confrontation Clause objections, a certified copy of an Information charging Norris with committing an assault in 1993 by kicking R.H. and striking R.H. with his hand. Norris acknowledges that the trial court also admitted a certified copy of a motion to dismiss the Information.
The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI; see Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
In 1994, the Montgomery County Assistant County Attorney presented the Information alleging that an assault occurred in 1993 to the County Court at Law. When the trial court admitted the Information at Norris's murder trial, the trial court removed and did not admit an accompanying affidavit providing evidence of the facts on which the Information was based.
In 1995, in the assault case, the State filed a motion to dismiss the Information. The evidence before Norris's jury in Norris's murder trial includes an order signed by the judge in Norris's assault case dismissing the assault charge.
The Confrontation Clause bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify at the trial and the defendant had a prior opportunity to cross-examine the witness. Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005) (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). When the State offered a number of pleadings filed in connection with a case alleging that Norris had assaulted R.H., the trial court overruled Norris's Confrontation Clause objection and admitted the Information "under 803(8) as a public record and report[.]" See Tex. R. Evid. 803.8.
Norris argues that the Information concerning the claim he had assaulted R.H. is "testimonial in nature because it is an ex parte in-court testimony or its functional equivalent as a pretrial statement that the declarant reasonabl[y] expected to be used prosecutorally." See Crawford, 541 U.S. at 51-52. The State argues the Information is not testimonial, and concludes that the trial court correctly overruled Norris's Confrontation Clause objection.
Generally, a statement is "'testimonial' if it is a solemn declaration made for the purpose of establishing some fact." Russeau, 171 S.W.3d at 880 (citing Crawford, 541 U.S. at 51). The Confrontation Clause applies to witnesses against the accused, because an accuser who makes a formal statement to government officers bears testimony. Crawford, 541 U.S. at 51. However, the Confrontation Clause does not apply to evidence that is not "testimonial," and the determination of whether evidence is "testimonial" is decided as a question of law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) ("Whether a statement is testimonial is a question of law."). We apply a de novo standard in determining whether trial courts reach proper conclusions when deciding whether evidence should be considered to be "testimonial." Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
Nevertheless, we need not decide whether the contents of the Information are testimonial to resolve Norris's appeal. Even if we were to conclude that the trial court committed error by admitting the Information, its introduction in this case was harmless, beyond reasonable doubt. See Langham, 305 S.W.3d at 582 (stating that "the reviewing court must be able to declare itself satisfied, to a level of confidence beyond a reasonable doubt, that the [Crawford]error did not contribute to the conviction") (citation and internal quotations omitted). In determining whether admitting the Information was harmless, we consider the following: (1) the importance of the out-of-court statement to the State's case, (2) whether the out-of-court statement was cumulative of other evidence, (3) the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points, and (4) the overall strength of the prosecution's case. Id. We also consider "the source and nature of the error, to what extent, if any, it was emphasized by the State, and how weighty the jury may have found the erroneously admitted evidence to be compared to the balance of the evidence with respect to the element or defensive issue to which it is relevant." Id. Additionally, we consider "the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at that verdict--whether, in other words, the error adversely affected the integrity of the process leading to the conviction." Id. In considering these factors, we are to determine "whether there is a reasonable possibility that the Crawford error moved the jury from a state of non-persuasion to one of persuasion on a particular issue." Id. (citation and internal quotations omitted). To affirm Norris's conviction, we must be satisfied, beyond a reasonable doubt, that the admission of the Information did not contribute to Norris's conviction. See id.
In Norris's case, the Information, along with an order dismissing the Information, were admitted into evidence during the guilt-innocence phase of the trial. The State's motion to dismiss the Information reflects that the State sought to have the assault charges dismissed "[i]n the [i]nterest of [j]ustice." Thus, from the evidence admitted at Norris's murder trial, the jury would clearly have known that the State's claim that Norris assaulted R.H. in 1993 was never established as having actually occurred.
The importance of the Information in Norris's case appears to be related to the State's efforts to cross-examine Norris's uncle, John Norris, as the Information and the documents related to it were admitted while John was being cross-examined. On direct examination, John testified that he knew Stephen to be "mean and vicious[,] and a thug." On cross-examination, John testified that he had heard that Norris had been arrested for assaulting his girlfriend, and explained he had also heard that Norris had stabbed someone. However, when asked whether he had heard about Norris assaulting R.H., John first stated that he had heard of the assault, but shortly after asserted that he was confused about the assault he was being asked about and stated that he did not know R.H. After denying that he had heard about Norris having assaulted R.H., the State asked the trial court to admit certified copies of the Information, the affidavit attesting to the assault, the State's motion to dismiss the charge, and the order of dismissal. The trial court removed the affidavit attesting to the facts of the assault, but admitted the Information, the motion to dismiss the assault charge, and the order of dismissal into evidence. Thus, the jury may have regarded the fact that Norris was charged with an assault, and John's claimed lack of knowledge about the charge as showing that John's claim that he had not heard about the assault was an unreliable response, particularly because John first acknowledged that he had heard about it.
While no witnesses testified that the 1993 assault had actually occurred, there was other evidence that addressed specific instances involving Norris's tendency to resort to violence. Keith McMaster, one of Norris's witnesses who testified that Norris was a nice person, also testified that he was aware that Norris had stabbed someone. Kenneth Sims, a witness called by the State, testified that Norris had stabbed him and that Norris had a reputation for being violent. Margie Mullican, another witness called by the State, testified that Norris had assaulted her and on another occasion, Norris shot at her and at Stephen. Because there were other specific instances relating to Norris's past history of violence that were admitted without objection, and these instances included instances of more deadly conduct than that alleged in the Information, we conclude that the claim that Norris assaulted R.H., even if true, was cumulative of other testimony addressing Norris's propensity for violent behavior.
We also consider whether the State relied on the objected-to testimony in final argument. In final argument, in both the guilt-innocence and punishment phases of the trial, the record shows that the State did not mention the alleged 1993 assault when discussing Norris's extraneous offenses. Thus, we conclude that in final argument the State did not rely on the Information to prove that Norris had, in fact, assaulted R.H.
We also consider whether the admission of the Information persuaded the jury to increase Norris's punishment. With respect to punishment, we note the jury sentenced Norris to a sentence of thirty-seven and one-half years when it could have given him a much longer sentence of up to ninety-nine years in prison. The State also did not rely on the Information in arguing what punishment the jury should assess. We conclude that beyond reasonable doubt, the admission of the Information did not cause the jury to increase Norris's punishment.
Finally, we consider whether admitting the Information affected the jury's decision to convict Norris of murder. Norris did not claim that he did not shoot Stephen; instead, his defense was that he shot Stephen in self-defense. The shooting occurred at the home of Buddy Norris, Norris and Stephen's father. With respect to the circumstances that led to Stephen's death, the jury had substantial testimony showing that Norris was the aggressor and that Norris had not acted in self-defense. Joseph Barricks, who was working with Stephen the day he was shot, went with Stephen to Buddy's house to borrow a power washer. According to Barricks, Stephen and Buddy were getting along fine, and that testimony tends to refute Buddy's testimony that he and Stephen were arguing. Barricks, who was standing outside Buddy's house when Norris pulled into the driveway, stated that as Norris approached Buddy's house he saw Norris's truck slide, hit a tree, and he saw Norris get out of his truck with a gun in his hand. According to Barricks, Norris said: "'I'm about to kill [Stephen].'" Barricks was able to warn Stephen that Norris had a gun, and before hearing a gunshot, Barricks heard Norris say that Stephen had "[screwed] him over $2,000 or something[.]" Barricks explained that when Norris's first shot missed, Stephen stood up and asked Norris what he was doing. Barricks explained that at that point, he ran away from the house, but as he was leaving, he heard five or six more shots. After Norris left Buddy's house, Barricks returned, saw Stephen on the ground bleeding, and saw Buddy using the phone to request help. According to Barricks, Stephen did not have a gun with him that day.
Generally, a person is justified in using deadly force if he reasonably believes that deadly force is immediately necessary for his protection against another's use or attempted use of unlawful deadly force, or to prevent another from the "imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery." Tex. Penal Code Ann. § 9.32(a) (West 2011). As the fact-finder and judge of the credibility of the witnesses, the jury was free to believe the testimony refuting Norris's claim of self-defense and to disbelieve the testimony tending to show that Stephen had been the aggressor, thereby rationally determining that Norris's use of deadly force was not immediately necessary. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Based on Barricks's testimony, the jury was free to reject Norris's claim that his use of deadly force was immediately necessary to protect himself from the force that Stephen had available to him or to prevent Stephen from murdering Buddy. See Tex. Penal Code Ann. § 9.32(a) (providing elements for proving a claim of self-defense).
After carefully considering the record as a whole, we conclude that, even if the jury treated the Information as testimony concerning a 1993 assault, the Information did not, beyond reasonable doubt, contribute to Norris's conviction or to his punishment. See Langham, 305 S.W.3d at 582. We further conclude that, in light of the admission of other instances that address Norris's past use of violence, that the admission of the Information did not move the jury from a decision resulting in Norris's acquittal or from a decision to give him a lighter sentence. Id. Because we have concluded that the admission of the Information, if error, was harmless, we overrule issue five.
Having overruled all of Norris's issues, we affirm the trial court's judgment.
AFFIRMED.
_________________
HOLLIS HORTON
Justice
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.