No. 05-05-00695-CR
Opinion Filed July 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-51897-WM. Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice WRIGHT.
Derome Patterson appeals his conviction for murder. After the jury found appellant guilty, it assessed punishment at sixty years' confinement. In four issues, appellant contends: (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred by refusing to allow certain cross-examination of a State's witness; and (3) the admission of victim impact testimony was reversible error. We overrule appellant's issues and affirm the trial court's judgment.
Background
Dominque Sharper testified that his older brother, Derrick Price, was shot and killed by appellant. The day Price was killed, Sharper, Price and several others were watching television. A woman named Gwendolyn came into the house and said someone needed to come outside because Precious Gowans and Ledion Blanco were fighting. Sharper, Courtney Hopkins, Tutor, and Pip went outside. According to Sharper, Gowans and Blanco were outside a car "cussing and arguing at each other." Blanco grabbed a TEC-9 machine gun from the car and held it by his side as he and Gowans continued arguing. A short time later, Sharper heard a gunshot. Sharper turned to see who had shot the gun and saw appellant "hanging out the window" of a passing car. Sharper turned and ran into the house to call the police. Price died a short time later. Courtney Hopkins testified that he went outside with Price and Sharper and saw Blanco and Gowans arguing and fighting. Gowans was hitting Blanco with "vice grips," and both of them were bloody. Price began asking Gowans to get out of the car. A short time later, she did so, threatening to call the police. Blanco used his cellular telephone to call "Pete" and asked him to come get Blanco because Gowans had threatened to call the police. As Blanco and Gowans continued to argue, Gowans tried to get Blanco's gun from the front seat of the car. Blanco "snatched" it away before she could get the gun and then held it at his side. About twenty seconds later, Hopkins heard a gunshot from "up the street." Hopkins looked to see who had shot the gun and saw appellant "hanging out the window [of a Crown Victoria]. He had-it was in a black Crown Vic with a white door on it. He was sitting out with like his butt on the door where the window comes up. He's got the rifle out the window," resting it on the top of the car. Appellant got out of the car and ran up to Gowans and got "in her face with the gun." According to Hopkins, appellant was pointing the rifle at Gowans and said, "Bitch, you want to play with these guns, bitch, I'm going to show you how to play with them, ho." Then he ran back to the car. As he did so, Blanco said, "Wait up, y'all, I'm going with y'all." Appellant and Blanco got into the car and drove off. Donna Griffin, appellant's mother, testified that the night before Price was killed, Blanco and his brother, Regional Griffin (Reggie), were standing in the front yard of their home. Someone drove by in a dark Suburban and shot at the house. Donna Griffin recognized the car as one that Gowans's friend, Sherona, often drove. Donna Griffin explained that she knew Gowans because she had a relationship with appellant. Donna Griffin described appellant and Gowans's relationship as "everything but" peaceful or easy going. Antwan Procter, a friend of Blanco and Reggie, testified that he was outside near the intersection of McVey and Eisenhower talking to them the night before Price was killed. As they were talking, a dark-colored Suburban pulled up and someone on the passenger side began shooting. Procter thought there were seven or eight shots fired . Blanco, using a small handgun, returned fire. Appellant testified that he shot and killed Price. Appellant explained that Blanco and Gowans had an "unhealthy, life-threatening relationship." According to appellant, he had seen Gowans "pull guns. I done seen her stab [Blanco]. She burnt up cars. Threatening to send people to shoot him." The night before he shot Price, Gowans shot at appellant and Blanco on two occasions. Although appellant did not actually see Gowans fire the gun, he heard her "yelling and screaming" at Blanco and appellant recognized her voice. Shortly before Price was killed, appellant's brother woke appellant up and told him someone had called and said Gowans was shooting at Blanco. They went to the location the caller told them, but Gowans and Blanco were not there. Because appellant was concerned for Blanco's safety, they went to Gowans's house to check on Blanco. As they drove up, appellant saw Gowans and Blanco near Blanco's car arguing and fighting. Blanco appeared to be trying to get away from Gowans, and appellant saw a gun in Gowans's hand. According to appellant, he decided he "had to fire the shot trying to stop her from shooting him." Appellant denied having any intention to shoot Price. After appellant shot Price, appellant, Blanco, and Reggie left. About two blocks away, appellant got out of the car, threw his rifle into someone's back yard and walked to a friend's house. He was arrested sometime later. At that time, appellant gave a statement to the police. In that statement, appellant stated that Gowans "had something in her hand, but I honestly don't know what it was." After hearing this and other evidence, the jury convicted appellant of murder. This appeal followed. Sufficiency of the Evidence
In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction. Specifically, appellant argues that a rational jury could not have found he committed murder because the evidence shows he acted in defense of a third person. When an appellant challenges the legal sufficiency of the rejection of a defense, we view all the evidence in the light most favorable to the verdict and ask if "any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and also could have found against appellant on the defensive issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). When an appellant challenges the factual sufficiency of the rejection of a defense, we consider all the evidence and determine whether the judgment "is so against the great weight and preponderance of the evidence so as to be manifestly unjust." See Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App. 2004). The State is not required to affirmatively produce evidence to refute a defendant's defense claim, but must prove its case beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. Here, there is no dispute that appellant shot and killed Price-the issue is whether he was justified in doing so. A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31 (Vernon 2003). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32 (Vernon 2003). Section 9.33 of the penal code provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary. See Tex. Pen. Code Ann. § 9.33 (Vernon 2003); Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). Viewing the evidence in the light most favorable to the verdict, the record shows Blanco and Gowans had a troubled and extremely violent relationship. They were outside arguing and fighting. Gowans attempted to get Blanco's gun, but was unsuccessful. She was holding a pair of pliers in her hand and was on one side of Blanco's car; Blanco was on the other side of the car holding a gun at his side. After Gowans threatened to call the police, Blanco made a telephone call and asked someone to come and get him. A short time later, Reggie drove up with appellant in the passenger side of the car. Appellant was sitting in the window with a rifle resting on the roof. In an attempt to shoot Gowans, he shot and killed Price. After shooting at Gowans, appellant, Blanco, and Reggie fled the scene. After reviewing the record, we conclude a rational jury could have found beyond a reasonable doubt that appellant intentionally or knowingly caused Price's death and that he was not justified in using deadly force to protect Blanco. Thus, we conclude the evidence is legally sufficient to support appellant's conviction for murder. We overrule appellant's first issue. Viewing all of the evidence equally, we likewise conclude that the evidence is factually sufficient to support appellant's conviction. We recognize that there is some evidence supporting appellant's theory that he was attempting to protect Blanco from Gowans. For example, three witnesses, including appellant and his mother, testified that Gowans shot at Blanco on two occasions the night before Price was killed. All of the witnesses agreed that Blanco and Gowans had a violent relationship and they were fighting and bloody at the time Price was shot. Further, appellant claimed Gowans had a gun in her hand and it appeared Blanco was trying to get away from her. Nonetheless, this evidence does not render the State's evidence insufficient, it merely raises an issue of credibility. See Saxton, 804 S.W.2d at 914. Other witnesses testified that it was Blanco, not Gowans who had a gun in his hand. And, appellant admitted that he had seen Blanco defend himself against Gowans, most recently the night before Price was killed when Blanco returned fire after Gowans shot at him. Finally, in his statement to the police, appellant stated he did not know what was in Gowans's hand at the time he shot and killed Price. The jury, not this Court, assesses the truth or falsity of the evidence and determines the credibility of the witnesses. After examining all of the evidence under the applicable standard of review, we cannot conclude that the evidence produced by the State is factually insufficient to support appellant's conviction. We overrule appellant's second issue. Cross-Examination
In his third issue, appellant contends the trial court erred by denying his request to cross-examine Sharper regarding his juvenile probation. We cannot agree. We review evidentiary rulings for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Evidence of a juvenile adjudication, outside the realm of a juvenile proceeding, is not admissible for impeachment unless required by the Texas or United States Constitutions. See Tex. R. Evid. 609(d). The confrontation clause of the United States Constitution gives the defendant the right to cross-examine a witness with juvenile records if the cross-examination is reasonably calculated to expose a motive, bias, or interest for the witness to testify. See Davis v. Alaska, 415 U.S. 308 (1974); see also Hoyos v. State, 982 S.W.2d 419, 421 (Tex.Crim.App. 1998); Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996). For example, evidence that a witness with a juvenile record might have been testifying due to pressure from the State and to shift suspicion away from himself is relevant to show bias and thus is admissible under the confrontation clause. See Davis, 415 U.S. at 318. However, the mere fact that a witness might be on probation or have some otherwise "vulnerable relationship" with the State is not alone sufficient to establish bias or prejudice. See Carpenter v. State, 979 S.W.2d 633, 635 (Tex.Crim.App. 1998) (discussing adult witness's pending felony charges). Rather, there must be some causal connection or logical relationship between the witness's "vulnerable relationship" and his testimony at trial. Id.; Foster v. State, 25 S.W.3d 792, 796 (Tex.App.-Waco 2000, pet. ref'd) (not allowing cross-examination about juvenile record proper because charges were not pending and record did not show previous adjudication somehow caused bias or prejudice to testify favorably for the State). Here, the record does not show a causal connection between Sharper's record and the allegations against appellant. Sharper testified outside the presence of the jury that he was placed on probation for possession of a weapon in a school zone several months after his brother was killed. Sharper violated a condition of his probation (failing to attend class) and was placed in the START program. At the time of trial, he was still in the START program. According to Sharper, he had never discussed his testimony with anybody at the START program and had not been given instructions or been told what to testify. The record shows the charges resulting in Sharper being placed on probation arose after Price was killed and after Sharper provided a statement to the police. Appellant was free to use this pre-trial statement to impeach Sharper and did so in an attempt to show Sharper's testimony was inconsistent. Additionally, appellant sought to cross-examine Sharper about his juvenile probation because it would show Sharper had a "like mind set" as that of appellant. Thus, the record does not show that Sharper had a pending charge against him or that, because of his probation status, Sharper had some bias or prejudice to testify favorably for the State. Rather, the record shows appellant sought to inquire into Sharper's probation status for general impeachment purposes. Under these circumstances, we cannot conclude the trial court abused its discretion by refusing to allow appellant to cross-examine Sharper about his probation status. See Foster, 25 S.W.3d at 796. We overrule appellant's third issue. Victim Impact Testimony
In his fourth issue, appellant contends the trial court committed reversible error when it allowed Price's mother, Laurie McCaulie, to testify about how Price's murder had affected her family. Again, we disagree. Generally, victim-impact evidence is admissible at the punishment stage when that evidence has some bearing on the defendant's personal responsibility and moral culpability. Salazar v. State, 90 S.W.3d 330, 335 (Tex.Crim.App. 1997). Such evidence is "designed to show . . . each victim's uniqueness as an individual human being," and is a way to inform "the sentencing authority about the specific harm caused by the crime in question." Id. (citing Payne v. Tennessee, 501 U.S. 808, 823-25 (1991)). Victim impact evidence is designed to remind the jury that murder has foreseeable consequences to the community and the victim's survivors-family members and friends who also suffer harm from murderous conduct. Salazar, 90 S.W.3d at 335. However, the trial court should exercise discretion in permitting evidence about the victim's character and the impact on others' lives while limiting the amount and scope of such testimony. Id. Such evidence may become unfairly prejudicial through sheer volume. Id. Thus, when considering the admissibility of victim impact evidence, we consider the following factors: (1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Id. After considering these factors, we cannot conclude the trial court abused its discretion by allowing the complained-of testimony. McCaulie testified that, after Price's murder, stress had caused her to lose her hair and to be unable to sleep. Since he died, she had been on medication to help her "get through the day." McCaulie explained that her husband had lost his "fishing and hunting buddy" and that Price's siblings were in counseling to help them deal with their grief. She also related how painful it was to follow the ambulance to the hospital and see the lights go off because she knew that her son had died. She also explained how painful it was to see her son "just gone. And it was over something senseless, something that could have been completely avoided." The complained-of testimony consists of six out of approximately 140 pages of testimony at the punishment phase of the trial. McCaulie's testimony was probative because it explained Price's uniqueness and the harm caused by his death, thus relating to appellant's moral culpability and responsibility. McCaulie's testimony was not lengthy and was therefore not prejudicial based on its volume. No other witness testified about the impact of Price's death or his character, making the complained-of testimony the only probative evidence on point. McCaulie's testimony did not measure Price's worth compared to other members of society; nor did it seek to impress the jury in an irrational way. Based on this record, we conclude the testimony was relevant and did not unfairly prejudice appellant. Thus, we cannot conclude the trial court abused its discretion by allowing McCaulie's testimony. See Williams v. State, 176 S.W.3d 476, 483 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (victim's mother testified her son was a sweet young man, who loved everybody, was a good son, had been in the Marines, was never a problem in school, never got into fights, and knowing she would not see him again "ripped her apart."); Richardson v. State, 83 S.W.3d 332, 360-61 (Tex.App.-Corpus Christi 2002, pet. ref'd) (child and forensic psychiatrist testified as to a range of problems victim's children might experience as a result of the trauma surrounding their mother's death and predicted they would suffer from the effects of witnessing the murder for the rest of their lives); Moreno v. State, 38 S.W.3d 774, 778 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (deceased's grandmother testified about the psychological impact crime had on members of deceased's family, including suicide of deceased's uncle). We overrule appellant's fourth issue. Accordingly, we affirm the trial court's judgment.