Summary
holding testimony—that the night before the murder, appellant took decedent's phone from her and "pushed her up against the truck and grabbed her arm"—was probative of appellant's relationship with decedent and did not suggest decision on an improper basis
Summary of this case from Zafar v. StateOpinion
No. 05-09-01337-CR
Opinion Filed May 16, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-00694-R.
Before Justices RICHTER, LANG and MYERS.
OPINION
Following a plea of not guilty, appellant Joe Donovan Sanders was convicted by a jury of murder. Sanders pleaded true to one enhancement paragraph, and the jury found the enhancement paragraph true. Punishment was assessed by the jury at imprisonment for life. In five issues on appeal, Sanders contends the evidence is legally and factually insufficient to support his conviction and the trial court erred by overruling his objections to hearsay testimony and the prosecutor's jury arguments. We decide against Sanders on all of these issues. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Tina Walker ("decedent") and her three sons, Katorrian Walker, Quinton Walker, and Christopher, lived in an apartment in Duncanville, Texas. Sanders sometimes lived there. Decedent and Sanders dated for about three or four years and he was the father of decedent's son Christopher. Sanders worked as a day laborer at an auto auction in Grand Prairie, Texas. Keithon Bibles testified at trial that he met decedent for the first time at a car wash on March 1, 2006. They talked, exchanged phone numbers, and began talking frequently by phone. On the evening of March 21, 2006, Bibles called decedent's apartment land line. A man answered and hung up on Bibles. Bibles called back and the same man hung up on him again, but on a third call by Bibles, the man gave the phone to decedent. Katorrian, decedent's oldest son, testified he was in decedent's apartment that evening. He heard the phone ring and heard his mother talking on the phone. Then, he testified, Sanders took the phone from decedent and began arguing with "whoever was on the other line." Katorrian testified decedent was "upset" and told Sanders to go to her truck and get "his stuff." According to Katorrian, Sanders and decedent left the apartment. Katorrian testified decedent was gone from the apartment for about twenty minutes, then returned with her friend Esse Edwards. Edwards testified she was decedent's best friend and lived in the same apartment complex. Edwards stated she received a phone call from decedent on the evening of March 21, 2006. According to Edwards, decedent told her she had an argument with Sanders and he pushed her up against her truck and grabbed her arm. Edwards testified decedent "was terrified" and told Edwards she had sprayed Sanders with pepper spray that had been left in the truck. Edwards stated that decedent said she "needed" Edwards to come to her apartment immediately, and Edwards did so. The two of them walked the grounds of the apartment complex to make sure Sanders was gone, then returned to decedent's apartment to talk. Decedent's mother, Lois Rogers, testified decedent's normal routine was to bring her two younger sons, Quinton and Christopher, to Rogers's house between 4:30 and 5 a.m. before heading to work. Katorrian was in high school and would walk to school. Decedent normally worked until noon. At 3:15 p.m., decedent would pick up Quinton from school. Between 3:00 and 3:30 p.m., decedent would pick up Christopher from Rogers's house. On March 22, 2006, the date of decedent's death, Rogers saw decedent at 4:30 a.m. when decedent dropped off her younger sons. Lisa Moore, a co-worker of Sanders, testified that on that date, Sanders was already at the auto auction when she arrived with another co-worker, Stephen Whitaker, at approximately 4:15 or 4:30 a.m. Moore testified she asked Sanders to drive her in Whitaker's truck to her probation appointment in Arlington that was at a location about thirty minutes away from the auto auction. The meeting took about fifteen minutes. The meeting was set for 7:45 a.m., and Moore stated she was "pretty much on time." After her probation meeting, Moore and Sanders stopped at decedent's apartment to pick up some clothes. Moore testified she "asked him what was the purpose of going over there" and Sanders responded "he didn't have anywhere to put his clothes." Moore told him she "would watch his stuff for him." They arrived at the apartment at approximately 8:30 or 8:45 a.m. Sanders made two trips to retrieve clothes in "clear" bags from the apartment. He put the bags in Whitaker's truck. Then, Moore and Sanders returned to the auto auction, arriving around 9 a.m. Katorrian testified that sometime that morning, while getting ready for school at decedent's apartment, he saw "a black blur walk across my blinds" and did not see who it was. He thought it might be his friend, Kenon. He called Kenon at about 8:10 a.m., but found that his friend was still asleep. At 11:29 a.m., decedent called Rogers's house to "check in" with Christopher, which she did each day at approximately that same time. At around 11:30 a.m., Bibles spoke with decedent on the phone. Bibles testified decedent told him she "was going where her billfolder was at." At 11:46 a.m., decedent called Marcus Francis, a supervisor of the employees at the auto auction. According to Francis, decedent was "upset about a wallet being stolen." Francis testified decedent wanted him to contact Sanders and "get her wallet returned." Francis located Sanders at the auto auction and let him know he had talked to decedent and why she was upset. Sometime before noon, decedent called Francis again regarding the same topic. Shortly thereafter, Francis stated, decedent arrived at the auto auction, located Sanders's private belongings, and retrieved her wallet. Then, Francis heard decedent arguing with someone on her cell phone. Decedent left the auto auction alone. There were calls made from decedent's apartment land line phone to her cell phone at 11:52 a.m., 11:53 a.m., 11:55 a.m., and 12:02 p.m. The first two calls went to decedent's voice mail. The 11:55 call lasted six minutes and the 12:02 call lasted more than ten minutes. Bibles testified he talked to decedent at approximately 12:30 p.m., after she "got home from taking care of whatever business she had to take care of." According to Bibles, they made plans for him to come to her home "and say what's up and spend a few minutes with her before the kids got home." The last call answered on decedent's cell phone was a call from Bibles at 12:36 p.m. On the way to see decedent as they had planned, Bibles called her to get directions, but she did not answer. Bibles made several subsequent calls to decedent, but did not reach her. Britney Brewer testified she lived with her grandparents in an apartment around the corner from decedent's apartment in the same complex. She knew Katorrian, his brothers, and his mother, and had seen "a guy that came around the house." Around 2 p.m. on the date of decedent's death, Brewer was sitting in her car in the apartment complex parking lot listening to music. She testified she saw "the dude, medium height, brown skin with glasses; he walked to the dumpster the first time. He stopped and he just kept walking to the apartment. Then I seen him again, like, I say ten minutes later I seen him again come to the trash can with another trash bag, threw that away, and after that I didn't see him anymore." Brewer stated the person she saw was the man she had seen before at decedent's apartment. She testified that after the murder, the police showed her a photo lineup, but she was unable to pick out anybody. On cross-examination, Brewer testified she was told by "somebody" that a person was killed in decedent's apartment by a man who stays over there sometimes. On redirect examination, she stated that her testimony was based on what she saw and knew, and not on what she had heard from others. At 2:22 p.m. on the date of decedent's murder, Moore received a call on her cell phone from Sanders, who said he was at a pay phone at the Kroger on West Camp Wisdom Road in Duncanville. Sanders asked Moore to help him find a ride downtown to the Greyhound bus station. Moore asked Whitaker and he agreed to give Sanders a ride. According to Moore, Sanders "needed to go to Hillsboro to pick up a check and he was going to be leaving that day." Moore testified Sanders told her he had to leave work because "the police was after him." Moore lent Sanders $20. According to a surveillance tape, Sanders pawned a necklace at the First Cash Pawn Shop on West Camp Wisdom Road in Duncanville shortly after 2 p.m. The surveillance tape from the pawn shop showed Sanders was wearing blue jeans, a black doo rag, and a blue and gray jacket. Sanders had with him a red and black duffle bag. The pawn shop receipt, for one necklace, showed the time as 2:25 p.m. Sanders provided the pawn shop with his identification for the transaction as required by law. At 2:54 p.m., Sanders called Moore from a pay phone in Duncanville located between a Dollar General store and a Popeye's Chicken restaurant. Sanders asked about the ride again and Moore passed the phone to Whitaker. After work at the auto auction, around 3 p.m., Moore and Whitaker picked up Sanders on Camp Wisdom Road in Duncanville. Sanders had with him a Kroger bag with clothes in it. According to Moore, Sanders was wearing navy pants instead of the jeans he had on earlier. They dropped Moore at her house, and Sanders gave Moore some things he had taken earlier from decedent's apartment, asking her to keep the items at her house. Around 3:30 p.m., Sanders was dropped off at the Greyhound bus station. At approximately 3:45 p.m., Quinton called Rogers because decedent had not arrived to pick him up after school. Quinton testified that prior to calling Rogers, he called his mother and left a voice mail. He testified he did not talk to his mother in the afternoon. Cindy Easley, a teacher's assistant at the school Quinton attended, testified she was with Quinton after school that day while he waited for his mother to pick him up. According to Easley, Quinton called his mother on his cell phone and told Easley she did not answer. Between approximately 3:30 and 3:45 p.m., Katorrian called decedent's cell phone, but decedent did not answer. Around 4 p.m. or after, Rogers picked up Quinton from school and took Christopher and Quinton to decedent's apartment. Quinton had a key to the apartment, but the door was already unlocked. Quinton went inside. Rogers testified Quinton returned to the car and told her "my mother is laying in the floor, blood is everywhere and she's not moving." Rogers called 911. At approximately 4:10 p.m., Sanders called Moore and told her he was at the Greyhound bus station. Sanders asked Moore to call his brother-in-law and ask him to pick up Sanders's check. Around 4:30 p.m., Officer Jerome Christenson, a patrol officer with the Duncanville Police Department, was dispatched to decedent's apartment. Decedent's body was in the doorway to the master bathroom. She had been stabbed in the neck. Christenson testified he "could see that there was a female body there laying back on her back, hands almost laying like this, just a death stare looking straight up at the ceiling, and a lot of dried blood around her neck." According to Christenson, the apartment had been "ransacked" and was "very much in a state of disarray." Katorrian reported to police that items had been taken and he compiled a list of those items. On the following day, Sanders was taken into custody in Hillsboro after turning himself in to the police. Police searched trash bags in commercial dumpsters near the pay phones used by Sanders on the day of the murder. In one of the trash bags searched, police found a pair of blue jeans, a green shirt, a pair of underwear, and two socks. Sanders's name was written on the underwear and on one of the socks. DNA testing showed that a stain on the knee of the jeans matched decedent's blood. The items reported by Katorrian as missing were found to be among the items Sanders gave to Moore for safe keeping. Additionally, Katorrian identified a necklace police recovered from the pawn shop as his necklace that he had last seen in a drawer at decedent's apartment. During closing argument, the State argued "[Quinton] did not talk to his mom. The reason why he did not talk to his mom, because you have the time of death at around noon to 2:22." Counsel for Sanders objected, stating "that's pure speculation." The trial court sustained the objection, instructed the jury to disregard, and denied Sanders's motion for mistrial. Later in its closing argument, the State argued But if she's standing there at her vanity and it's somebody that she knows is already in her apartment, it's the defendant who's been there, she might look at him over her shoulder. She's just going to look at him. And if he walks up with something behind his back, she's just going to look. If he reaches up and plunges that knife into her throat, she's not going to see it coming. And then he's going to drop her down and lay her on the ground and it's going to happen quick. And that [medical examiner] told you she's going to bleed out. Look at how she's laying with her eyes open. Tina Walker watched Joe Sanders kill her. She watched him. Sanders's counsel objected, stating, "Judge, I'm going to have to object to this if she's trying to argu[e] that there's some factual validity to what she's saying." The State responded that its argument was "a reasonable deduction from the evidence." The trial court overruled Sanders's objection. Following Sanders's conviction by the jury, the assessment of punishment, and the trial court's judgment in accordance therewith, this appeal was timely filed.II. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, Sanders challenges the legal and factual sufficiency of the evidence to support his conviction for murder.A. Standard of Review
The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 899. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) ("A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment."); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) ("The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence."). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). "Under the Jackson test, we permit juries to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial." Hooper v. State, 214 S.W.3d 9, 13, 15 (Tex. Crim. App. 2007). Courts of appeals should "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Id. at 16-17.B. Applicable Law
The Texas Penal Code provides in relevant part that a person commits murder if he "(1) intentionally or knowingly causes the death of an individual; [or] (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code Ann. § 19.02(b)(1)-(2) (West 2003).C. Application of Law to Facts
Sanders argues the evidence is insufficient to support his conviction for murder because "there were too many inconsistencies in the State's evidence." According to Sanders, the alleged "inconsistencies" include (1) Brewer, who Sanders contends was the only witness who placed Sanders at the scene during the time the State "speculated" the murder occurred, could not identify Sanders and had heard others describe the suspect before she spoke to police; (2) police interviewed a neighbor of decedent who did not testify at trial and whose account of events allegedly would have put the time of the murder later, when Sanders was at the bus station; (3) a police officer testified that both Quinton and Easley told police Quinton had talked to his mother after school on the day of the murder; (4) the "black blur" seen by Katorrian on the morning of the murder could not have been Sanders because he did not arrive at the apartment until after Katorrian would have left for school; (5) Bibles acted suspiciously when, upon learning of the murder, he drove to the office of a constable who was a friend of his, rather than to the police station; (6) it was not possible for the crime lab to determine when the decedent's DNA was deposited on Sanders's clothing; (7) the amount of blood on Sanders's clothing was not consistent with the type of murder, as there "would have been copious amounts of blood"; (8) Sanders would not have had to "ransack" the apartment to find valuables; (9) Sanders did not attempt to hide his identity when pawning the necklace; (10) because Sanders had mentioned to Moore early in the morning that he planned to go to Hillsboro, he "was not fleeing Dallas because he had committed a murder"; (11) the fact that no witness saw Sanders at the auto auction after noon on the day of the murder does not mean he was not there; and (12) the State "could not explain" the phone calls from decedent's apartment land line to her cell phone. Sanders's argument challenges the credibility of numerous witnesses and the reasonableness of inferences drawn from the evidence. However, the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Jackson, 443 U.S. at 326; King, 29 S.W.3d at 562; Jones, 944 S.W.2d at 647. The jury is free to believe or disbelieve the testimony of any witness, to reconcile conflicts in the testimony, and to accept or reject any or all of the evidence of either side. See Bottenfield v. State, 77 S.W.3d 349, 355 (Tex. App.-Fort Worth 2002, pet. ref'd). Thus, the jury in this case was entitled to believe or disbelieve any of the testimony and resolve any "inconsistencies" in the State's favor. Further, "we permit juries to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial." Hooper, 214 S.W.3d at 13. The State asserts (1) DNA testing revealed that the blood on Sanders's jeans was decedent's; (2) Sanders had access to decedent's apartment and no witness testified as to his whereabouts between approximately noon and 2 p.m.; and (3) just after 2 p.m., Sanders pawned an item stolen from decedent's apartment and changed his clothing, disposing of the blood-stained jeans. Additionally, the State argues the jury could have reasonably inferred (1) decedent and Sanders were arguing about their own relationship and decedent's relationship with Bibles the night before the murder, and that disagreement escalated to the point where decedent sprayed Sanders with pepper spray in self-defense and (2) Sanders left the auto auction and killed decedent in the apartment sometime between noon and 2 p.m. We agree. On this record, viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact would not be precluded from finding Sanders committed the essential elements of murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Accordingly, we decide Sanders's first and second issues against him.III. OBJECTIONS TO THE EVIDENCE
In his third issue, Sanders contends the "proffered evidence" of an argument between decedent and Sanders on the night before the murder, including testimony of both Katorrian and Edwards, (1) was hearsay that did not qualify for the "excited utterance" exception or fall under code of criminal procedure article 38.36(a) respecting "prior relationship of parties evidence," (2) was an inadmissible extraneous offense that served only to show character conformity, (3) was more prejudicial than probative, and (4) violated Sanders's "right to confront the witnesses against him as guaranteed by the Sixth Amendment of the United States Constitution and article 1, section 10 of the Texas Constitution." The State responds (1) Edwards's challenged testimony properly fell under the excited utterance exception to the hearsay rule; (2) the disputed testimony of both witnesses was admissible under article 38.36(a) as "relationship evidence"; (3) the evidence at issue was not introduced "solely for character conformity purposes," but rather "was relevant to motive, intent, state of mind, and the relationship between the victim and [Sanders]" and "rebuts a theory [Sanders's] counsel attempted to interject . . . that [decedent] entertained male guests at her home during the day while her children were at school, and one of these individuals may have killed her"; (4) there is no "significant disparity" between the degree of potential prejudice presented by the disputed testimony as compared to the probative value of that evidence; and (5) the decedent's out-of-court statements were nontestimonial and therefore Sanders's right to confrontation was not violated.A. Standard of Review
Whether the trial court erred in admitting evidence is reviewed under an abuse of discretion standard and will not be overturned as long as the court's ruling was within the zone of reasonable disagreement. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App . 2003); Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). With respect to the alleged violation of Sanders's right to confrontation, the proper standard of review is a hybrid one, both deferential and de novo. Mason v. State, 225 S.W.3d 902, 906-07 (Tex. App.-Dallas 2007, pet. ref'd). "Although we defer to a trial court's determination of historical facts and credibility, we review a constitutional legal ruling, i.e. whether a statement is testimonial or nontestimonial, de novo." Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).B. Applicable Law
The proponent of evidence ordinarily has the burden of establishing the admissibility of the proffered evidence. See Marquez v. State, 921 S.W.2d 217, 222-23 (Tex. Crim. App. 1996); Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008). If no objection is made, the evidence is generally deemed admissible. Vinson, 252 S.W.3d at 340. However, once an objection is made, the proponent must demonstrate that the proferred evidence overcomes the stated objection. Id. (citing Idaho v. Wright, 497 U.S. 805, 816 (1990)). "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). Hearsay statements are generally not admissible unless the statement falls within a recognized exception to the hearsay rule. See Tex. R. Evid. 802; Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). An excited utterance is an exception to the hearsay rule, even though the declarant is available as a witness. See Tex. R. Evid. 803(2); Apolinar, 155 S.W.3d at 186. An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." See Tex. R. Evid. 803(2); Apolinar, 155 S.W.3d at 186. The exception is based on the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable him to fabricate information. See Apolinar, 155 S.W.3d at 186; Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). To determine whether a statement is an excited utterance, a trial court should determine whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition. See Apolinar, 155 S.W.3d at 186; Zuliani, 97 S.W.3d at 596. Factors a trial court may consider include the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving. See Apolinar, 155 S.W.3d at 187; Zuliani, 97 S.W.3d at 596. However, it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event. See Zuliani, 97 S.W.3d at 596. These are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception. See id. Article 38.36(a) of the Texas Code of Criminal Procedure states(a) In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.Tex. Code Crim. Proc. Ann. art. 38.36(a) (West 2005). The court of criminal appeals has stated "[t]he nature of the relationship-such as whether the victim and the accused were friends, were co-workers, were married, estranged, separated, or divorcing-is clearly admissible under this Article." Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App. 2006). Further, "in some situations, prior acts of violence between the victim and the accused may be offered to illustrate the nature of the relationship." Id. Evidence admitted under article 38.36 is still subject to rules 404(b) and 403 of the Texas Rules of Evidence. Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999). Under rule 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Tex. R. Evid. 404(b). However, such evidence may be admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. "[I]n cases in which the prior relationship between the victim and the accused is a material issue, illustrating the nature of the relationship may be the purpose for which evidence of prior bad acts will be admissible." Garcia, 201 S.W.3d at 703. Rule 403 provides in relevant part that "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. "[I]f a defendant makes timely 404(b) or 403 objections, before a trial court can properly admit the evidence under Article 38.36(a), it must first find the non-character conformity purpose for which it is proffered is relevant to a material issue." Smith, 5 S.W.3d at 679. "If relevant to a material issue, the trial court must then determine whether the evidence should nevertheless be excluded because its probative value is substantially outweighed by the factors in Rule 403." Id. When a trial court balances the probative value of the evidence against its danger of unfair prejudice, a presumption exists that the evidence will be more probative than prejudicial. See Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990). "[A] trial court, when undertaking a Rule 403 analysis, must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted." Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006); see also Montgomery, 810 S.W.2d at 389-90 (establishing four-factor rule 403 analysis that was later "refined" in Gigliobianco). "[T]hese factors may well blend together in practice." Gigliobianco, 210 S.W.3d at 641. "[W]here the relevant criteria, viewed as objectively as possible, lead to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the proffered evidence, the appellate court should declare that the trial court erred in failing to exclude it." Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000). The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 42 (2004). In Crawford, the Supreme Court held testimonial out-of-court statements by a witness absent from trial are barred by the Confrontation Clause unless (1) the witness is unavailable, and (2) the defendant has had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 59; see also Mason, 225 S.W.3d at 907; Wall, 184 S.W.3d at 736. "Generally speaking, a statement is testimonial if it is a solemn declaration made for the purpose of establishing some fact." Crawford, 541 U.S. at 51. The term "testimonial" applies "at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at 68.
C. Application of Law to Facts
The record shows that during a pretrial hearing, Sanders's counsel made an oral motion in limine to "prevent the State from trying to offer the extraneous bad acts of [Sanders] prior to having a hearing outside the presence of the jury to determine their admissibility." The trial court sustained that motion in limine. At trial, prior to opening statements and outside the presence of the jury, Sanders's counsel objected on hearsay grounds to Edwards's testimony respecting the argument between Sanders and decedent on March 21, 2006. The trial court sustained that objection only as to opening statements and stated Sanders could "object at the time [the State] intends to introduce it." Subsequently, during an offer of proof outside the presence of the jury, the State asserted Katorrian Walker] will [s]tate on March 21st, 2006 . . . he heard an altercation, an argument between Tina Walker and Joe Sanders. He did not hear exactly what was said but that they were arguing, that he saw, or he heard them leave the apartment, heard his mom come back in and was on the phone to a friend Esse Edwards and that she was talking about an altercation outside with Mr. Sanders. The other witness is Esse Edwards. She will testify that she received a phone call from Tina Walker stating that she had just been assaulted by Joe Sanders and that she had to mace him. It had just happened, the call was placed right after it happened. . . . Tina Walker was scared. Esse will testify she could tell by the tone of voice, the way she was speaking, that she was upset about the assault that had just taken place. Sanders objected on the grounds that the testimony at issue (1) pertained to an extraneous act, (2) was more prejudicial than probative, and (3) did not constitute testimony as to the previous relationship between the accused and the deceased pursuant to article 38.36. The trial court ruled Katorrian's testimony was admissible under article 38.36. Then, Sanders made additional objections to Edwards's testimony on the grounds that (1) such testimony was hearsay and did not qualify for the excited utterance exception to the hearsay rule and (2) he had "no opportunity to cross-examine regarding veracity of the statements that Tina Walker was allegedly making to Esse Edwards," which he contended were "testimonial." The trial court ruled Edwards's testimony was (1) admissible as an excited utterance and pursuant to article 38.36, (2) more probative than prejudicial, and (3) nontestimonial in nature. During Katorrian's testimony, Sanders requested and was granted a running objection "as to the content that was discussed in pretrial." Katorrian testified that on the night of March 21, 2006, the night before his mother was killed, "I heard the phone ring and my mom picked up the phone was talking on it and all I heard was, Joe took the phone from her. She said, why you take the phone from me, and she-he started arguing on the phone with whoever was on the other line." When questioned who it was that started arguing, Katorrian responded, "Joe and the other person on the other line." Katorrian stated he could tell it was an argument because Sanders "had a loud tone of voice" and his mood "was upset." According to Katorrian, after Sanders got off the phone, "my mama had told him to go to her truck and get his stuff. . . ." Katorrian testified the mood of the conversation was "upset too because she was mad about the reason he took the phone from her." Katorrian stated Sanders left the apartment and decedent followed behind him. About twenty minutes later, Katorrian testified, decedent came back in followed by Edwards. During Edwards's testimony, Sanders made objections on the grounds of "improper predicate" and hearsay, which were overruled by the trial court. Additionally, Sanders requested and was granted a "running objection to the entire conversation" between Edwards and the decedent on the night before the murder. Edwards testified at trial that on the night of March 21, 2006, she received a call from decedent. According to Edwards, decedent "was terrified." Edwards stated decedent told her she "had an argument, a fight with Joe Sanders." Decedent asked Edwards to come over immediately. When Edwards got to decedent's home, decedent "was pretty upset." Edwards testified decedent told her that Sanders "pushed her up against the truck and grabbed her arm" and she "pepper sprayed [Sanders] for him to get away from her." Edwards and decedent walked the grounds to make sure Sanders had left. Edwards testified she did not feel decedent's relationship with Sanders was going to continue because Sanders was "a jealous type man" and decedent was "ready to move on in her life." With respect to the applicability of article 38.36(a), we conclude the challenged testimony of Katorrian and Edwards illustrates the nature of the relationship between decedent and Sanders. See Tex. Code Crim. Proc. Ann. art. 38.36(a); Garcia, 201 S.W.3d at 703-04. Thus, the requirements of article 38.36(a) have been met as to that testimony. See Tex. Code Crim. Proc. Ann. art. 38.36(a). Further, because this is a case "in which the prior relationship between the victim and the accused is a material issue," the admissibility requirements of rule 404(b) have been satisfied as to that testimony. See Garcia, 201 S.W.3d at 703; Smith, 5 S.W.3d at 679. Additionally, we conclude Edwards's challenged testimony was admissible evidence under the excited utterance exception to the hearsay rule. See Tex. R. Evid. 803(2); Apolinar, 155 S.W.3d at 186. The record reflects decedent called Edwards immediately after the altercation with Sanders. Decedent was still dominated by the emotions, fear, and pain of the fight, as evidenced by her being upset, her urgent request for Edwards to come to her home right away, and her walking the grounds accompanied by Edwards to make sure Sanders had left the premises. See Apolinar, 155 S.W.3d at 187; Zuliani, 97 S.W.3d at 596. Further, the record does not show decedent's statements to Edwards were self-serving. See Apolinar, 155 S.W.3d at 187. With respect to rule 403, we cannot conclude the probative value of either witness's testimony was substantially outweighed by the danger of unfair prejudice. See Gigliobianco, 210 S.W.3d at 641. First, the nature of Sanders's relationship with decedent on the night before her murder was inherently probative of the circumstances surrounding her death. See Garcia, 201 S.W.3d at 704. Second, the disputed evidence was needed to demonstrate that relationship. Id. The third, fourth, and fifth factors we consider are the tendency of the evidence "to suggest decision on an improper basis," confuse or distract the jury from the main issues, or be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence. See Gigliobianco, 210 S.W.3d at 641. In this case, there is no reason for us to believe that the disputed evidence, which involved an incident substantially less serious than the murder at issue, gave rise to any of those circumstances. See Garcia, 201 S.W.3d at 704. Sixth, Sanders does not argue, and the record does not show, that presentation of the disputed evidence consumed an inordinate amount of time or merely repeated evidence already admitted. See Gigliobianco, 210 S.W.3d at 641. Accordingly, we conclude the evidence at issue met the admissibility requirements of rule 403. See Tex. R. Evid. 403. Finally, we address whether the introduction of Edwards's challenged testimony into evidence violated Sanders's right to confrontation under the Sixth Amendment. Decedent's out of court statements to Edwards were not "prior testimony at a preliminary hearing, before a grand jury, or at a former trial," nor did they involve "police interrogations." Crawford, 541 U.S. at 68. Rather, decedent's statements to Edwards were made in a conversation between friends. There was nothing in the circumstances surrounding those statements "which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 52; see also Giles v. California, 554 U.S. 353, 376 (2008) ("[s]tatements to friends and neighbors about abuse and intimidation . . . would be excluded, if at all, only by hearsay rules" and not by Sixth Amendment confrontation clause). On this record, we conclude the statements made by decedent to Edwards were nontestimonial in nature. Consequently, we conclude the trial court did not err by admitting Edwards's challenged testimony over Sanders's objection that such testimony violated his right to confrontation. In light of the our conclusions above, we cannot conclude the trial court's decision to admit the challenged testimony of Katorrian and Edwards into evidence was outside the zone of reasonable disagreement. See Moses, 105 S.W.3d at 627; Burden, 55 S.W.3d at 615. Sanders's third issue is decided against him.IV. OBJECTIONS TO JURY ARGUMENT
In his fourth issue, Sanders argues the trial court erred by "overruling his objection" to the prosecutor's argument placing the time of decedent's death "at around noon to 2:22." However, the record reflects the trial court sustained Sanders's objection, instructed the jury to disregard, and denied Sanders's motion for mistrial. Thus, because Sanders's fourth issue is not supported by the record, we will not address it. In his fifth issue, Sanders argues the trial court erred by overruling his objection to the following argument made by the prosecutor:But if she's standing there at her vanity and it's somebody that she knows is already in her apartment, it's the defendant who's been there, she might look at him over her shoulder. She's just going to look at him. And if he walks up with something behind his back, she's just going to look. If he reaches up and plunges that knife into her throat, she's not going to see it coming. And then he's going to drop her down and lay her on the ground and it's going to happen quick. And that [medical examiner] told you she's going to bleed out.Look at how she's laying with her eyes open. Tina Walker watched Joe Sanders kill her. She watched him. According to Sanders, "[t]he State's argument was a blatant attempt to invite the jury to speculate on what the deceased experienced in the throws of the loss of life." Sanders asserts the statement "was unsupported by the record and was in error because of its manifest and harmful character which requires reversal due to its harmful effect that denied [Sanders] a fair trial." The State responds its argument was a reasonable deduction from the evidence. Further, the State asserts any error was harmless.
A. Standard of Review
The standard of review for improper jury argument is abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).B. Applicable Law
The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the admitted evidence alone. See Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). To be permissible, jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). The prosecutor may draw all reasonable inferences from the facts in evidence that are reasonable, fair, and legitimate. Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988). However, the prosecutor may not use closing argument to put evidence before the jury that is outside the record and prejudicial to the accused. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). Reference to facts that are neither in evidence nor inferable from the evidence is improper. Id. To determine whether a party's argument is proper, we must consider the argument in light of the entire record. Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). Under Rule 44.2(a) of the Texas Rules of Appellate Procedure, constitutional error that is subject to a harmless error review requires reversal unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). Remarks that fall outside the permissible bounds of jury argument are not constitutional errors. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see also Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). Such remarks constitute "other error" for purposes of rule 44.2(b). Mosley, 983 S.W.2d at 259. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson, 967 S.W.2d at 417. To determine if the State's improper argument affected an appellant's substantial rights, we look to three factors: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction and punishment assessed absent the misconduct. Mosley, 983 S.W.2d at 259; see also Garrett v. State, 632 S.W.2d 350, 353-54 (Tex. Crim. App. 1982).C. Application of Law to Facts
The first officer at the scene testifiedI could see that there was a female body there laying back on her back, hands almost laying like this, just a death stare looking straight up at the ceiling, and a lot of dried blood around her neck. Blood had pooled at the back of the head and it was obvious at this time the female was deceased. I reached around and there was no pulse on her.State's Exhibit 4-A shows "the victim and how her body was positioned when [the police] found her." Based on the position of decedent's body, with her feet in the bathroom, the prosecutor deduced that prior to being stabbed, decedent was looking in the bathroom mirror and saw the killer approach her. We conclude the State's argument, "Tina Walker watched Joe Sanders kill her," is a reasonable deduction from the evidence. Accordingly, we conclude the trial court did not err when it overruled Sanders's objection. However, even were we to decide the trial court erred in overruling Sanders's objection, any error did not affect Sanders's substantial rights. We determine whether an appellant's substantial rights are affected by evaluating the record using the factors set forth in Mosley. See 983 S.W.2d at 259. As to the first factor, we conclude the misconduct, if any, was mild. The jury heard testimony that decedent's body was found with her eyes open in a bathroom that contained a mirror. The officer who found decedent's body described the decedent's eyes as holding a "death stare." The second factor, as to measures adopted to cure the misconduct, need not be considered because the objection was overruled; accordingly, no instruction was requested or given. See Martinez, 17 S.W.3d at 693. The third factor, the certainty of conviction and punishment assessed absent the misconduct, weighs in the State's favor in light of the overwhelming evidence against Sanders described above. Given the mildness of the State's argument and the strength of the evidence supporting Sanders's conviction, we conclude any error associated with this argument did not affect Sanders's substantial rights and was harmless. See Martinez, 17 S.W.3d at 694; Tex. R. App. P. 44.2. We decide Sanders's fourth and fifth issues against him.