No. 05-07-00289-CR
Opinion Filed April 17, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F05-73753-QY.
Before Justices MORRIS, WRIGHT, and FRANCIS.
CAROLYN WRIGHT, Justice.
Roderick Stewart appeals his conviction for murder. After finding appellant guilty, the jury assessed punishment at 35 years' confinement. In six issues, appellant contends the evidence is legally and factually insufficient to support his conviction, the trial court abandoned its role as a neutral and detached magistrate by suggesting a theory of admissibility for certain evidence, and the trial court abused its discretion by admitting that evidence. We overrule appellant's issues and affirm the trial court's judgment.
Background
Van Eaton testified that he and Leeanthony Smith had known each other since they were children. Eaton and Jermaine Carter were walking to the Dallas Inn when they met Smith. Smith accompanied Eaton and Carter as the men walked to the Dallas Inn. As they walked, they passed a bus stop on Kiest Boulevard where appellant and John Canady were sitting and drinking. Eaton, Carter, and Smith continued toward the Dallas Inn, but returned a short time later to talk with appellant and Canady. The five men were "just chatting, hanging out" when appellant told Smith to leave because appellant did not "play with youngsters." Smith told appellant he knew him from when appellant was younger and "stayed on Arpage when [Smith] was a young kid and [appellant] used to be over there smoking dope. And then when [appellant would] get high on the dope, [appellant would run] outside and say a little green midget was chasing [appellant]." According to Eaton, Smith was just "playing around"; he did not charge at appellant, did not make any movement suggesting he had a gun, and did not threaten Smith. After Smith told the story about appellant and the little green midget, appellant "just jumped up and attacked" Smith "for no reason at all" and "just started sticking him." Smith fought back for a time and then said, "I'm getting tired." Eaton and Carter broke the men apart, and appellant ran toward a nearby Shell station. Smith told Eaton he was okay, and the men started to walk away. Eaton noticed Smith had "something chrome sticking out-silver sticking out of the top of his head." At Smith's insistence, Eaton pulled it out and Smith took a few steps, fell to the ground, and began convulsing. Eaton held Smith in his arms until the police arrived a short time later. During that time, nobody went through Smith's pockets or took anything from Smith. Carter testified he was with Smith and Eaton talking to appellant and Canady. Carter heard Smith ask appellant if he remembered him. Carter turned toward the Dallas Inn because he thought he saw the woman he was looking for. As he did so, he heard laughter. Carter turned to see what the men were laughing about and saw appellant jump up off the bench and run towards Smith. Carter did not see Smith go towards appellant or reach behind his back like he was going to pull a weapon. According to Carter, Smith was just standing on the sidewalk when appellant leapt off the bench and began hitting Smith with stabbing motions. After appellant ran away, Carter and Eaton noticed something "sticking" from Smith's head. Smith begged Eaton to pull it out, and so he did. Smith fell to the ground in Eaton's arms, and Canady called 911. Carter did not see anyone approach Smith until the police arrived a short time later. Dr. Sheila Spotswood, a Dallas County medical examiner, testified that she reviewed Smith's autopsy report. Spotswood explained that Smith was stabbed in the right shoulder, the left shoulder, the back, the head, and the chest. The wounds to his shoulders, back, and head, were relatively superficial and not the cause of Smith's death. The cause of Smith's death was the stab wound to his chest, which went through the pericardial sac surrounding his heart and then penetrated his aorta. Spotswood also testified that, when Smith's body arrived at the morgue, there was a dollar bill with what appeared to be crack cocaine rolled inside in his pocket. Canady testified to a substantially different version of events than Carter and Eaton. Canady testified he was sitting at the bus stop with appellant talking and drinking wine. Smith, Eaton, Carter, and another man Canady did not know walked by them on the way to the Dallas Inn and then came back to the bus stop. Smith asked Canady if appellant was "the ho ass n___ I robbed about five years ago?" Canady told Smith to leave, but Smith continued talking. According to Canady, appellant said something to Smith, and Smith reached behind him and then pointed to appellant. Appellant grabbed Smith, and they started fighting. When Smith fell to the ground, Canady and appellant stood there for a short time, and then appellant left. The fourth man that Canady did not know "went straight to [Smith's] pockets and got what he got. He got the money and dope out of his pocket, and whatever he had back there, he grabbed that and took off running while me and [Eaton] tried bringing [Smith] back to life." Canady saw the unknown man take money and dope but "didn't see the — whatever he has with a black handle . . . [he didn't] know if it was a stick, gun, whatever." Canady explained that he did not tell the police about the drugs or the weapon because Canady had drugs on him that the police had not found. On cross-examination, Canady testified that he did not remember telling the police that after Smith told a story about appellant smoking crack and appellant thought a midget jumped on him, appellant jumped up, grabbed Smith, and hit him seven or eight times in the head. Canady admitted his statement might say that, but denied seeing it happen. Appellant testified Smith robbed appellant with a gun about ten years before. The night appellant stabbed Smith, he was sitting at a bus stop with Canady, drinking wine and talking. As they were sitting there, Smith, Eaton and Carter walked past. A short time later, the three men came back, and Smith asked appellant if he remembered when Smith robbed him. Appellant told Smith he did not remember but "it dawned on [appellant] who he really was." Smith kept "hollering, do you remember me? You remember me?" Then Smith "reached into his back, his pants pocket, like he was getting out a weapon or something." At that time, appellant stood up. As he did so, Smith hit appellant, and appellant "blanked out." The next thing appellant remembered, he was holding Smith "by his shoulders and he had the icepick in his head." Appellant let him go and ran toward the Shell station. He passed out in someone's back yard and woke up the next morning. Later that day, he learned a police detective was looking for him, so he called the detective. Appellant denied telling the police that he did not realize Smith had robbed him until later when Canady told him. He also denied telling the police that he sometimes goes into "rages." 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. Appellant does not deny that he killed Smith by stabbing him, but rather maintains he acted in self-defense and that a rational jury could not have found against him on that issue. After reviewing the record, we cannot agree. We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). In contrast, when reviewing the factual sufficiency of the evidence, we view all of the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 416-17 (Tex. 2006). Evidence that rationally supports a verdict of guilt beyond a reasonable doubt under the Jackson legal sufficiency standard can still be factually insufficient when the verdict "seems clearly wrong or manifestly unjust" or "against the great weight and preponderance of the evidence." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions "albeit to a very limited degree." Id. We will reverse a guilty verdict on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003). However, a person is generally justified in using deadly force against another if he reasonably believes that deadly force was necessary to protect himself against the other's use or attempted use of unlawful deadly force, and a reasonable person in the actor's situation would not have retreated. Tex. Penal Code Ann. § 9.31(a), 9.32(a) (Vernon Supp. 2007). A defendant has the burden of producing some evidence to support a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). Once the defendant produces some evidence, the State then bears the burden of persuasion to disprove the raised defense. Saxton, 804 S.W.2d at 913. The burden of persuasion does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. Thus, to convict a defendant of murder after he has raised the issue of self-defense, the State is required to prove the elements of the offense beyond a reasonable doubt and to persuade the jury beyond a reasonable doubt that the defendant did not kill in self-defense. Id. at 914. A determination of guilt by the jury implies a finding against the defensive theory. Id. Here, Eaton and Carter testified that appellant stabbed Smith after Smith told a joke about appellant. Appellant's and Canady's testimony was that Smith had robbed appellant at gunpoint in the past, was antagonizing him, and Smith reached for a weapon. It is undisputed that appellant, either in response to the joke or because he believed he was in danger, pulled an icepick from his pocket and stabbed Smith numerous times, killing him. Although the police arrived minutes later and secured the scene, no weapon other than the icepick was found. The night of the offense, Canady's version of the incident was substantially similar to that of Eaton's and Carter's. Viewing the evidence under the appropriate standards, we conclude a rational jury could have found beyond a reasonable doubt that appellant intentionally or knowingly caused Smith's death or that he intended to cause Smith serious bodily injury and committed an act clearly dangerous to human life that caused Smith's death and that he was not justified in doing so. Although appellant's and Canday's trial testimony supports appellant's self-defense theory, this evidence does not render the State's evidence insufficient. Rather, it raised an issue of credibility which the jury determined in the State's favor. After reviewing the record, we cannot conclude the verdict seems clearly wrong or manifestly unjust or is against the great weight and preponderance of the evidence. Thus, we conclude the evidence is legally and factually sufficient to support appellant's conviction for murder. We overrule appellant's first and second issues. Prior Consistent Statements
In issues five and six, appellant contends the trial court erred by admitting Carter's and Eaton's written statements. In particular, appellant contends the statements were hearsay and were not admissible as a prior consistent statement offered to rebut a claim of fabrication. We disagree. A previous statement by a witness is not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. See Tex. R. Evid. 801(e)(1)(B). Here, before Eaton's and Carter's previous written statements were offered into evidence by the State, the defense cross-examined both men about whether they had talked to each other about the incident before trial. When the trial court asked defense counsel if that cross-examination was "with the view toward seeing if [Eaton and Carter] might have gotten together to see if they could have the same story," counsel agreed that was the purpose of his questioning. At the time the statements were offered into evidence, both Carter and Eaton were subject to recall and could have been cross-examined about the statements if the defense had chosen to do so. Under these circumstances, we cannot conclude the trial court abused its discretion by admitting Eaton's and Carter's statements. See Lawton v. State, 913 S.W.2d 542, 561 (Tex.Crim.App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 264 (Tex.Crim.App. 1998) (prior statement admissible to rebut implication of fabrication where defense questioned declarant on cross-examination about preparations he and district attorney undertook for his trial testimony). We overrule appellant's fifth and sixth issues. Impartial Magistrate
In his second and third issues, appellant contends the trial court abandoned its role as an neutral magistrate. Specifically, appellant contends the trial court reversibly erred by suggesting to the State that Carter's and Eaton's statements were admissible as prior consistent statements. After reviewing the record, we cannot agree. The record shows that during the State's case-in-chief, the prosecutor asked Eaton if he made a statement the night of the stabbing. At that time, the trial court cautioned the prosecutor that it would not allow the State to "go into any statements he might have gave (sic) down at the police station." Later, outside the presence of the jury, the trial court again cautioned the State that "any statements made by witnesses to law enforcement officers . . [are] hearsay and not admissible." After both Eaton and Carter had been cross-examined, the trial court, outside the presence of the jury, asked defense counsel if his questioning was intended to imply the witnesses had "gotten together" about their stories. When defense counsel agreed that was his intention, the trial court told counsel that line of questioning may have made the statements admissible and gave counsel an opportunity to research the question. Following a recess, the trial court asked counsel if he had found case law showing the statements were inadmissible and asked the State if it intended to offer the statements. The State responded it was not offering the statements at that time, but "reserve[d] putting those in for rebuttal." At that time, defense counsel objected to the statements as hearsay and improper bolstering, and to the trial court's "judicial interference." The trial court responded that it was revisiting a prior ruling on the admissibility of the statements. The next day, again outside the presence of the jury, the trial court informed counsel he had reviewed the statements in camera and determined the statements would be admissible as prior consistent statements offered to rebut a claim of fabrication. Defense counsel reurged his previous objections. Thereafter, the State offered the statements, and the trial court admitted them over appellant's objections. Initially, we note our concern regarding the level of involvement by the trial court concerning the admission of the complained-of statements before they were formally offered into evidence. Although the trial court asserted it was revisiting a prior ruling regarding the admissibility of the statements, the record shows that before the content of the statements was offered into evidence, the trial court preemptively cautioned the State on two occasions that the statements were not admissible. The record also shows it was the trial court, not the State, that began the discussion regarding the admissibility of the statements following the defense's implication of fabrication. Nevertheless, the State reserved its right to offer the statements prior to any objection by the defense and nothing in the record shows the State did not intend to do so regardless of the trial court's discussion. Further, the record does not show, as appellant suggests, that the trial court abandoned its role as an impartial magistrate. Rather, the record shows the trial court was concerned with properly applying the rules of evidence in regard to admission of the statements, and as previously discussed, did not err by admitting the statements under rule 801(e)(1)(B). Finally, the only comments regarding the admissibility of the statements the trial court made in the presence of the jury were the preliminary cautions that the statements were not admissible. The complained-of discussion by the trial court was outside the presence of the jury. Thus, appellant's reliance on Clark v. State, 878 S.W.2d 224, 226 (Tex.App.-Dallas 1994, no pet.) (trial court's comments in front of the jury regarding defendant's prior convictions reversible error), and Simon v. State, 203 S.W.3d 581, 590 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (discussing improper discussion of evidence before the jury), is misplaced. Under these circumstances, we conclude appellant's complaints that the trial court abandoned its role as a neutral and impartial magistrate lack merit. We overrule appellant's second and third issues. We affirm the trial court's judgment.