Opinion
No. 09-03-214 CR
Submitted on August 24, 2004.
Opinion Delivered October 6, 2004. DO NOT PUBLISH.
On Appeal from the 9th District Court, Montgomery County, Texas, Trial Court Cause No. 02-04-02370-CR.
Before McKEITHEN, C.J., BURGESS, and GAULTNEY, JJ.
MEMORANDUM OPINION
Robert Lynn Stubbs pleaded guilty to murder; trial was to the jury on punishment. He appeals from the jury's assessment of thirteen years incarceration in the Texas Department of Criminal Justice — Institutional Division. Stubbs argues the trial judge committed fundamental error by commenting on the weight of the evidence and on whether Stubbs would testify at the punishment phase of the trial. Although he testified and did not rely on his right to remain silent, he says the trial court's improper comment required him to testify, because the jury would have held his silence against him. Prior to the selection of the jury, the trial judge made the following remarks to the venire:
The alleged victim in the case is Robert Wylie. There were seventeen apparent witnesses to the event. My understanding is that it happened at McKnight's Western Wear on the east side of Conroe, Texas, on the south part of Loop 336. . . . [I]t cuts across 105 east, and just a short distance to the south on Loop 336 is McKnight's Western Wear, fairly well-known little commercial location over there. About 1:30 . . . in the afternoon of that day apparently broad daylight. My understanding, there were two vehicles involved and Mr. Wylie, the alleged victim, was in one, and Mr. Stubbs was in the other, and Mr. Wylie ended up being shot to death. He did get inside the western wear store apparently before he collapsed and expired there on the spot. Apparently in the car or present as a witness was a lady by the name of Tracie Stubbs. Tracie Stubbs at that time, as I understand it, was Mr. Robert Stubbs' wife. She was assoicated with Mr. Wylie, the alleged victim. So I'll let the facts and the evidence speak for itself, but it's my understanding there was a relationship between Mr. Wylie and Mrs. Stubbs, and Mrs. Stubbs was married to Robert Stubbs at the time. Maybe there was an estrangement between them. There was also I think the daughter, 12-year-old daughter of Mr. Wylie, the alleged victim, who was also present as a witness.So I am perhaps going a little further than I should, but the reason that I go that far with you is that if you have personal knowledge about the case, you are involved in a situation where you have talked about these facts with someone, we have to know that right away to see whether or not you can still be fair and impartial even though you have some personal knowledge about the case. So let me know which of you are familiar with that little summary I have given you about the apparent facts in the case. So . . . there was a little news coverage about the case, but it was quite sometime ago. And this case, some of you live near McKnight's or worked at McKnight's, or you happen to know any of the parties I have mentioned, so that's the kind of thing we need to know right up front. So tell me again if anybody knows the parties in the case. We have such a large community now that it's not unusual that the jury panel doesn't know. If it turns out that you know some of the witnesses in the case or some of the information comes back to you as you having read it, that doesn't disqualify you, but if it turns out you know a witness in the case, it would be well for you to so indicate. They'll probably tell you who the possible witnesses are, or the expected witnesses are while they speak with you . . . the lawyers talk to you about jury selection. I have told you something about the range of the punishment. Remember it's 5 to 99, or life, and a fine up to $10,000. . . . . The defendant has another important right I need to mention to you, he doesn't have to testify, because like everybody else in this room, he's entitled to the protection of the 5th Amendment, which says you have the right to remain silent, you can't be incriminated. So the prosecutors can't make him take the witness stand And I suggest to you that you might expect to hear from the defendant, but once again, he doesn't have to. If they decide not to put Mr. Stubbs on the stand, you don't necessarily disregard it because you know it happened, but at the same time you can't say I'm going to sentence him to at least 50 years because he didn't testify. You can't use his silence against him. Now I am telling you right now not to worry much in this regard. I don't want you to worry about anything, but I don't want to forget to tell you he's got a right to remain silent. Like I say, it may very well be that he's going to present his side of the story, which often makes people more comfortable, including myself, but just keep this in mind. If you have got something in your mind that if he doesn't testify I'm giving the maximum punishment, we can't do that. You can't use his silence against him, that's what the Constitution says as applied through our Supreme Court and so forth. I've talked to you for a long time and I apologize if I've taken too long. How about comfort? We'll go to recess before we start hearing from the lawyers. A trial judge shall not at any stage of the proceeding prior to the return of the verdict make any comment calculated to convey to the jury the judge's opinion of the case. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). A comment on an accused's failure to testify violates the accused's federal and state constitutional privileges against self-incrimination and the right to not be compelled to testify. See Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001). The general rule is that counsel must object to the trial judge's remarks in order to preserve error. Blue v. State, 41 S.W.3d 129, 131 (Tex. 2000). However, the reviewing court may take note of "fundamental errors affecting substantial rights although they were not brought to the attention of the court." Id. (quoting Tex. R. Evid. 103(d)). Stubbs did not object to the trial judge's remarks. He argues the comments amounted to fundamental error under Blue and Tex. R. Evid. 103(d). In his summary of the evidence for the venire, the trial judge may have gone, as he stated, "a little further than [he] should," but the trial court's summary does not involve disputed facts. In its pertinent points, the evidence the State and defendant later presented to the jury mirrors the trial judge's comments. The remarks are a summary, not a comment on the weight of the evidence, and they do not convey the trial court's opinion as to what punishment should be meted out to Stubbs. The trial judge explained the purpose of his evidence summary to the members of the venire: he wanted them to be able to determine whether they had any "personal knowledge about the case[.]" A trial court has broad discretion in maintaining control and expediting the trial. See Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001). Here, the court attempted to efficiently manage the voir dire proceedings by giving a summary of the evidence to assist the venire members in determining whether they had any knowledge about the parties or the events in the case. The trial judge's comments, even if improper, did not rise to the level of fundamental error evidenced in Blue. They did not taint the presumption of innocence; Stubbs had already pleaded to Wylie's murder. And the remarks did not deny the accused the basic right to an impartial jurist. The article 38.05 right to prohibit the judge from commenting on the weight of the evidence or conveying his opinion of the case is forfeitable by inaction. See Moore v. State, 907 S.W.2d 918, 922-23 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). Appellant was not excused from the requirement to object to preserve the error. Because he did not object to the judge's summary of the evidence, the issue is waived. See Tex.R.App.P. 33.1. Stubbs also says the trial judge's comments violate the Fifth Amendment to the United States Constitution and Article I, § 10 of the Texas Constitution. The Fifth Amendment prevents a person from being compelled to be a witness against himself in any criminal matter, and a defendant retains the right to remain silent during sentencing. See Mitchell v. United States, 526 U.S. 314, 327, 329-330, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). Stubbs says the remarks left the defense "with no other option but to put their client on the stand" Stubbs testified his wife Tracie left him in late December 2001. Depressed by her departure, he bought a gun and considered suicide. Yet he was still hoping for reconciliation. He described for the jury his feelings of anger after he spotted Wylie driving a vehicle in which Tracie Stubbs was a passenger. Stubbs and Tracie were the owners of that vehicle. Although Stubbs knew Tracie was living with Wylie, Stubbs' sighting of Wylie and Tracie in the Stubbs' vehicle angered Stubbs. He followed the car to the store, reached for his gun, exited his pickup, approached Wylie, and shot Wylie while Wylie was seated in the car. It is apparent from the record that defense counsel's trial strategy was the presentation of "sudden passion" evidence to mitigate punishment. To establish he acted under the influence of sudden passion, Stubbs presented testimony from himself, the psychologist who interviewed him, and various character witnesses. The jury found sudden passion. A defendant's right not to testify may be waived only if the waiver is knowing, intelligent, and voluntary; and defendant waives this right when he voluntarily takes the stand See Brown v. State, 617 S.W.2d 234, 236 (Tex.Crim.App. 1981); Brumfield v. State, 445 S.W.2d 732, 735 (Tex.Crim.App. 1969) (opinion on rehearing); Birdsong v. State, 82 S.W.3d 538, 541-544 (Tex.App.-Austin 2002, no pet.). In Birdsong, the court of appeals said, "The salient issue is whether the record before us, when viewed in its entirety, satisfies this Court that appellant's punishment hearing testimony was given knowingly, voluntarily, and intelligently." Id. at 544. The court, in viewing the record in its entirety, found the defendant was not compelled to testify in the trial to the court, but voluntarily did so. Id. The court concluded the "record clearly reflects a punishment-hearing strategy of seeking the district court's leniency." Id. at 544. Here, there was no harm from the trial court's error. The record reflects appellant's strategy was to testify and mitigate punishment. Although others testified to his normally calm nature, only Stubbs described his anger immediately before the shooting. There is nothing in the record which would suggest Stubbs did not testify voluntarily, knowingly, and intelligently. To the contrary, it is apparent he testified to establish the sudden passion issue. We conclude he was not compelled to testify. Issue one is overruled. In issue two Stubbs argues the trial court erred in admitting three photographs: Exhibits 2K, 2L, and 4A. Exhibit 2K shows the position of the deceased's body inside the western store; neither of the victim's gunshot wounds is visible in the picture. Photo 2L also shows Wylie's body while still in the store; the victim's shirt is pulled up and the gunshot wound to the abdomen is visible. Stubbs objected to photos K and L as irrelevant and more prejudicial than probative. Exhibit 4A is an autopsy picture of the victim; the abdominal wound is visible. Stubbs objected that 4A was irrelevant, repetitive of other exhibits, and more prejudicial than probative. Photographs must assist the jury. See Erazo v. State, No. 2206-02, 2004 WL 1353463, at *3 (Tex.Crim.App. June 16, 2004). Also, photos must not be more prejudicial than probative. See Tex. R. Evid. 403. "If there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects." Erazo, 2004 WL 1353463, at *3. The photographs here are probative of the manner of the victim's death. In depicting the body's position at the crime scene and the location and angle of wounds as seen by the medical examiner at the autopsy, the photographs do not have the ability to impress the jury in some irrational, yet indelible way. See Escamilla v. State, No. 74494, 2004 WL 1462077, at *10 (Tex.Crim.App. June 30, 2004). The evidence assisted the jury in making its decision on punishment. Issue two is overruled. In issue three, Stubbs says the trial court erred by excluding part of the testimony of Stubbs' two expert witnesses. Rule 702 governs the admissibility of expert testimony: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702. We review a trial court's exclusion of expert testimony under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). We must uphold the trial court's ruling if the ruling was within the zone of reasonable disagreement and the ruling was correct on any theory of law applicable to the case. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App. 2004). Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App. 1999). Appellant says the trial court did not allow Gerald Ortom, who had worked as a parole and probation officer, to testify that murderers on probation are easier to supervise than other probationers and are less likely to commit more crimes. Stubbs had the burden of showing that the testimony was relevant and reliable. See Weatherred, 15 S.W.3d at 542; see also Sexton v. State, 93 S.W.3d 96, 99 (Tex.Crim.App. 2002). He attempted to carry that burden by simply offering Ortom's testimony and nothing else, though the trial judge expressly offered him the opportunity to "come back" with supporting evidence for the opinion. Weatherred, 15 S.W.3d at 542. Ortom offered no criteria or data by which, even out of his own experience, he arrived at his broad conclusions about murderers on probation. The reliability of expert testimony based on the "soft sciences" may be established by showing that (1) the field of expertise involved is a legitimate one, (2) the subject matter of the expert's testimony is within the scope of that field, and (3) the expert's testimony properly relies upon or utilizes the principles involved in that field. Weatherred, 15 S.W.3d at 542. While experience alone may provide, in some cases, a sufficient basis for an expert's testimony, there still must be evidence of the reliability of the opinion arising out of that experience. See Perez v. State, 113 S.W.3d 819, 834 (Tex.App.-Austin 2003, pet. ref'd) (reliability based on experience alone); see also State v. Medrano, 127 S.W.3d 781, 785-86 (Tex.Crim.App. 2004) (Unique nature of scientific evidence derived from soft sciences does not vitiate the requirement of reliability.). Appellant offered no evidence that the expert's testimony properly relied on or utilized principles or studies from within his field of expertise. We conclude the trial court did not err in excluding Ortom's opinion on these issues. The trial judge also excluded Dr. Carmen Petzold's opinion testimony on whether Stubbs was acting under sudden passion. Appellant says the exclusion was error. See Tex. R. Evid. 704. But even if the trial court erred, there is no harm. Petzold testified to details establishing Stubbs was severely depressed and suicidal and was under emotional and mental stress on February 23, 2002, the day of the murder. She also testified Stubbs had spent his whole life "minimizing problems, minimizing hurts, minimizing upsets, pushing it away. . . ." I think it's kind of a cumulative affect [sic]. You have this minimizing that he's done his whole life denying window problems, and Mr. Stubbs also has what's called a pattern of over-controlled hostility. That means that most of the time he under reacts to normal upset, but once in a while that he will over react and he won't even really know because of this tendency to minimize and deny that he's over reacting or getting ready to have an over reaction. He's blind sided by the level of stress that's building up in him. He doesn't see it coming because of the minimization. Dr. Petzold's description of Stubbs' mental state allowed the jury to conclude that Stubbs acted under the influence of sudden passion. Appellant also argues the trial court erred because it excluded Dr. Petzold's opinion that appellant would be a good candidate for community supervision. The State objected that no proper predicate and foundation had been laid for the testimony. Dr. Petzold, a licensed psychologist, described her work experience. She had testified numerous times in criminal cases. Her experience with criminal offenders was primarily with sex offender treatment programs for adults and juveniles. She did not indicate she had ever dealt with offenders on community supervision or parole. The party proffering the expert witness bears the burden of showing the witness is qualified on the specific matter in question. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000) (citing Penry v. State, 903 S.W.2d 715, 762 (Tex.Crim.App. 1995)). Ortom, another defense expert witness, was allowed to testify Stubbs was a good candidate for probation. We hold the trial court did not abuse its discretion in finding the proper foundation had not been laid for Petzold's testimony on the probability of Stubbs' success on probation. Issue three is overruled. The judgment is affirmed.
Appellant has not separately argued or briefed the Texas constitutional violation. Therefore, we do not address it. See Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App. 1992).