Opinion
No. 05-02-01653-CR
Opinion Filed December 19, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-43488-LJ. Affirmed.
Before MORRIS, FITZGERALD and LANG.
OPINION
A jury convicted Anthony Naquan West of capital murder for the death of Cirilo Francisco. The court sentenced him to automatic life imprisonment. In ten issues, appellant contends: the evidence was legally and factually insufficient to support his conviction; the court erred in overruling his Batson objection; the court erred in several instances by overruling appellant's objections to inadmissible hearsay evidence; the court erred in several instances by overruling appellant's objections to the prosecutor's improper jury argument; and finally appellant alleges he received ineffective assistance of counsel.
Batson v. Kentucky, 476 U.S. 79, 96 (1986).
Factual and procedural background
On November 6, 2001, Cirilo Francisco and three friends, Eloy Moreno, Raul Rivera, and Fermin Eugenio, were drinking beer in his apartment. At trial, Eugenio testified through an interpreter that Lisa Deaton, a white woman whom he recognized from the apartment complex, joined them. Later Deaton left the apartment, and immediately a black man appeared at the door and demanded money. The man was holding a revolver and pointing it at them. No one gave him any money and he did not come into the apartment. As he left he fired three shots at Francisco. Eugenio called an ambulance, but Francisco died before being taken to the hospital. Joseph Powers, an officer with the Richardson police department, arrived at the scene and interviewed Rivera. Rivera did not speak English well, so communication was difficult, but Powers testified Rivera told him a white female and black male had been in the apartment and had robbed and shot Francisco. Powers testified Rivera told him three shots were fired. Jeff York, another officer with the Richardson police department, arrived at the scene and interviewed Eugenio in Spanish. York testified Eugenio told him a black male had shot Francisco, and that the black male was accompanied by a white female whom he recognized. Eugenio took York and several other officers to the apartment where the white female lived. The white female (Lisa Deaton), a black male, and a black female were at the apartment and were very cooperative. York had all three of them stand in front of a light so Eugenio could identify them. Only Lisa Deaton became a suspect as a result. Rochelle Harris, the black female who lived in the apartment, testified that she had let the white female, Lisa Deaton, stay with her for approximately three weeks. She had also let a young woman, April Garcia, stay at her apartment. She believed Garcia had a relationship with appellant. Harris braids hair for money and has on occasion braided appellant's hair. Harris testified that the night of the murder she, appellant, Garcia, Deaton and Deaton's boyfriend, were all at her apartment playing dice. At around midnight Harris's boyfriend arrived and she asked the others to leave. Later Deaton returned alone. About ten minutes after Deaton returned, the Richardson police arrived at her door. April Garcia testified that on the night of the murder she, appellant, Deaton and Harris were at Harris's apartment. Garcia testified that Deaton said she needed to talk to appellant and asked him to go outside with her. Garcia, appellant, and Deaton all went outside to a picnic area. Deaton left, and later appellant followed her. Garcia waited in appellant's car. Appellant and Deaton returned, walking from different directions, and stood outside the car talking. Garcia testified Deaton told appellant she knew a place he could rob where there were only two guys. Deaton said she would check it out for him if he would give her $20 so that she did not look suspicious. Appellant gave Deaton the money and she left. When Deaton returned she had only $10. When appellant asked where his $20 was, Deaton replied she had to buy some dope, but said, "you'll get it back when you go hit this apartment." According to Garcia, Deaton and appellant left and returned about twenty to twenty-five minutes later. When they returned Deaton was yelling at appellant, but Garcia could not make out what Deaton was saying. Appellant jumped in the car, took off his shirt, and they sped away. While they were driving appellant told Garcia there had been five or six men in the apartment and they had begun fighting him. Appellant said one of the men reached for a dresser drawer, so appellant shot him. The man did not give up, so appellant shot him two more times. Appellant and Garcia drove around some more, and eventually in the parking lot of an Albertson's store appellant took down his braids. Garcia, a diabetic, had not brought her insulin with her. Eventually she blacked out and was taken to a hospital, where she stayed for a week. On cross-examination, Garcia testified she did not see appellant with a handgun and admitted that in January, 2001, she had received a ticket for the charge of manifestation of prostitution. A pathologist testified the decedent had received three gunshot wounds. A firearm examiner testified that the three bullets removed from the decedent were all fired from the same weapon. No weapon was found. Casavant, a Richardson police officer, testified that none of the three witnesses to the shooting were able to pick appellant's photo out of a photographic line-up. Appellant's car was seized and searched and the sweatshirt and pants appellant was wearing when he was arrested were sent to the lab to be tested. No physical evidence linked appellant to the murder. Appellant was charged with capital murder and pled not guilty. After his conviction he brought this appeal.Legal and factual sufficiency
In his first two issues, appellant claims the evidence is legally and factually insufficient to support his conviction.A. Standard of Review
1. Legal Sufficiency Appellate review of legal sufficiency is limited to determining whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). In reviewing the sufficiency of the evidence, we consider all of the evidence, whether or not properly admitted. Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). The fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). As such, the jury may choose to believe or disbelieve all or any part of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.).2. Factual Sufficiency
When reviewing the factual sufficiency of the evidence, we review all the evidence, but not in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398-99 (Tex. App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Unless the record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimony. Id. at 8. We reverse only if (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 11. A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).B. Applicable Law
A person commits murder if he "(1) intentionally or knowingly causes the death of an individual. . . ." Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). A person commits the offense of capital murder if he commits murder and "(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnaping, burglary, robbery. . . ." Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 2003). A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02(a) (Vernon 2003).C. Application of Law to Facts
The State presented evidence that Francisco died in his apartment as a result of three gunshot wounds. An eyewitness to the shooting testified that he and some friends were drinking beer with Francisco when a black man working with a white woman had unsuccessfully tried to rob them. The man shot Francisco three times before he fled. The witness led the police to the apartment where the white woman, later identified as Lisa Deaton, was staying. There was testimony linking Deaton to appellant and another woman, April Garcia, the night of the murder. Garcia testified for the State that while she waited in appellant's car she overheard Deaton and appellant planning to rob an apartment with only two men in it. Garcia testified further that appellant returned to his car and confessed to her that there had been five or six men in the apartment rather than two, and that he had shot one of them three times. Appellant argues the State did not meet its burden of proof because it offered no physical evidence connecting appellant to the crime and Garcia was not a credible witness. In particular, appellant points to Garcia's conviction on charges of manifestation of prostitution and to inconsistencies in her testimony. Appellant points out Garcia testified at trial that she was sitting in appellant's car when she overheard him and Deaton planning the robbery, but in a prior statement she said she was outside the car. Further, her testimony that Deaton was with her and appellant for most of the time preceding the shooting conflicts with the eyewitness testimony that Deaton was in the apartment for two hours before the shooting. The fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones, 944 S.W.2d at 647. The jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp, 707 S.W.2d at 614. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally caused the death of Francisco in the course of committing or attempting to commit a robbery. Appellant also challenges Garcia's testimony as uncorroborated accomplice testimony. An accomplice witness is someone who participated with another before, during, or after the commission of a crime. Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim. App. 1987); Worthen v. State, 59 S.W.3d 817, 820 (Tex. App.-Austin 2001, no pet.). One is not an accomplice witness because he knew of a crime and failed to disclose, or even concealed it. Gamez, 737 S.W.2d at 322. Nor does presence when a crime is committed compel the conclusion that a witness is an accomplice. Id. "[A] person is an accomplice if he or she could be prosecuted for the same offense as the defendant, or a lesser included offense. By this we mean that a person is an accomplice if there is sufficient evidence connecting them to the criminal offense as a blameworthy participant." Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998) (footnotes and citation omitted). Appellant claims that Garcia is an unindicted accomplice whose testimony requires corroboration because Garcia testified she heard appellant planning the robbery before it occurred, and she was with him afterwards when he confessed to the murder. However, we must determine if the facts respecting Garcia's involvement meet the requirements set forth in Worthen, 59 S.W.3d at 820. Worthen, Blake, and other cases, instruct us that if the witness has not been charged, he is not an accomplice as a matter of law unless the evidence is sufficient to convict him of the same offense or for a lesser included offense. Worthen, 59 S.W.3d at 820, citing Blake, 971 S.W.2d at 454-55. Further, those cases provide that, "A witness is not an accomplice merely because he knew about the crime and failed to disclose it, or even if he acted to conceal it." Worthen, 59 S.W.3d at 820, citing Blake, 971 S.W.2d at 454. In Worthen, the witness knew about a robbery beforehand, tried to talk Worthen out of committing the robbery, agreed to "babysit" Worthen's child while he went to Austin to commit the robbery, and participated in concealing stolen property afterwards. The court of appeals reasoned that the only affirmative act which arguably demonstrated the witness participated in the crime was his babysitting of Worthen's child. Then, the court of appeals concluded that this conduct was so unrelated to the charged offense, it was not sufficient to make the witness an accomplice as a matter of law. Additionally, the court of appeals determined that concealing the stolen property did not render the witness an accomplice since receipt of stolen property is not a lesser included offense to robbery. Therefore, the unindicted witness in Worthen was not an accomplice as a matter of law. The record reflects that Garcia knew about the robbery beforehand and heard about the murder afterwards. However, there was no evidence that she could be prosecuted for either of these crimes or any lesser included offenses. She could not be an accomplice merely because she knew about the crime and failed to disclose it. Worthen, 59 S.W.3d at 820. Accordingly, we conclude Garcia was not an accomplice, and her testimony need not be corroborated. Appellant argues the jury's finding of guilt is against the overwhelming weight of the evidence and asks this Court to review the factual sufficiency of the evidence. Roper v. State, 917 S.W.2d 128 (Tex. App.-Fort Worth 1996, pet. ref'd). Again, appellant points out there was no physical evidence linking appellant to this crime, and attacks the veracity of the State's main witness, Garcia. The details in Garcia's testimony regarding appellant's confession to her were consistent with other evidence; i.e., Francisco was shot three times, and there were more than two men in the apartment. Although there was no physical evidence linking appellant to the crime, there was no physical evidence linking anyone else to the crime or exonerating appellant. Appellant does not point to evidence that is inconsistent with his guilt or that points to another possible perpetrator. Rather, he attacks the sufficiency of the State's evidence. Based on the totality of the evidence, we conclude the evidence is not so weak that the verdict is clearly wrong or unjust, nor is it so against the overwhelming weight of the evidence as to be wrong and unjust. Johnson, 23 S.W.3d at 11. We resolve appellant's first and second issues adversely to him.Peremptory challenges to the jury panel
In his third issue, appellant complains that the trial court erred in overruling his objections to the jury panel based on the State's alleged misuse of peremptory strikes in violation of the doctrine established in Batson v. Kentucky, 476 U.S. 79 (1986). Appellant challenged the State's peremptory strikes of venire members nos. 10 and 24, who are both black. After the State gave its reasons for the strikes, the court overruled the objection.A. Applicable Law
In Batson the United States Supreme Court held that the State's purposeful use of peremptory strikes in a racially discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment to the Unites States Constitution. Batson, 476 U.S. at 96. Under Batson and its progeny, there is a three-step process for evaluating an objection to peremptory strikes. Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the defendant must make a prima facie showing that the State has exercised peremptory strikes on the basis of race. Second, if the defendant makes a prima facie showing of purposeful discrimination, the State must then provide a race-neutral explanation for the strikes. See Miller-El v. Cockrell, 537 U.S. 322, 328 (2003); Hernandez, 500 U.S. at 358-59; Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App. 1992). The State's explanation need not be persuasive or even plausible; the State's reason for the strikes will be deemed race neutral unless a discriminatory intent is inherent in the prosecutor's explanation. Purkett v. Elem, 514 U.S. 765, 768 (1995); Bausley v. State, 997 S.W.2d 313, 316 (Tex. App.-Dallas 1999, pet. ref'd). Third, if the State provides a race neutral explanation for its strikes, the defendant must then rebut the State's explanation or show that the explanation was merely a pretext. See Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim. App. 1991); Bausley, 997 S.W.2d at 316; Johnson v. State, 959 S.W.2d 284, 289-90 (Tex. App.-Dallas 1997, pet. ref'd). The defendant has the ultimate burden of persuasion on its allegation of racial motivation for peremptory strikes. See Purkett, 514 U.S. at 767-68; Bausley, 997 S.W.2d at 316. The defendant must prove by a preponderance of the evidence that the reasons given by the State are a sham or a pretext for discrimination; simply stating its disagreement with the State's explanation is insufficient. Johnson, 959 S.W.2d at 290. Appellate courts examine the record in the light most favorable to the trial court's ruling and reverse only when the ruling is clearly erroneous. Bausley, 997 S.W.2d at 315.B. Application of Law to Facts
Appellant challenged the State's peremptory strikes of two black venire panel members, numbers 10 and 24, as racially discriminatory. After appellant challenged the State's peremptory strikes as being racially motivated the court gave the State an opportunity to give a race-neutral reason for the strikes. The State explained that both panel members were struck primarily because of their views on punishment. During voir dire, the State asked the jury panel their views on the primary goal of punishment. Ten jurors answered that rehabilitation was the primary goal of punishment. Of those ten prospective jurors, six had already been struck for other reasons. The four remaining prospective jurors included numbers 10 and 24 who were black, number 6, a white female, and number 16, a white male. The State struck all four of the remaining prospective jurors because of their views on punishment. Rehabilitation as a primary goal of punishment is a race-neutral reason for exercising a peremptory strike. Harris v. State, 996 S.W.2d 232, 235 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (citing Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Crim.App. 1993)). The State struck prospective juror number 24 for the additional reason that there was a possibility he had a criminal record. A person with the same name and birth date as number 24 had a felony conviction for possession of a controlled substance in 1988. A venire person's prior trouble with the law is a legitimate race-neutral reason for exercising a peremptory strike. See Anderson v. State, 758 S.W.2d 676, 680) (Tex. App.-Fort Worth 1988, pet. ref'd). Appellant's attorney did not cross-examine the State regarding the reasons offered for striking these prospective jurors, nor did appellant's attorney offer any evidence to show that these reasons were pretextual or a sham. Based on this record, we conclude appellant has failed to meet his burden of proving discrimination in the State's use of peremptory strikes. Appellant's third issue is decided adversely to him.Hearsay objections
In his fourth, fifth, and sixth issues, appellant complains the trial court erred in overruling his objections to hearsay testimony. The State responds by arguing appellant did not object with sufficient specificity to preserve his error on appeal. Even if error was preserved, the State argues the testimony appellant objects to in his fourth and fifth issues was admissible to explain the course of the police investigation, and the testimony appellant objects to in his sixth issue was admissible as being against the witness's penal interest.A. Preservation of Error
The State argues appellant has not preserved these points for appellate review because his hearsay objections were not sufficiently specific to make the trial court aware of the complaint as required by Rule 33.1(a) of the Texas Rules of Appellate Procedure. Hearsay objections must be preserved with a timely and specific objection to the evidence. Thornton v. State, 994 S.W.2d 845, 853 (Tex. App.-Fort Worth 1999, pet. ref'd). As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). The State cites Jones v. State, 843 S.W.2d 92, 98 (Tex. App.-Dallas 1992, pet. ref'd) for the proposition that a "hearsay" objection without specifying the reasons the objectionable testimony is hearsay is too general to preserve error. However, in Jones, this Court considered a challenge to an officer's testimony regarding tracing license plate numbers back to their owners. The manner in which this particular testimony constituted hearsay may not have been clear without a more specific objection. Thus, the facts in Jones may be the exception to the general rule expressed by the Texas court of Criminal Appeals in Lankston: "Identifying challenged evidence as hearsay or as calling for hearsay should be regarded by courts at all levels as a sufficiently specific objection, except under the most unusual circumstances." Id. at 910. An objection must also be timely in order to preserve error for review. Tex.R.App.P. 33.1; Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997). In order to be considered timely, the objection must be made at the first opportunity or as soon as the basis of the objection becomes apparent. Jones v. State, 111 S.W.3d 600, 604 (Tex. App.-Dallas 2003, pet. ref'd) (citing Lagrone, 942 S.W.2d at 618).B. Standard of Review
We review the trial court's decision to admit evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g); Gurka v. State, 82 S.W.3d 416, 420 (Tex. App.-Austin 2002, pet. ref'd). As long as the trial court's ruling was within the zone of reasonable disagreement, the appellate court will not reverse the ruling. Montgomery, 810 S.W.2d at 391.C. Hearsay Exception for Police Investigation
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). Police officers have been allowed to testify to information that might otherwise be considered hearsay in order to explain the course of an investigation or their presence at a crime scene. Thus in Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995), the court allowed a police officer to testify that the decedent's appointment book showed the defendant as a patient, which explained why the defendant became a suspect in the investigation. In Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim. App. 1992) overruled on other grounds, Maxwell v. State, 48 S.W.3d 196, 200 (Tex.Crim.App. 2001), the court allowed a police officer to testify he began to suspect the defendant, and decided to get an arrest warrant for him, after listening to another detective question a third person. "Because the statement was not offered to prove the truth of the matter asserted, but to show why the officer got an arrest warrant for and arrested appellant it was not objectionable as hearsay." Id. "The critical question is whether there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom." Thornton, 994 S.W.2d at 853. In contrast, in Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim. App. 1989), the court held a police officer's testimony was inadmissible hearsay because it was offered for no other reason than to inferentially prove what another officer had told him. Although the court acknowledged that it was permissible for an officer to explain his conduct by testifying that he was acting in response to "information received," he should not be permitted to testify to "historical aspects of the case, replete with hearsay statements in the form of complaints and reports . . ." Id. Thus in Hill v. State, 817 S.W.2d 816, 817 (Tex. App.-Eastland 1991, pet. ref'd), the court held a police officer's testimony regarding why he staked out the defendant should have been limited to testimony that he acted upon "information received," and he should not have been allowed to testify to the specific details of the information he received from an informant.D. Application of Law to Facts
1. Fourth Issue — Police Officer Testimony In his fourth issue appellant complains that at trial, Officer Powers was allowed to testify to his conversation with Mr. Rivera, an eyewitness to the shooting who did not testify at the trial. Appellant complains of the following testimony:Q. And you talked specifically to Mr. Rivera; is that correct?
A. Yes, sir.
Q. Can you describe the information you obtained from him to further the investigation?
MR. MASSAR: Your Honor, again, it calls for hearsay.
THE COURT: All right. With regards to that question, I'll overrule your objection.
But Officer, don't tell me anything that Mr. Rivera specifically told you.
THE WITNESS: Yes, sir.
A. Mr. Rivera spoke —
MR. MASSAR: Judge, would you give me a ruling on that objection?
THE COURT: I overruled it.
Go ahead. THE WITNESS: Okay.
A. Mr. Rivera spoke very, very little English, and the only information that I could get out of Mr. Rivera —
MR. MASSAR: Your Honor, that calls for hearsay.
THE COURT: Overruled.
MR. MASSAR: I'm sorry?
THE COURT: Overruled.
A. — was that a black male and a white female were in the apartment and robbed Mr. — the victim.The State contends first that appellant's hearsay objection was too general to preserve this point for our review. Appellant's attorney stated the reason for his objection in a timely manner with sufficient specificity to make the trial court aware of the complaint. Tex.R.App.P. 33.1(a). Moreover, the court's instruction to the witness not to "say anything Mr. Rivera specifically told you" indicates the court understood appellant's objection. Appellant's "hearsay" objection was sufficiently specific to inform the court of the reason for his objection at a time when the court could have acted on it. Lankston, 827 S.W.2d at 909-10. Accordingly, we conclude this issue has been preserved for our review. The State argues Officer Powers's testimony was permissible as showing how the police investigation progressed, particularly regarding why it came to focus on Deaton and appellant. "An officer's testimony is not hearsay when it is admitted, not for the truth, but to establish the course of events and circumstances leading to the arrest." Thornton, 994 S.W.2d at 853; see also Lee v. State, 29 S.W.3d 570, 577 (Tex. App.-Dallas 2000, no pet.). To the extent Officer Powers's testimony was offered to show how the investigation began and how appellant became a suspect, it was admissible. See Dinkins, 894 S.W.2d at 347. "An extrajudicial statement or writing which is offered for the purpose of showing what was said rather than for the truth of the matter stated therein does not constitute hearsay." Id. Officer Powers was specifically asked what information he had obtained from the witness to help him further the investigation. Regardless of whether what the witness told him was true, it explained why the police arrested appellant. Although it may not have been offered for its truth, this testimony may have included an impermissible hearsay aspect. See Schaffer, 777 S.W.2d at 114. Therefore, we will analyze whether the introduction of this testimony would have been harmless error if it was admitted for the truth of the matter stated therein. Texas Rule of Appellate Procedure 44.2(b) provides that a non-constitutional error "that does not affect substantial rights must be disregarded." A violation of the evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. Jones, 111 S.W.3d at 604. When a non-constitutional error is made during the course of a trial, it will be disregarded as a harmless error if the error did not affect the substantial rights of the appellant. Gabriel v. State, 973 S.W.2d 715, 719 (Tex. App.-Waco 1998, no pet.) (citing Tex.R.App.P. 44.2; King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King, 953 S.W.2d at 271. In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002) (footnote omitted). "[S]ubstantial rights are not affected by the erroneous admission of evidence '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.'" Motilla, Id. at 355 (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998)). Any complaint concerning the admission of evidence is waived when a party fails to object to the same or similar evidence admitted at another point in the trial." See Jones, 111 S.W.3d at 606 (holding any error in admitting witness's opinion of appellant's mental condition was waived when appellant failed to object when same witness was asked whether in witness's opinion appellant had been drinking). Even if there is no waiver, "[i]t is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence." See Jones, 111 S.W.3d at 604-05 (holding that any error in allowing testimony that an invalid breath test had been administered, was harmless in light of the ample other evidence in the record of appellant's intoxication) (citing Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999)). Although Officer Powers's testimony was important as identifying the murderer as a black man, this same evidence was admitted through the testimony of Eugenio, another eyewitness who did testify at trial. Moreover, Eugenio testified he recognized the white woman who accompanied the black man and who left the apartment immediately as the shooter came in. After the shooting, Eugenio was able to take the police to the apartment where this woman lived and identify her for the police. In light of the more detailed, first-hand testimony of Eugenio, we have more than a fair assurance that the officer's testimony regarding his conversation with Rivera did not influence the jury or had just a slight effect, and any error was therefore harmless. See Motilla, 78 S.W.3d at 360. The fourth issue is decided adversely to appellant.
2. Fifth Issue — Police Officer Testimony
Appellant complains in his fifth issue that during the State's redirect examination of Officer Powers, he testified about information he put in his report that he obtained from Mr. Rivera, a witness who did not testify at trial. Below is the pertinent portion of the record:Q. And you told the jury that you all communicated very difficultly, but you did communicate, correct?
A. Yes, sir.
Q. And there's enough information that you provided in your supplement here in paragraph three that there was, in fact, a robbery, correct?
A. Yes.
Q. In fact, you had enough information to say that there were — three shots were fired —
A. Yes, sir.
Q. — and who had the gun?
A. Yes, sir.
Q. Now, whatever words were spoken, this is —Before the above question was completed, appellant's attorney objected to the "leading nature of the questions." Then, the court asked that the question be completed for the record. The questioning resumed:
Q. (BY MR. KIRLIN:) Despite the words you're using in your report, are those your words, based on the information you had, or are those words that the — this individual used himself?At this point, the court overruled appellant's objection to the leading questions, and appellant raised an additional objection on the grounds of hearsay. The court also overruled this objection. It is plain from a review of this portion of the record that Officer Powers was testifying to information he received from a witness who was not present at trial. However, appellant's attorney did not make any objection until after Officer Powers answered the questions regarding the fact that there was a robbery, that three shots were fired, and that he could say who had the gun. Appellant's objection was made after the State elicited the allegedly objectionable testimony. Thus, appellant's hearsay objection was not timely, appellant has not preserved his fifth issue for our review, and this issue is decided adversely to him. See Jones, 111 S.W.3d at 604.
3. Sixth Issue — April Garcia Testimony
In his sixth issue, appellant complains Garcia was allowed to testify to a conversation she overheard between Deaton and appellant in which they planned the robbery. The State argues that appellant failed to preserve error as to this testimony, and in any event any error in allowing this testimony was cured because the same evidence was admitted elsewhere without objection. Garcia's testimony of which appellant complains is reproduced below along with our analysis as to each of the allegedly erroneous evidentiary rulings:A) First Objection
A. We were in there maybe 20 minutes.
Q. 20 minutes after you came from —
A. Yes.
Q. — upstairs? And what happened after that 20 minutes?
A. Lisa asked to — well, tells A.D. that she needed to talk to him.
Q. Okay. And was that in front of everybody, did she say that?
A. Yes, she did. She goes, I need to talk to you, A.D.
MR. MASSAR: Again, your honor, I'm going to object to hearsay.
THE COURT: Overruled. In the above testimony, Garcia testified twice that Lisa told A.D. she needed to talk with him. Appellant did not object until after the second question and answer on this subject. The testimony was hearsay. However, the testimony to which objection was made had already been admitted without objection. Thus, any error in overruling the objection to hearsay was waived. Jones, 111 S.W.3d at 606.
B) Second Objection
Q. How long did this other black male stay with you and A.D. and Lisa Deaton?
A. Maybe 10, 15 minutes.
Q. And he and Lisa Deaton talked?
A. Yes.
Q. Were you paying attention to what they were saying?
A. I was paying attention. I mean, he would — they were just — he would — she was asking the other black male, you know, where he was going, and he responded he was going home.
MR. MASSAR: Objection, your Honor. Hearsay.
THE COURT: Overruled.The objection here was timely and the testimony was hearsay. However, there is no indication that it caused any harm. Tex.R.App.P. 44.2(b); Tex. R. Evid. 103(a) (error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected). This testimony does not appear to be relevant to any issue in the case and appellant has not advised us how its admission was harmful.
C) Third Objection
Q. (BY MR. KIRLIN:) At some point in time, though, are you saying that — that additional black male that arrived at the tables left the table, left you and A.D. and Lisa Deaton alone again?
A. Yes.
Q. And did y'all continue to sit out there and talk at the tables, or did you go somewhere else?
A. Lisa Deaton said that she needed to go check out the scene, and she left.
Q. Did that strike you funny when she said it, or did you know what she was talking about?
A. I didn't know what she was talking about.
Q. But her statement was she needed to go check out the scene?
Yes, sir.
MR. MASSAR: Again, Your Honor, I'm going to object to hearsay.
THE COURT: Overruled.In the above testimony, Garcia testified twice that Lisa Deaton told her she "needed to check out the scene." Appellant did not object until after the second question and answer on this subject. The testimony was hearsay. However, the testimony had already been admitted without objection. Thus, any error was waived. Jones, 111 S.W.3d at 606.
D) Fourth Objection
Q. And Lisa Deaton was coming from directly from the front of you?
A. Yes, sir.
Q. And they both approached A.D.'s vehicle.
A. Yes, sir.
Q. Did they — and where did they stop?
A. They stopped right in front of the car in — by the front — the hood of the car. Q. So by the hood area of the car.
A. Yes, sir.
Q. Did you get out of the car?
A. No, sir, not at first.
Q. Could you see what they were doing out front?
A. They were standing there talking.
Q. And could you hear them talking?
A. Yes, I could.
Q. And explain to the jury how you could hear them talking.
A. The windows were cracked a little bit in both the front passenger and the driver's side.
Q. And can you tell the jury what you overheard being said between Lisa Deaton and the defendant, A.D.
MR. MASSAR: To which I object as hearsay, Your Honor.
THE COURT: Overruled.
A. Lisa Deaton was telling A.D. where he could get quick cash and dope and that there were only two guys in the apartment and that she needed $20 to go to the apartment again to make sure it was only two guys.Appellant made a timely and proper hearsay objection to this testimony. As set out below, the State continued questioning Garcia about the conversation where Deaton asked appellant for money so she could surreptitiously check out the apartment. This time, the testimony was elicited without objection.
Q. (BY MR. KIRLIN:) Now, did you see — you heard Lisa Deaton say all of that? A. Yes, sir.
Q. How did the — did A.D. respond to that, or did he give her any money in response to her saying that she needed $20?
A. Yes. A.D. asked her why. She said so I don't go over there naked, meaning no money. It looks suspicious. So he gave her a $20 bill.Since appellant made no objection as Garcia testified on this point, any error in overruling appellant's prior objection to Garcia's testimony that Deaton asked for money was waived. Jones, 111 S.W.3d at 606. The remaining aspect of Garcia's testimony, that Deaton told appellant of an apartment he could rob easily, was offered again in testimony to which appellant made his fifth objection and which is discussed below.
E) Fifth Objection
Later, Garcia testified again about the continuing conversations between Deaton and A.D. She said that Deaton used the $20 she received from appellant to go check out an apartment for him to rob, and that Deaton told appellant he would get his money back when he robbed the apartment.
Q. And did she come back to the car?
A. Yes, she did.
Q. Did she get in the car this time?
A. Yes, she did.
Q. Where did she place herself in the car?
A. Behind the driver's seat.
Q. And when she got into A.D.'s car at that time, was there a conversation between her, — Lisa Deaton and A.D.?
A. Yes. Lisa Deaton handed him $10 back and he asked, where's my $20? And she said, I bought dope for myself and you'll get it back when you go hit this apartment. And there are two guys. She said, and there are two guys only.
MR. MASSAR: Okay, Your Honor, same objection.
THE COURT: Overruled.
Q. (BY MR. KIRLIN:) This is what Lisa Deaton told A.D.?
A. Yes, sir.Appellant's objection came after the objectionable testimony was elicited. See Lagrone, 942 S.W.2d at 618 (holding objection must be made at first opportunity, or as soon as basis becomes apparent in order to be timely). Appellant's objection would have properly been interposed after the question and before the answer. Appellant's late objection allowed Garcia to repeat the testimony to which appellant had previously made a timely objection, in particular that there was an apartment he could rob. However, even if appellant's objection was not late and the admission of this testimony was error, such error was harmless. Garcia had testified to the same general information as described under the topics set out above: A) First Objection (Deaton said she needed to talk to appellant), C) Third Objection (Deaton said she needed to go check out the scene), and D) Fourth Objection (Deaton needed money so she would not "go over there naked" and look suspicious). Further, Garcia described her conversation with appellant as they drove away from the apartment complex where the homicide occurred. The testimony regarding this conversation graphically described the events which concluded in the homicide. Jones, 111 S.W.3d at 604-05 (citing Brooks, 990 S.W.2d at 287.) "[S]ubstantial rights are not affected by the erroneous admission of evidence '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.'" Motilla, 78 S.W.3d at 355 (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998)). In determining whether the jury's decision was adversely affected by this error, we "should consider everything in the record." Motilla, 78 S.W.3d at 355. The record includes instances in which the same information to which appellant made a timely objection was properly admitted without objection. See Brooks, 990 S.W.2d at 287; Jones, 111 S.W.3d at 604-05. In particular, Garcia testified without objection to her conversation with appellant the night of the homicide. In light of the properly admitted evidence, we conclude the testimony which was admitted over appellant's timely objection did not influence the jury's verdict or had just a slight effect. See Motilla, 78 S.W.3d at 360. Thus, any error in overruling appellant's hearsay objections was harmless and not an abuse of discretion. Accordingly, we conclude adversely to appellant on the sixth issue.
Ineffective assistance of counsel
In his seventh issue, appellant claims he received ineffective assistance of counsel because his attorney elicited testimony from a witness identifying appellant as the perpetrator of the crime. Specifically, appellant complains of his attorney's questions on redirect examination of Detective Casavant. During the redirect examination of Detective Casavant by appellant's attorney the following exchange occurred:"Q. Okay. Out of every possible eyewitness to this offense, has anyone identified Anthony West?
A. He was identified as running from the apartment after the gunshots were fired.
Q. Out of every possible eyewitness to the shooting inside the apartment, has anyone identified Anthony West?
A. They weren't able to identify him out of the photo lineups."A. Standard of Review We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim. App. 1986). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim. App. [Panel Op.] 1981). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. An appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions — whether those actions were of strategic design or the result of negligent conduct. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Id. at 813. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. B. Application of Law to Facts Appellant complains that his counsel asked an open-ended question of a witness and thereby elicited otherwise inadmissible testimony that tended to identify appellant as the perpetrator of the crime. Appellant points out that identity was a hotly contested issue. Presumably, appellant complains of his attorney's question regarding whether any of the possible eyewitnesses to the offense had identified appellant. The witness was a detective who had helped in the investigation. The detective answered that appellant was seen "running from the apartment after the gunshots were fired." Appellant's attorney immediately followed up by limiting the question and asked the witness whether any of the possible eyewitnesses "to the shooting inside the apartment" had identified appellant. The witness admitted that they were not able to identify appellant out of the photo lineups. This testimony arguably helped the appellant by emphasizing the lack of conclusive positive eyewitness identification. Although the record on appeal is silent as to counsel's trial strategy or motivation, at most appellant has shown a single alleged miscalculation during otherwise satisfactory representation. See Thompson, 9 S.W.3d at 814. Appellant has failed to overcome the presumption that counsel was effective and has not shown deficient performance by a preponderance of the evidence. Id. Appellant's seventh issue is decided adversely to him.
Closing argument
In his eighth, ninth and tenth issues, appellant claims the trial court erred in failing to sustain his objections to the prosecutor's improper jury argument during the guilt or innocence phase of the trial. Specifically appellant complains the prosecutor tried to shift the burden of proof to appellant by suggesting he should prove why the State's witness was not credible, and by suggesting appellant should prove that tests of his hands and clothes for physical evidence of gunpowder residue were negative. Additionally, appellant claims the State improperly offered testimony outside of the record when it discussed the meaning of particular terms in "street language" when no witness had used such language.A. Applicable Law
Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Lagrone, 942 S.W.2d at 619. To constitute reversible error, jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence. Dooley v. State, 65 S.W.3d 840, 843 (Tex. App.-Dallas 2002, pet. ref'd). In most cases, if error occurs, an instruction to disregard will cure any error committed. Id. B. Application of Law to Facts 1. Eighth Issue — April Garcia's Credibility In his eighth issue appellant claims the State improperly tried to reduce its own burden of proof and shift the burden to prove his innocence to him in its closing argument to the jury. Appellant complains of the State's argument regarding the credibility of the State's main witness, April Garcia, as follows: "But the key about April Garcia that I want you to remember, they want you to say you can't believe her. She had something to hide. They've got to do better than that. If they want you to say you can't believe April Garcia, make them prove to you a motive, a bias to why she would be telling a lie." Appellant's attorney objected on the grounds the State was shifting the burden of proof. The trial court overruled appellant's objection, but instructed the jury as follows: "Members of the jury, there exists no burden on the defense to prove the innocence of their client." Appellant's attorney had attacked Garcia's credibility in his closing argument, asking whether she was being completely truthful and whether she had a reason to lie. By asking what motive Garcia had to lie, the State responded to appellant's closing argument that suggested Garcia did have a motive to lie. Thus the State was responding to appellant's attack on the veracity of their witness. See Vasquez v. State, 830 S.W.2d 829, 831 (Tex. App.-Corpus Christi 1992, pet. ref'd). We conclude that this argument was permissible, the trial court's ruling was not erroneous, and we resolve appellant's eighth issue against him.2. Ninth Issue — Existence of Exculpatory Evidence
In its ninth issue, appellant complains of the State's argument regarding the possible existence of tests on the appellant for physical evidence such as gunpowder residue. The State argued to the jury, "I will submit to you, don't you know, if they were negative results, even though they don't have a burden of proof, they'd be the first ones up here, telling you, showing you that they were negative results." Appellant's attorney objected on the grounds the State was improperly shifting the burden of proof. The State argued it was responding to appellant's argument and the trial court overruled appellant's objection. We conclude that the State's argument was improper. The argument suggested to the jury that appellant must prove his innocence by offering "negative" results to a test for gunpowder residue. The trial court's overruling of the objection was error. However, in order to constitute reversible error, the argument must have been extreme or manifestly improper or inject new and harmful facts into evidence. Dooley, 65 S.W.3d at 843. For the reasons set out below, we conclude that the improper argument did not rise to the level of reversible error. In his closing argument, appellant's attorney had stressed the lack of physical evidence linking appellant to the crime, noting that had the State obtained any positive test results for physical evidence such as gunpowder residue, the State would have offered these results into evidence. Although in its response the State commented in passing that appellant did not have the burden of proof, the State essentially asked the jury to require appellant to prove the lack of evidence linking him to the crime. Yet, this incident of improper argument was isolated. Cf. Whiting v. State, 797 S.W.2d 45, 48 (Tex.Crim.App. 1990) (holding State's deliberate and repeated misstatements of the burden of proof on self-defense in jury argument improper). A review of the entire jury argument shows the State was not attempting to shift the burden of proof. After arguing to the court in response to the objection that it was merely responding to appellant's argument, the State continued by asking the jury not to speculate on the lack of evidence, but to take the evidence presented. In effect, the State emphasized the lack of its own evidence by commenting that it could not fabricate physical evidence, but could only present what was available. Certainly, there was no deliberate and repeated misstatement as in Whiting. Whiting, 797 S.W.2d at 48. Appellant's ninth issue is resolved against him.3. Tenth Issue — Testimony Outside the Record
In his tenth issue, appellant complains the State improperly offered testimony outside the record into evidence when it argued the meaning of several terms in "street language" during its closing argument. In its closing argument, the State described the activities surrounding the planning of the crime:And then she says that Lisa Deaton leaves shortly, but not before she gets $20 from this man. She goes, checks the place out, comes back with $10. He says where's the rest of my money? Oh, you'll get it when we do this lick, when we get this lick. And that's street language, ladies and gentlemen, for robbing a place or robbing people.Appellant's attorney objected on the ground that this testimony was outside the scope of the record. The trial court overruled his objection. Nowhere in the record is there testimony in which a witness uses the terms "do this lick" or "get this lick." April Garcia testified that Lisa Deaton said appellant would get the rest of his money "when you go hit this apartment." The State's explanation of the meaning of these street terms had no place in this trial. Nor did the State's explanation of terms fall into any of the permissible categories of proper jury argument. See Lagrone, 942 S.W.2d at 619. However, to constitute reversible error, jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence. See Dooley, 65 S.W.3d at 843. Comments upon matters outside the record are subject to the standard of harm for nonconstitutional errors. Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000). Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." Determining harm in improper argument cases requires balancing three factors: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of conviction absent misconduct. Martinez, 17 S.W.3d at 693. While it is arguable that this testimony injected new neutral facts into evidence, there was testimony that Deaton and appellant discussed committing a robbery. The State merely used different terminology for the planned crime. There were no curative measures taken in this case, but the prejudicial effect of the improper argument was not great and the probability of conviction absent this misconduct was high. We resolve appellant's issues eight, nine, and ten adversely to him.