No. 74,080
Delivered: October 20, 2004. DO NOT PUBLISH.
Appeal from Harris County.
WOMACK, J., delivered the opinion for an unanimous Court.
The appellant was found guilty of the capital murders of Thankachen Mathai and Achamma Mathai, who were husband and wife. He was sentenced to death on March 8, 2001. On appeal, he presents six points of error about the trial on the issue of guilt, and five more points about the punishment stage. The Mathais owned and operated a convenience store in Houston. On the night of February 12, 2000, Thankachen was working at the store, and Achamma had brought him dinner. Between 10 and 11 p.m., Cory Calloway bought gasoline from the store's pumps for his 1989 Lincoln. Leaving the engine running at the gas pumps, Calloway went to a pay telephone at the side of the building. While Calloway talked on the phone, Garvina Sadiki came in the store to buy merchandise. As Sadiki paid for her items, a man dressed in a hooded jacket entered the store with a gun in his hand The man fired a shot and said, "This is a robbery. Don't anybody move." The robber ran behind the counter where Thankachen and Achamma stood, and ordered Thankachen to open the register. He ordered Sadiki not to look at him, and she obeyed. When Thankachen could not get the register open, the robber shot him. The man then ordered Achamma to open the register and threatened to shoot Thankachen again if she did not. Achamma cried and screamed, begging the man not to hurt them. As she fumbled with the register, the man pointed the gun toward Thankachen and fired another shot. Hearing police sirens, the robber cursed and ran from behind the counter to the front door only to discover that it had been locked. The man screamed for Achamma to open the door. Sadiki heard the lock open, and she saw the man push open the door. Then the robber returned to the counter where Achamma and Sadiki were standing. He backed up to Sadiki, keeping his face hidden, and demanded her keys. Sadiki handed the man her keys. The man said to Achamma, "Bitch," and he shot her in the head. He then ran out the front door. Outside the store, Calloway was still talking on the telephone. He heard the gunshots and then "a loud bust through the door." He looked up and saw a person wearing a hooded sweater run toward his Lincoln. Calloway ran toward the man, who pointed a gun at him. Calloway retreated to safety, and the man drove away in Calloway's Lincoln. Calloway went in the store and called for help. Police officers arrived quickly. Achamma was already dead. Thankachen died shortly after being taken to a hospital. I. Guilt-stage Issues The appellant's complaints include (A) two points about illegal search and seizure, (B) two points about improper identification procedures before trial, (C) a point about improper identification procedures during trial, and (D) a point about the court's charge.
A. Search and Seizure 1. Identifying the Appellant's Complaints
We must specifically identify the appellant's complaints about search and seizure, because the facts and the law will require different treatments of the several complaints. We find that, within his first two points, the appellant presents nine complaints. The first point of error in the appellant's brief is that the "trial court erred in denying the appellant's motion to suppress the appellant's arrest in violation of" Article I, Section 3 of the Texas Constitution and Articles 14.04 and 38.23 of the Code of Criminal Procedure. The second point, which complains of the same error, is different only in that it invokes the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. The motion to which the points refer was the appellant's "Motion to Suppress the Arrest and Search of Defendant." The title of his motion cannot be taken literally. A court could not have suppressed the arrest and the search of the appellant, which were performed months before the motion was filed. It could have "suppressed," by ruling inadmissible, evidence that was obtained as a result of an illegal arrest or search. The texts of the motion and the brief, and the record of the proceedings before and during the trial, make it clear enough that these points complain of the admission of such evidence. The appellant's brief specifies three kinds of evidence: "As a result of the appellant's arrest, the State was able to introduce at trial [1] evidence that was seized from apartment 414 (R. XXV, 112-113; State's Exhibit 111) as well as [2] the line-up (State's Exhibit 4) and [3] Calloway's `strong tentative' identification." Therefore, we can tell that the appellant's first two points comprise nine complaints about the admission of evidence. Point one has six complaints, three of which are that the admission of each kind of evidence was contrary to the state constitution, and three of which are that the admission of each kind of evidence was contrary to state statutes. Point two presents three complaints, which are that the admission of the three kinds of evidence violated the federal constitution. 2. Inadequate Briefing
The appellant's brief presents and argues points one and two together. The argument is that the arrest of the appellant without warrant violated Article 14.04 of the Code of Criminal Procedure. The argument has no discussion or citation of either the state constitution or the federal constitution. We hold that the three state-constitutional complaints in point one and the three federal complaints in point two are inadequately briefed. Appellate complaints that purport to be based on both state law and federal constitutional law are not rare. We have held more than once that the mere invocation of a provision of the state constitution is not enough; the appealing party must present an argument, supported by authority, that explains why each constitution has been violated. An appealing party is obliged to present argument and authority for complaints that the federal constitution was violated as well as for complaints that are based on state law. The appellant has presented neither argument nor authority to support the nominal complaints in point one that the denial of his motion violated the state constitution or the complaint in point two that the ruling violated the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. Therefore, we hold that the six constitutional complaints in points one and two are inadequate for review. Point of error two is overruled. 3. Facts relevant to Point One
We shall turn to the portion of point one that complains that, under state statutes, the trial court erred by admitting three types of evidence: (1) "evidence that was seized from apartment 414," (2) "the line-up (State's Exhibit 4)," and (3) "Calloway's `strong tentative' identification." About a day and a half after the Mathais were murdered and Calloway's automobile was stolen, someone reported to police that the automobile was parked at an apartment complex several miles from the crime scene. Police seized the vehicle. Five days after the crime, an individual gave investigators information that they used to get a warrant to search an apartment near the place where the stolen automobile had been found. In the apartment, they found property that had been taken from Calloway's automobile. At the apartment were three people (one of whom was the appellant's brother) who said the appellant told them he had shot and killed some people at a store and stolen a customer's car. They said that the appellant had brought stolen property with him, and that he had asked one of the occupants to hide his gun for a few days. The appellant's brother told investigators where the appellant lived. While the investigators were preparing an affidavit for a warrant to arrest the appellant, other officers kept a watch on the apartment building where the appellant lived. After midnight, the officers saw the appellant walking near the apartment building, and they seized him. They had no warrant, and the investigators abandoned their efforts to get a warrant when they heard that the appellant had been arrested. The appellant gave the officers written consent to search the apartment, which was the "apartment 414" to which his brief refers. The officers went to the apartment, where Andrea Nero opened the door. She said it was her apartment. Officers testified that she and the appellant lived there together. She consented to the search, and she added her signature to the written consent that the appellant had signed. In the apartment, the officers found a "gym bag" or "canvas bag" that contained a box of ammunition, which was admitted in evidence as State's Exhibit 111. Also in the bag were clothing, a camera and film, two telephones, some jewelry, and "some I.D. cards attached to a neck strap and had Reginald Willis and looked like an I.D. number of some type on each card." Later that day, investigators put the appellant in a lineup for viewing by Garvina Sadiki and Cory Calloway, the customers who were at the store during the robberies and murders. State's Exhibit 4 was a copy of a videotape recording of the lineup, which was shown to the jury. Calloway testified on direct examination that he recognized the appellant in the lineup, and that he told a police investigator that he "strongly agreed" that the appellant was the person who stole his automobile. He requested to see the appellant in a hood, because the person who stole his car was wearing a hooded sweatshirt, but the police could not find one to put on the people in the lineup. On cross-examination, Calloway testified that he told the police officer, "I was strongly tentative. . . . I said I would be 100 per cent sure if I see the hood," that "I strongly believed that it was" the appellant, and that "I would be more sure if I had the hood. . . . But that's what I meant by saying positive, is being strongly tentative about it. The only reason I had doubt was the hood." A police investigator who conducted the lineup gave similar testimony about Calloway's identification of the appellant at the lineup. 4. Mootness of Complaint About Admission of Evidence Seized from Apartment 414
The appellant complains that the trial court erred in admitting the evidence seized from Apartment 414. This evidence was the box of ammunition that officers found in the apartment. The appellant argues that it was illegally obtained, because it was found during a search to which he consented after being illegally arrested. The State argues that the illegal arrest did not taint the appellant's consent. The issue of the validity of the appellant's consent is moot. Andrea Nero's consent to search her apartment was sufficient authority for the officers' search. Insofar as point one complains of the admission of the box of ammunition on state-law grounds, it has no merit. 5. Failure to Object to Admission of Calloway's Identification
The appellant also complains that the trial court erred in admitting Calloway's identification of him. However, the appellant made no objection at trial to Calloway's testimony about his identification of the appellant in the lineup or to the police investigator's testimony about Calloway's identification of the appellant in the lineup. Rule of Evidence 103(a) says, "Error may not be predicated upon a ruling which admits . . . evidence unless . . . a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context." Therefore, error may not be predicated on the admission of that testimony. 6. Admission of the Line-Up (State's Exhibit 4)
The only one of the appellant's nine complaints in points one and two that was preserved in the trial court and properly presented for appellate review in this Court is that the videotape recording of the lineup was admitted in violation of state statutes. The officers seized him illegally, the appellant says, because they did not satisfy two requirements of Article 14.04 of the Code of Criminal Procedure for an arrest without warrant: that the persons who gave information to the police be credible and that the suspect be about to escape. By this illegal arrest, he says, the State obtained the videotape recording of the lineup. The State argues that the arrest was authorized by Article 14.04: "Not only did officers have probable cause to arrest appellant but appellant was about to escape so that there was no time to procure a warrant." The State sets out the evidence of probable cause, and continues: Officers then began preparing an arrest and search warrant. Meanwhile, other officers went to conduct surveillance at appellant's apartment. Between 1:15 a.m. and 1:30 a.m., officers observed a person fitting appellant's description leaving the vicinity of Apartment 414 at 11700 Bissonnet, and proceed down the sidewalk at a steady pace. Sgt. Welch approached appellant, identified himself as a police officer, and asked appellant his name. Appellant stated his name was Robert Woodard and produced his driver's license. Sgt. Welch placed appellant under srrest and put him in his police car. Sgt. Welch advised appellant he was under arrest for capital murder and gave him his Miranda warning.
These facts do not show, and the State does not attempt to explain how a court could find, that the appellant was about to escape. The State's brief continues by assuming that the arrest was illegal, and we hold that it was illegal in that it was not authorized by Article 14.04 of the Code of Criminal Procedure. Evidence obtained in violation of the laws of the state may not be admitted in evidence against the accused on the trial of a criminal case. There was no evidence that the illegal arrest of the appellant was ever cured or that his detention at the time of the lineup was made legal by authority of a magistrate. The police investigators testified that they abandoned their efforts to obtain a warrant when they heard that the appellant was arrested without warrant. There was no evidence that the appellant was taken before a magistrate, or that his detention at the time of the lineup was under the authority of a magistrate rather than whatever authority an officer might have to arrest without a warrant. We hold that the trial court erred in admitting State's Exhibit 4, the videotape recording of the lineup that followed the illegal arrest of the appellant. 7. Harm
We must consider the harm of the error in admitting the videotape recording of the lineup. An appellate court judges the harm of admitting evidence that was obtained in violation of a statute like Article 14.04 of the Code of Criminal Procedure by the standard of Rule of Appellate Procedure 44.2(b): "Any other [that is, other than constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Under that rule, an appellate court may not reverse for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Here, the erroneously admitted evidence was a videotape recording of a lineup. The other evidence that was admitted without a finding of error in this appeal included oral testimony about the lineup, testimony about the identification of the appellant at the lineup, and an in-court identification of the appellant by one of the witnesses who viewed the lineup. Considering this evidence, as well as the other properly admitted evidence of guilt and the other aspects of the trial, we hold that the erroneous admission of State's Exhibit 4 was harmless. Point of error one is overruled. B. Identification 1. Before Trial
In his third point of error, the appellant complains that "[t]he trial court erred in denying the appellant's motion to suppress identification by Cory Calloway in violation of the Fifth and Fourteenth Amendments of the United States Constitution." The fourth point, which complains of the same error, is different only in that it invokes Article 38.23 of the Code of Criminal Procedure and Article I, Sections 10 and 19 of the Texas Constitution. In both these points, the appellant complains that "the combination of seeing the appellant in a live lineup that contained dissimilar individuals, viewing a photospread of the appellant sometime during the investigation (State's Exhibit 2), then seeing that individual in court while wearing a hooded garment — without any other individuals to compare him to — created an [ sic] with respect to Calloway an impermissibly suggestive identification procedure that violated the appellant's rights." The appellant's brief presents points of error three and four together. He fails to distinguish between federal protections and those afforded by state law. Therefore, we will discuss the points together; we need not determine whether the state constitutional protections are more expansive than that afforded by the federal constitution. Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App. 1991). In reviewing whether an identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification, we look to the totality of circumstances surrounding the identification to determine if the procedure was unnecessarily suggestive. Webb v. State, 760 S.W.2d 263, 269 (Tex.Cr.App. 1988). An in-court identification that has been tainted by an impermissibly suggestive pretrial identification is inadmissible. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Cr.App. 1998). A two-step analysis is applied in determining whether an in-court identification has been tainted: (1) whether the out-of court identification procedure was impermissibly suggestive, and, if suggestive, (2) whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968). The appellant bears the burden of establishing that the pretrial identification procedure was impermissibly suggestive and that the in-court identification is unreliable. Delk v. State, 855 S.W.2d 700, 706 (Tex.Cr.App. 1993). The appellant contends that the identification was impermissibly suggestive based on the combination of three factors: (1) seeing the appellant in a live lineup with dissimilar individuals, (2) viewing a photospread of the appellant during the investigation, and (3) then seeing that individual in court wearing a hooded garment without other individuals for comparison. Though it is good practice that the individuals in a lineup be as similar as possible, a pretrial identification procedure is not impermissibly suggestive simply because the lineup members are not identical in appearance. Buxton v. State, 699 S.W.2d 212, 216 (Tex.Cr.App. 1985). The appellant argues that the lineup individuals had dissimilar facial hair and hair lengths. We hold, however, that these differences did not render the lineup impermissibly suggestive. The appellant also complains that "the repeated showing of the appellant's picture was suggestive." On February 18, 2000, Calloway viewed the lineup in which he made a strong tentative identification of the appellant, qualified only by the fact that he wished he could see the individuals in the lineup wearing hoods on their heads, as did the suspect on the night of the robberies and murders. Approximately one month later, Calloway viewed a photospread in which all the individuals appeared to be wearing hoods. Calloway positively identified the appellant. Because Calloway had previously identified the appellant, viewing another display was not impermissibly suggestive. Finally, the appellant claims the identification was unduly suggestive because Calloway saw the appellant wearing a hooded garment at trial and "there was no one else donning a similar garment." The appellant complains of Calloway's identification of the appellant during trial; however, Calloway had already identified the appellant, both in a pretrial lineup and during trial without a hood. Therefore, Calloway's in-court identification of the appellant while wearing a hood could not have affected Calloway's previous identification of the appellant. Furthermore, the appellant's points of error relate to his motion to suppress, a pretrial motion. The trial court could not have erred in denying the motion based on a fact that had not yet occurred — that the appellant would put on a hooded garment during trial. The appellant's points of error three and four are overruled. 2. During Trial
In his fifth point, the appellant complains that "the trial court abused its discretion in allowing the State to conduct an in-court demonstration that required the appellant to put on a hooded sweatshirt during the testimony of Cory Calloway." In particular, the appellant argues that the trial court erred in "forcing the appellant to put on the hooded garment in the absence of others similar to the appellant being required to don the same sort of garment." Absent a foundation for the demonstration, according to the appellant, the trial court should have excluded the evidence. It has been held proper during a trial to require the defendant to stand, put on a hat, remove his glasses or make a footprint — all for the purpose of identification. See Taylor v. State, 464 S.W.2d 410 (Tex.Cr.App. 1971). Point of error five is overruled. C. Charge
The sixth point of error in the appellant's brief is that "the trial court erred in failing to submit a jury instruction that Reginald Willis was an accomplice witness as a matter of law." The appellant claims that "the trial court merely instructed the jury that the question of whether Reginald was an accomplice [was] a fact question[,]" and that it should have "submitted an instruction that he was an accomplice as a matter of law." An accomplice witness is an individual who participated with the defendant before, during, or after the commission of the crime for which the defendant is on trial. McFarland v. State, 928 S.W.2d 482, 514, cert. denied, 519 U.S. 1119 (1997). The participation must involve some affirmative act committed by the witness to promote the commission of that offense. Id. In order to be an accomplice as a matter of law, the witness must be susceptible to prosecution for the offense with which the accused is charged. Id. Only when there exists no doubt, or when the evidence clearly shows, that a witness is an accomplice witness as a matter of law is the trial judge under a duty to so instruct the jury. Blake v. State, 971 S.W.2d 451, 455 (Tex.Cr.App. 1998). When there is a conflict in the evidence, or a doubt or a question as to whether a witness is an accomplice witness, it is proper to submit the question as a fact issue to the jury. Harris v. State, 738 S.W.2d 207, 216 (Tex.Cr.App. 1986). Here, Willis testified that the appellant told him that he had committed the robbery, stolen Lotto tickets, shot someone, robbed a man of his car, and then went to Willis's house with the stolen goods. Willis saw the appellant with a gun and heard the appellant say that he wanted to get rid of it. A witness is not an accomplice witness merely because he may have known of an offense and did not disclose it, or even if he concealed it. McFarland, 928 S.W.2d at 514. Willis took and sold some of the stolen items and cashed the stolen Lotto tickets; various items stolen from the car were recovered from Willis's apartment. However, complicity with an accused in the commission of one offense does not make that witness an accomplice in a different offense. Id. Although the testimony implicated Willis as possibly having some role after the robbery and murder, the evidence is insufficient to have placed the judge under a duty to instruct the jury that Willis was an accomplice to the murder as a matter of law. Point of error six is overruled. II. Punishment-stage Issues
The appellant's complaints include (A) two points about victim-impact evidence, and (B) three points about the mitigation special issue. A. Victim-impact Evidence
The seventh and eighth points of error in the appellant's brief complain that "the trial court abused its discretion in allowing victim-impact testimony from individuals not named as complainants in the indictment," specifically, the convenience-store customers Garvina Sadiki and Cory Calloway. The points differ only in that one cites the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and the other invokes Article I, Sections 3, 10, and 19 of the Texas Constitution. The brief argues the points jointly. When the State called the first of these witnesses, the appellant asked the trial court to rule on three motions that he had filed two months previously. He said that the motions had to do not only with the testimony of the two customers, but also with that of the victims' daughter. On appeal, the daughter's testimony is not included in these points. The court denied the motions. The customers testified briefly about the effect of the crime on their lives. Their combined testimony occupies only four pages of the reporter's record. It is a prerequisite to presenting a complaint on appeal that the record show that the complaint was made to the trial court. Tex.R.App.P. 33.1(a)(1). The appellant has identified, in his brief, the three motions by which he presented complaints to the trial court. They failed to preserve his points of error for our review. The first of the three motions asked the court to hold Article 37.071 of the Code of Criminal Procedure unconstitutional because it allowed the introduction and use of victim-impact evidence regarding the deceased victims and the impact the crime had on their family. The second motion was a "motion in limine" that asked the court to instruct the State and its witnesses not to refer to the "personal characteristics of the deceased or to the emotional impact of the death of the deceased on friends and family." These motions did not present the complaint that is now raised on appeal in points seven and eight, which has to do with evidence of the impact of the crime on persons other than the deceased victims' friends and family. The third motion "requests that the State be required to detail, in writing, exactly which witness will testify and the substance of the testimony regarding victim impact." It also "requests that the Court conduct a pretrial hearing to evaluate each witness's testimony and demeanor." Neither of these requests amounts to an objection to the customers' testimony. They request only a written summary of evidence and a hearing. The record also shows that, after the customers testified and before the victims' daughter was called to the stand, the appellant's counsel agreed that he was satisfied with the oral discussions he had with the prosecutor "without the need to insist on a written synopsis." When the court asked if he needed to take up anything about the content of the daughter's testimony, "since you've asked for a hearing," counsel said, "No, judge." Because no objection was voiced to the customers' testimony and no objections appeared in the motions the appellant asked the court to rule on prior to their testimony, the appellant did not provide the prerequisite to presenting his complaint. Points of error seven and eight are overruled. B. Mitigation Special Issue
In points of error nine, ten, and eleven, the appellant complains about the mitigation special issue at punishment. The ninth point of error in the appellant's brief is that "especially after the Mosley decision declaring victim evidence admissible to `rebut' mitigation, and also in light of the Supreme Court's decision in Apprendi v. New Jersey, the mitigation special issue at punishment is infirm as a matter of federal Eighth Amendment constitutional law because it omits a burden of proof." The tenth point of error is different only in that the appellant argues the mitigation issue is infirm because "it makes impossible any meaningful appellate review of the jury's determination." In point eleven, the appellant argues that "Art[icle] 44.251 . . . requiring appellate review of sufficiency of all capital punishment special issues, when interpreted in conjunction with Art[icle] 37.071, Sec[tion] 2(e) . . ., placing no burden of proof in the mitigation special issue, is facially unconstitutional, violating the Eight Amendment to the United States Constitution." We have previously rejected identical claims and decline to revisit these issues. See Blue v. Smith, 125 S.W.3d 491, 500-01 (Tex.Cr.App. 2003); Jackson v. State, 33 S.W.3d 828, 840-41 (Tex.Cr.App. 2000); Tong v. State, 25 S.W.3d 707, 715 (Tex.Cr.App. 2000). Points of error nine, ten, and eleven are overruled. We affirm the judgment of the trial court.