Opinion
NUMBER 13-13-00701-CR
01-31-2018
LEROY KILLIAN ARISTA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez, and Contreras
Memorandum Opinion by Chief Justice Valdez
A jury found appellant Leroy Killian Arista guilty of capital murder, and the trial court sentenced him to mandatory life in prison without the possibility of parole. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West, Westlaw through 2017 1st C.S.). By nineteen issues, which we construe as seven, Arista contends that: (1) the evidence is legally insufficient to support his conviction for capital murder; (2) the trial court erred in denying his motion for new trial; (3) the trial court lacked jurisdiction to enter findings in support of its order denying his motion for new trial; (4) the trial court erred in admitting DNA evidence; (5) the trial court erred in admitting an investigator's testimony regarding the meaning of "hit a lick"; (6) the trial court erred in admitting a police officer's testimony regarding the blood-spattered walls of the crime scene; and (7) cumulative error caused reversible harm warranting a new trial. We affirm.
I. BACKGROUND
The following evidence was adduced at trial. Willis Kimmons's neighbor called the police after noticing that the garage and sliding doors to Kimmons's home were open. Officers entered Kimmons's home and discovered Kimmons, a gun collector and retired Border Patrol agent, dead in his bed. Kimmons died from numerous penetrating blows, which the pathologist gathered were inflicted by a crowbar or similar object. Officers found ammunition inside Kimmons's residence but many of the corresponding firearms appeared to be missing. The front door to the home had been damaged and a window on the door had been removed, leading officers to believe that unauthorized entry into the home had been made through the window.
Kimmons's neighbor told police that he believed that David Tarbutton was involved in Kimmons's murder because David was one of only a few people to whom Kimmons had shown his gun collection. David was known to authorities as "a thief and a burglar," and a "gang member." David was arrested, and he eventually pleaded guilty to Kimmons's murder. David is serving a sentence of life in prison without the possibility of parole for this offense.
At the time of his arrest, David told authorities that both he and Arista climbed over the gate of Kimmons's home and that Arista participated in Kimmons's murder. However, at Arista's trial, David testified that what he told authorities was a lie. Recanting his earlier statement to authorities, David testified that Arista unwittingly drove him to Kimmons's home on the pretense that he was going to "collect on some stuff" and that Arista waited inside the car while he burglarized and murdered Kimmons. David testified that Arista had no knowledge of and did not participate in Kimmons's murder.
Despite David's testimony, the State presented the following evidence to support its theory that Arista participated in Kimmons's murder:
• David initially told authorities that Arista participated in Kimmons's murder.
• David had a crowbar in his possession when Arista picked him up on the night of the murder.
• A jogger saw the half of Arista's car hidden behind a stone wall in an orange grove near Kimmons' home. Contrary to David's alibi testimony that Arista waited in his car, the jogger saw nobody inside the car.
• Found on the carport gate of Kimmons's residence was a shoeprint pattern that matched shoes recovered from Arista's bedroom.
• According to the testimony of a police officer who inspected the crime scene, the walls of Kimmons's bedroom were spattered with blood, except for two spots on either side of the bed, where two individuals may have been standing.
• Arista's DNA was found on a shirt recovered from Kimmons's residence.
• A border patrol gun box that belonged to Kimmons was found in Arista's car, along with a mask, a wig, and several pairs of gloves.
• Kimmons's gun sleeve was found at Arista's home.
• A t-shirt soaked in gasoline was found at Arista's home. A forensics scientist in the area of DNA analysis testified that she believed gasoline was capable of destroying DNA left on an item.
• The surveillance system in Arista's home had been disassembled and rendered inoperative by the time police officers searched Arista's home.
• Around the time of Kimmons's murder, Arista told his mother and a friend during a recorded telephone conversation that he would be "doing some more licks" and that he "beat the mother fucker's ass yesterday." An investigator testified that the phrase "hit a lick" means "to commit [a] home invasion."
At the close of all the evidence, the trial court charged the jury to consider whether Arista was criminally responsible as a party to capital murder. Specifically, the trial court charged the jury as follows:
If you find from the evidence beyond a reasonable doubt that [David] did then and there intentionally cause the death of [Kimmons] by striking him with a crow bar . . . and [David] was then and there in the course of committing or attempting to commit the offense of burglary of a habitation of [Kimmons] and that [Arista] knew of the intent of [David] to cause the death of [Kimmons] while in the course of committing or attempting to commit the offense of burglary of habitation, and [Arista] acted with intent to promote or assist the commission of the offense by [David] by encouraging, directing, or aiding [David] to commit [capital murder], then you will find [Arista], GUILTY of the offense of [capital murder].
After deliberating on the charge, the jury found Arista guilty of capital murder. The trial court imposed a mandatory sentence of life in prison without the possibility of parole. See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 1 (West, Westlaw through 2017 1st C.S). The trial court heard and denied Arista's motion for new trial. This appeal followed.
II. LEGAL SUFFICIENCY
By his first issue, Arista contends that the evidence is legally insufficient to support his conviction for capital murder.
A. Standard of Review
In conducting our legal sufficiency review, we must view "the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Gross v. State, 380 S.W.3d 181, 185 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). We "must give deference to 'the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 318-19). "Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt." Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013). Furthermore, "[e]ach fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (quoting Hooper, 214 S.W.3d at 13). Juries are permitted to draw reasonable inferences from the evidence, "but they are not permitted to draw conclusions based on speculation." Gross, 380 S.W.3d at 188. To conduct a proper legal sufficiency review, we do not view each piece of evidence in isolation; instead, we review the consistency of all the evidence, and the reasonable inferences that could be drawn from that evidence, to determine whether a criminal conviction is supported by the facts and evidence. Id. at 187.
B. Applicable Law
As relevant here, a person commits capital murder if he intentionally or knowingly causes the death of an individual in the course of committing or attempting to commit a burglary. TEX. PENAL CODE ANN. § 19.03(a)(2). A person commits burglary if, without the effective consent of the owner, the person enters the owner's habitation with intent to commit a felony, theft, or an assault. Id. § 30.02 (West, Westlaw through 2017 1st C.S).
Also relevant here is the law of parties. Id. § 7.02(a)(2) (West, Westlaw through 2017 1st C.S.). Under the law of parties, a person is criminally responsible for a capital murder committed by another person if, acting with the intent to promote or assist the commission of the capital murder, the person encourages, directs, or aids the other person to commit the crime. See id. However, "mere presence of a person at the scene of a crime, or even flight from the scene, without more, is insufficient to support a conviction as a party to the offense." Gross, 380 S.W.3d at 186.
C. Analysis
On appeal, Arista maintains that the jury had no choice but to believe the alibi defense he presented through David's testimony at trial. Specifically, Arista asserts there is no evidence that he knew David intended to burglarize Kimmons's home, much less any evidence that he intended for Kimmons to be murdered in the course of the burglary. We disagree. When the above evidence is viewed in the light most favorable to the jury's verdict, it permitted a rational jury to find that Arista's role on the night of the murder went beyond merely providing David a ride to Kimmons's home and waiting in the car or merely being present for Kimmons's murder. Instead, the evidence permitted the jury to find that he encouraged, directed, or aided David in the burglary of a habitation and murder of Kimmons while acting with the intent to promote or assist in the commission of those crimes. See TEX. PENAL CODE ANN. §§ 7.02(a)(2), 19.03(a)(2); see also Gross, 380 S.W.3d at 185. We therefore conclude that the evidence presented against Arista was sufficient to support his conviction for capital murder under the law of parties.
Nevertheless, Arista highlights several pieces of evidence, which he contends renders the evidence legally insufficient. Although a proper sufficiency review counsels against viewing each piece of evidence in isolation, see Gross, 380 S.W.3d at 188, we address Arista's complaints below.
1. Point of Entry
First, Arista contends that it was physically impossible for him to enter Kimmons's home because his body was "too wide" to fit through the window of the front door where investigators believed the assailants made entry. However, a police officer testified that the window, which measured eight inches wide and twenty-one inches long, was wide enough for a "small to medium" sized person to fit through. It was within the jury's province, as the fact finder, to infer that Arista could fit through the window. On the record before us, we cannot agree with Arista's contention that it was physically impossible for him to enter Kimmons's home through the window.
In any event, the jury was not required to find that Arista physically entered Kimmons's home through the window because the evidence shows that the sliding door to Kimmons's home was open. See TEX. PENAL CODE ANN. § 7.02(a)(2) (West, Westlaw through 2017 1st C.S.)
2. David's Alibi Testimony
Second, Arista contends that the jury was required to accept David's alibi testimony as true and acquit him of capital murder. We disagree. The jury made a credibility determination to believe David's inculpatory statements to authorities at the time of his arrest rather than his alibi testimony at trial. See Hooper, 214 S.W.3d at 13. Resolving this credibility issue was for the jury to decide as the fact finder. Id. Further, as the State points out, at the time of Arista's trial, David had already pleaded guilty to capital murder and was serving a sentence of life in prison without the possibility of parole. Given the fact that David received the maximum term of imprisonment allowable by law, his effort to absolve Arista cost him nothing. See Drew v. State, 743 S.W.2d 207, 228 (Tex. Crim. App. 1987) (observing that "[i]t is not unusual for one of two convicted accomplices to assume the entire fault and thus exculpate his codefendant"); see also United States v. Metz, 652 F.2d 478, 481 (5th Cir. 1981); United States v. Alejandro, 527 F.2d 423, 428 (5th Cir. 1976). Under these circumstances, the jury could have rejected David's trial testimony as lacking credibility—particularly when the State offered evidence to refute Arista's alibi defense that he stayed in the car.
3. Gaps on the Blood-Spattered Walls
Third, Arista contends that the officer who observed two gaps on the blood-spattered walls of Kimmons's bedroom misrepresented the crime scene. According to Arista, "the police moving the drapes [or curtains] during their investigation of the crime scene created [the gaps]." Arista asserts that "when [the officer] observed [the] wall, the curtains had been opened more, creating the artificial voids in blood spatter. These voids did not exist in the unadulterated crime scene." To support this theory, Arista references two photographs taken of the walls for comparison—State's Exhibits 52 and 53. According to Arista, the first photograph (State's Exhibit 52) "shows a minimal gap between the curtain and a wire running down the wall."
Image materials not available for display.
State's Exhibit No. 52
Arista asserts that "[t]he curtain, the gap and the rest of the wall clearly contain blood splatter." By comparison, Arista asserts that, "[v]iewing the second photo [State's Exhibit 53], the gap between the curtain and the wire running down the wall is significantly wider and extend[s] to the top of the wall."
Image materials not available for display.
State's Exhibit No. 53
However, other than juxtaposing State's Exhibits 52 and 53, Arista points to nothing in the record to support his position that the crime scene had been contaminated before the officer observed the gaps in the walls. Furthermore, the photos appear to have been taken at different angles. This would explain to a rational jury why the gap between the curtain and the wire running down the wall would appear wider than the gap depicted in State's Exhibit No. 52. We cannot accept Arista's contention that by juxtaposing State's Exhibits 52 and 53, no rational jury could have believed the officer's testimony that he observed gaps on the blood-spattered walls of the crime scene.
4. Arista's DNA on Shirt
Fourth, Arista contends that, although his DNA was found on a shirt recovered from Kimmons's residence, it did not necessarily mean that he left his DNA on the shirt at Kimmons's residence. According to Arista, his DNA could have been "touch" DNA. Citing two articles, Arista explains in his brief that
Arista references two articles: (1) Abstract, Forensic Science Laboratory, Garda HQ: The Transfer of Touch DNA From Hands to Glass, Fabric, and Wood (2011), http://www.ncbi.nlm.nih.gov/pubmed/21330229; and (2) How innocent man's DNA was found at killing scene, Henry K. Lee, SF Gate, Wednesday, June 26, 2013, (http://www.sfgate.com/crime/article/How-innocent-man-s-DNA-was-found-at-killing-scene-4624971.php).
[t]ouch DNA is found when skin cells are left behind by someone who has literally touched an object, but it is not probative of where those cells come from, as 'touch' DNA may be easily contaminated by simply being in another's presence, where your cells are transmitted from one donor to another, by something as simple as a handshake where the recipient leaves another's skin cells upon traveling by an object such as a shirt. The object could be fabric, glass, or wood.Arista surmises that the shirt recovered from Kimmons's residence may have been David's shirt. Arista further surmises that his DNA may have been left on David's shirt at some point when he drove David to Kimmons's residence. Arista's theory is certainly plausible. However, it was not the only plausible theory that could have explained how and when Arista left his DNA on the shirt. We conclude that jury did not have to accept Arista's theory as true but instead could have reasonably inferred that he participated in Kimmons's murder because, among other things, his DNA was left in the vicinity of the crime scene. See Jackson, 443 U.S. at 326; see also Clayton v. State, 235 S.W.3d 772, 779-80 (Tex. Crim. App. 2007).
5. Gasoline-Soaked Shirt
Fifth, Arista contends that the jury could not have reasonably inferred that he attempted to get rid of incriminating DNA based on evidence that a gasoline-soaked shirt was found at his residence. The record shows that when questioned about the effect of gasoline on DNA, the forensic scientist testified: "I would believe it would take off the DNA from said item." Based on this evidence, the jury was entitled to infer that Arista attempted to get rid of incriminating DNA using gasoline. See Hooper, 214 S.W.3d at 13. Nevertheless, Arista maintains that the jury could not draw a reasonable inference of guilt based on the gasoline-soaked shirt unless the forensic scientist testified with complete certainty that gasoline actually destroys DNA. However, we conclude that the witness's testimony sufficiently informed the jury of the effect of gasoline on DNA. Additionally, we observe that the reasonableness of the jury's inference did not turn on whether gasoline actually destroys DNA; instead, the issue was whether the gasoline-soaked shirt, coupled with the forensic scientist's testimony regarding the effect of gasoline on DNA, provided the jury a basis to find that Arista tried to destroy potentially incriminating evidence, which is indicative of guilt. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (observing that an attempt to conceal incriminating evidence is a circumstance indicative of guilt). In this sense, the gasoline on the shirt was probative of guilt not because of its actual effect on DNA, but instead because of its perceived effect on DNA. To that extent, we do not necessarily agree with Arista's contention that the gasoline-soaked shirt was probative only if the forensic scientist expressed complete certainty that gasoline destroys DNA.
6. Recorded Telephone Conversation
Sixth, Arista contends that the recorded telephone conversation with his mother—in which he referred to "beat[ing] the mother fucker's ass yesterday"—could not have been a reference to his participation in Kimmons's murder because the conversation took place before Kimmons's murder. According to Arista, the conversation had to have been about a different person he assaulted. However, Arista's contention that the telephone conversation predated Kimmons's murder hinged on the credibility of Arista's mother, who was the only witness to testify that the telephone conversation predated the murder. The jury heard evidence that Arista's mother pleaded guilty to tampering with evidence for her role in hiding firearms after Kimmons's murder. It was within the province of the jurors to believe or not believe Arista's mother regarding the timing of the conversation, and apparently the jurors did not. See Hooper, 214 S.W.3d at 13. Therefore, we do not agree that the jurors could not infer his participation in Kimmons's murder based on what he said during the telephone conservation.
7. Shoeprint Pattern on Carport Gate
Seventh, Arista contends that the shoeprint pattern etched on the carport gate of Kimmons's residence matched David's shoe, not Arista's shoe. However, the record supports the opposite contention—i.e., that the shoeprint on the carport gate matched the shoes recovered from Arista's bedroom.
8. Location of Car on Orange Grove
Eighth, Arista contends that the jury was required to believe he knew nothing about Kimmons's murder because he parked his car in a place that was visible to the jogger. According to Arista, "[i]t is not reasonable for anyone to believe that a person engaged in burglary and murder would innocently drive a friend to retrieve their own property and would park where the vehicle is visible. Since [he] was unaware of [David's] intentions, he had no need to hide the car." However, the jogger testified that half of the car was hidden behind a stone wall on an orange grove shown in State's Exhibit 166. The jogger also testified that the car "stood out" to him "[b]ecause there's never really a car there, so, like, it caught my attention." Contrary to Arista's contention, the jury could have reasonably inferred that Arista stationed his car in an area that was not completely visible to a passer-by.
9. Summary
We conclude, when viewing the evidence in the light most favorable to the jury's verdict, that a rational jury could have found that Arista, acting with the intent to promote or assist in the burglary of a habitation and murder of Kimmons, encouraged, directed, or aided David in the commission of the crime. TEX. PENAL CODE ANN. § 19.03(a)(2); id. § 7.02; Gross, 380 S.W.3d at 185. We overrule Arista's first issue.
III. MOTION FOR NEW TRIAL
By his second issue, Arista contends that the trial court erred in denying his motion for new trial.
A. Standard of Review
We review a trial judge's denial of a motion for new trial under an abuse of discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). "We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court's decision was arbitrary or unreasonable." Id. A trial judge abuses his discretion in denying a motion for new trial "when no reasonable view of the record could support his ruling." Id. We "view the evidence in the light most favorable to the trial judge's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party." Id. At a motion for new trial hearing, "the judge alone determines the credibility of the witnesses." Id. "Even if the testimony is not controverted or subject to cross-examination, the trial judge has discretion to disbelieve that testimony." Id.
B. Analysis
Arista raised two matters in his motion for new trial: (1) the jury improperly discredited David's alibi testimony using information not admitted into evidence at trial; and (2) some witnesses for the State were present during the trial in violation of the rule of sequestration. We address each ground separately below. 1. Outside Influence—Texas Rule of Evidence 606(b)
Arista contends that his motion for new trial raised a third issue—specifically, that jury used out-of-court information from a juror's spouse to convict Arista. However, Arista's motion did not timely raise this matter. See TEX. R. APP. 21.4; see also State v. Moore, 225 S.W.3d 556, 570 (Tex. Crim. App. 2007); Cueva v. State, 339 S.W.3d 839, 859 (Tex. App.—Corpus Christi 2011, pet. ref'd). Our review is therefore confined only to the matters set out above, which were timely raised.
"Texas Rule of Evidence 606(b) prohibits a juror from testifying about 'any matter or statement occurring during the jury's deliberations.'" McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012) (quoting TEX. R. EVID. 606(b)). The relevant exception to this rule is that a juror may testify about "whether any outside influence was improperly brought to bear upon any juror." Id. An outside influence is "something originating from a source outside of the jury room and other than from the jurors themselves." Id. at 154.
McQuarrie illustrates the applicability of this exception. In McQuarrie, the Texas Court of Criminal Appeals held that internet research conducted by a juror about a matter relevant to the trial constituted an outside influence, which allowed the trial court to inquire into whether jurors received such outside information and, if so, whether it had any impact on their guilty verdict. Id. at 155.
Relying on this exception, Arista asserts that information originating from a source outside the jury room—a newspaper article—tainted jury deliberation. Specifically, Arista alleges that the jurors discredited David's alibi testimony by relying on a newspaper article published prior to trial that portrayed him and David as members of the same gang. Arista further alleges that this outside information influenced jurors to such extent that they chose to discredit David's alibi testimony as being motivated by gang loyalty rather than a desire to tell the truth about Arista's participation.
This Court abated the appeal for an evidentiary hearing as to this allegation. Thereafter, the trial court heard the following testimony from five jurors to determine the extent, if any, to which a newspaper article concerning gang affiliation influenced jury deliberations:
• Juror One testified there was discussion about Arista and David possibly being gang members, but no newspaper articles were mentioned.After hearing this testimony, the trial court found, among other things, that Arista "presented no evidence establishing that any improper outside influence was brought to bear" upon the jurors, and further that "[Arista's argument] in support of his contention of improper outside influence is mere speculation."
• Juror Two was not asked about newspaper articles, and he could not recall whether there was any discussion about gang affiliation.
• Juror Three was not asked about newspaper articles, and she could not recall whether the topic of gang affiliation came up.
• Juror Four was not asked about newspaper articles, but she recalled that there was a discussion about gangs.
• Juror Five was not asked about newspaper articles, but she recalled a discussion about David lying for Arista based on gang affiliation.
We conclude that a reasonable view of the record supports the trial court's finding. As noted above, none of the jurors called to testify stated that newspaper articles—the alleged outside source—prompted any discussion about gang affiliation. Thus, to the extent that jurors discredited David's testimony as a form of gang loyalty, there is no evidence that an outside influence was brought to bear on that credibility determination, as the trial court found. Therefore, unlike in McQuarrie, the exception allowing inquiry into the jury's deliberative process does not apply to impeach the jury's verdict. See id. We hold that the trial court did not abuse its discretion in denying Arista's motion for new trial on the basis that no outside influence was brought to bear upon jurors under rule of evidence 606(b). See id. 2. The Rule of Sequestration—Texas Rule of Evidence 614
After we abated the appeal for an evidentiary hearing on the outside-influence issue, the United States Supreme Court decided Pena-Rodriguez v. Colorado. 137 S. Ct. 855 (2017). In that case, the Supreme Court held that, where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee. Id. at 869. As a sub-issue to his second issue, Arista contends that the trial court erred when it did not allow him to elicit testimony from jurors about racial prejudice and racial bias during deliberations under Pena-Rodriguez. However, the record shows that the trial court did allow Arista to question jurors about racial bias by overruling the State's objection to such inquiry. The record further shows that, when asked by Arista's counsel, juror Two testified that there was no discussion about race or about Arista being of Hispanic descent during jury deliberations. Contrary to Arista's contention on appeal, the record demonstrates that Arista was allowed to question jurors about possible racial animus and that none was shown.
Rule of evidence 614 ("the Rule") provides that, "[a]t a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony." TEX. R. EVID. 614. The Rule is intended to prevent corroboration, contradiction, and the influencing of witnesses." White v. State, 958 S.W.2d 460, 462 (Tex. App.—Waco 1997, no pet.).
The record shows that: (1) Arista invoked the Rule before the start of trial; (2) the trial court instructed all the witnesses to remain outside the courtroom until they were called to testify; and (3) two witnesses—Kimmons's neighbor and the jogger—remained in the courtroom in violation of the Rule. Based on this evidence, the trial court found that these witnesses violated the Rule. However, the trial court declined to grant Arista a new trial, concluding that neither witness was influenced by the testimony of any witness who testified before him at trial.
By his third issue, Arista contends that the trial court's finding regarding the violation of the Rule is a nullity because it was entered more than seventy-five days after the date of his sentence. See TEX. R. APP. P. 21. According to Arista, the trial court lacked jurisdiction to enter findings after the period of time in which the trial court must rule on a motion for new trial. However, we rejected this argument when the State made it in Cueva v. State several years ago. See 339 S.W.3d 839, 856 (Tex. App.—Corpus Christi 2011, pet. ref'd) (rejecting the State's argument that the trial court was required to enter findings within the same seventy-five-day period it had to rule on the motion for new trial). Nevertheless, Arista relies primarily on Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995). However, Green actually undermines Arista's contention. In Green, the Texas Court of Criminal Appeals recognized that a trial court's jurisdiction to enter findings on a ruling expires after the trial record has been submitted to the appellate court. Applying this rule, the Green court nullified the trial court's findings because they were entered nearly a year after the trial record had been submitted to the appellate court. Here, unlike in Green, the trial court's finding was entered before the trial record was submitted to this Court. Therefore, we cannot agree with Arista that the trial court's finding is a nullity under Green. See id.
Recognizing that a violation of the Rule occurred, we must now determine whether the violation calls for a new trial. Because a violation of the Rule is non-constitutional error, it warrants a new trial only if Arista's substantial rights were affected. See TEX. R. APP. P. 44.2(b); Russell v. State, 155 S.W.3d 176, 181 (Tex. Crim. App. 2005). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In assessing the harm flowing from a violation of the Rule, courts consider whether the witness was influenced in his testimony by the testimony he heard in the courtroom. Russell, 155 S.W.3d at 181. In making this determination, reviewing courts generally consider two questions:
(1) Did the Rule-breaking witness actually hear the testimony of the other witnesses?Cooks v. State, 844 S.W.2d 697, 733 (Tex. Crim. App. 1992), superseded on other grounds as stated in Bell v. State, 415 S.W.3d 278, 281 (Tex. Crim. App. 2013). If the answer to both questions is "yes," then a violation of the Rule most likely resulted in harm to the defendant. See Ladd v. State, 3 S.W.3d 547, 566 (Tex. Crim. App. 1999). We address the questions for each Rule-breaking witness below.
(2) Did the testimony of the Rule-breaking witness contradict the testimony of a witness he actually heard from the opposing side or corroborate the testimony of another witness he actually heard from the same side on an issue of fact bearing upon the issue of guilt or innocence?
i. Kimmons's Neighbor
As previously mentioned, Kimmons's neighbor alerted officers to David's possible involvement in the murder, which led to David's arrest. Kimmons's neighbor was also the first person to enter Kimmons's home after the crime occurred.
Arista failed to call Kimmons's neighbor to testify at the hearing on his motion for new trial, so there is no confirmation from the Rule-breaking witness himself regarding whether he actually heard other witnesses testify. Thus, the record in this case makes it difficult to definitively answer "yes" to the first question. Nevertheless, Arista argues that Kimmons's neighbor may have been influenced by the testimony he heard from police witnesses who inspected Kimmons's home because the neighbor testified to a fact that he allegedly did not include in his initial police statement but which the police testified to at trial—namely, that Kimmons's home telephone was unplugged. By making this argument, we understand Arista to be addressing the second question above—i.e., whether the Rule-breaking witness corroborated the testimony of a fellow State witness on an issue of fact bearing upon the issue of guilt or innocence. See id. To the extent Arista's argument addresses this second question, we observe that Arista has failed to explain how the fact issue concerning Kimmons's home telephone had any bearing on his guilt or innocence. See id. Having reviewed the record and considered Arista's argument, we observe no connection between Kimmons's telephone and Arista's innocence. Consequently, with respect to Kimmons's neighbor, we conclude that the Rule's violation did not have a substantial and injurious effect or influence on the jury's verdict. See King, 953 S.W.2d at 271.
ii. Jogger
As previously mentioned, the jogger testified that half of Arista's car was hidden behind a stone wall in an orange grove near Kimmons's home and that nobody was inside the car.
As with Kimmons's neighbor, Arista failed to call the jogger to testify at the hearing on his motion for new trial, so there is no confirmation from the Rule-breaking witness himself regarding whether he actually heard other witnesses testify. Thus, the record in this case makes it difficult to definitively answer "yes" to the first question. Nevertheless, Arista argues that the jogger may have been influenced in his testimony by the testimony of other witnesses. Specifically, Arista argues that the jogger may have testified that he saw Arista's vehicle in the orange grove because the State admitted a photo of Arista's vehicle while he sat in the courtroom and the jogger then modified his testimony to more accurately fit that depiction—not because he actually saw Arista's car in the orange grove on the night of the murder. However, even if the photo had such an influence on the jogger's testimony, Arista fails to explain how that testimony had any bearing on his guilt or innocence. See id. According to his own alibi defense, Arista parked his car in the orange grove and waited for David to return. Thus, regardless of whether the jogger saw Arista's car or saw a car that looked similar to Arista's car, it made no difference because Arista's alibi defense assumed that he drove David and parked in the orange grove. Consequently, with respect to the jogger, we again conclude that the Rule's violation did not have an injurious influence on the jury's verdict or affected Arista's substantial rights.
We recognize that the jogger also testified that the car was partially hidden behind a stone wall and that nobody was inside. These observations negatively impacted Arista's alibi defense. The reason is that evidence of a stealthily parked, empty car does not jibe with Arista's alibi that he unwittingly drove David to Kimmons's house and waited in the car. However, the jogger's testimony that he observed a stealthily parked, empty car could not have been influenced by what the jogger heard in the courtroom because, up to the time of the jogger's testimony, none of what the State presented to the jury concerned how the car was parked or who was inside. Furthermore, the jogger was not the only source to contradict Arista's alibi theory, as the evidence showed that:
• Arista's DNA was found on a shirt recovered from Kimmons's residence;Because Arista's alibi theory clashes with other evidence the jury heard, we are fairly assured that the jogger violating the Rule did not have a substantial and injurious effect or influence on the jury's verdict. See King, 953 S.W.2d at 271. Having reviewed the entire record, we conclude that any violation of the Rule in this case constitutes harmless error and therefore does not warrant a new trial. See id. We overrule Arista's second issue.
• A shoeprint pattern etched on the carport gate of Kimmons's residence matched shoes recovered from Arista's bedroom; and
• A telephone recording captured Arista stating that he would be "doing some more licks" and that he "beat the mother fucker's ass yesterday." An investigator testified that the term "hit a lick" means "to commit [a] home invasion."
IV. DNA EVIDENCE
By his fourth issue, Arista contends that the trial court erred in admitting Arista's DNA that appeared on a shirt recovered from Kimmons's residence. Specifically, Arista asserts that the DNA evidence was not "sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or in determining a fact in issue." However, as the State points out, Arista did not object to the DNA evidence on that basis at trial. We therefore conclude that this issue is not preserved for appellate review. See TEX. R. APP. P. 33.1(a)(1); Turner v. State, 805 S. W.2d 423, 431 (Tex. Crim. App. 1991) ("To preserve error for appellate review, the complaining party must make a timely, specific objection"). We overrule Arista's fourth issue.
In a sub-issue to his fourth issue, Arista claims that the State violated his right to due process by allegedly withholding certain evidentiary items requested in a pretrial discovery motion. According to Arista, the evidence included "documents from the D.P.S. Crime lab, contamination logs for the D.P.S. lab and/or employees that handled evidence, the DNA samples taken for an independent expert to evaluate, and the accreditation date for the D.P.S. lab and/or its employees." However, as the State points out, the record is devoid of any indication that Arista brought this matter to the trial court's attention. Additionally, Arista did not move that the case be continued to allow for production of such materials by the State. Moreover, Arista does not explain in his appellate brief how his ability to mount a defense was hindered by the non-production of these materials. Under these circumstances, we conclude that Arista's sub-issue is not preserved for our review. See TEX. R. APP. P. 33.1(a)(1); see also Schmude v. State, No. 13-12-00320-CR, 2014 WL 3926749, at *15 (Tex. App.—Corpus Christi May 29, 2014, pet. ref'd) (mem. op., not designated for publication) (concluding that appellant failed to preserve issue relating to the alleged non-production of items because he failed to adequately raise the issue in the trial court).
V. "HIT A LICK"
By his fifth issue, Arista contends that the trial court erred in admitting the investigator's testimony that the phrase "hit a lick" means "to commit [a] home invasion." Arista asserts that the investigator's testimony was inadmissible under rule of evidence 701 because it was not based on his personal knowledge and because such testimony required a kind of expertise that the investigator did not possess.
The record shows that Arista objected to the investigator's testimony primarily on the basis of hearsay, not on the basis that the investigator lacked personal knowledge or expertise. Consequently, Arista failed to preserve his Rule 701 complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1); see also Bunton v. State, 136 S.W.3d 355, 366 (Tex. App.—Austin 2004, pet. ref'd) (observing that a complaint on appeal must comport with the trial objection or nothing is presented for review). However, even if we were to construe Arista's trial objection as raising a Rule 701 issue, we would nevertheless find that the complaint lacks merit.
Rule 701 provides that lay opinion testimony is admissible if it is: "(a) rationally based on the witness's perception; and (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue." TEX. R. EVID. 701. In addressing the admissibility requirements of Rule 701, the Texas Court of Criminal Appeals has observed that:
A distinct line cannot be drawn between lay opinion and expert testimony because all perceptions are evaluated based on experiences. However, as a general rule, observations which do not require significant expertise to interpret and which are not based on a scientific theory can be admitted as lay opinions if the requirements of Rule 701 are met. This is true even when the witness has experience or training. Additionally, even events not normally encountered by most people in everyday life do not necessarily require the testimony of an expert. The personal experience and knowledge of a lay witness may establish that he or she is capable, without qualification as an expert, of expressing an opinion on a subject outside the realm of common knowledge. It is only when the fact-finder may not fully understand the evidence or be able to determine the fact in issue without the assistance of someone with specialized knowledge that a witness must be qualified as an expert.Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002) (citations omitted).
We will not disturb a trial court's evidentiary ruling absent an abuse of discretion. Id. at 538. The test for abuse of discretion is whether the ruling was arbitrary, unreasonable, or fell outside the zone of reasonable disagreement. Jones v. State, 466 S.W.3d 252, 261 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd).
Here, the investigator's testimony regarding the slang-meaning of the phrase "hit a lick" came from him personally listening to Arista's recorded telephone conversation and was based on his thirteen years of training and experience as a police officer. The investigator testified that he has held various positions within the police department throughout his years of experience, from patrol officer to commander of the criminal investigations division. The investigator further testified that he "oversees all criminal investigations pertaining to the City of Mission from narcotics to homicide to robbery to petty thefts." From this, the trial court could have reasonably determined that the investigator's testimony as to the meaning of the phrase "hit a lick" was rationally based on what he had perceived in his experience as a police officer and heard on the recording and that such testimony was helpful for the jury to determine whether Arista assisted David in committing capital murder. See TEX. R. EVID. 701. We therefore hold that the trial court did not abuse its discretion in admitting the investigator's testimony under Rule 701. See Austin v. State, 794 S.W.2d 408, 409-411 (Tex. App.—Austin 1990, pet. ref'd) (holding that trial court did not abuse its discretion under Rule 701 in admitting police officer's lay testimony that, based on his experience and observation, "Swedish Deep Muscle Rub" was a term for prostitution); Williams v. State, 760 S.W.2d 292, 296 (Tex. App.—Texarkana 1988, pet. ref'd) (holding that trial court did not abuse its discretion in admitting police officer's testimony about "the common use of vise grips to assist in stealing cars" under Rule 701 based on officer's personal observations and experience as a police officer). We overrule Arista's fifth issue.
VI. BLOOD SPATTER
By his sixth issue, Arista contends that the trial court erred under rule of evidence 701 in admitting a police officer's testimony that two individuals were likely inside Kimmons's bedroom when the murder occurred based on two gaps he observed on the blood-spattered walls. Arista argues that the officer's testimony was false and that it required a level of expertise in the area of blood-spatter that the police officer did not possess. However, the record shows that the officer's testimony was admitted without objection, and therefore, Arista did not preserve these complaints for appellate review. See TEX. R. APP. P. 33.1(a)(1). We overrule Arista's sixth issue.
In his appellate brief, Arista attempts to show that he preserved error by referencing an objection he made to the testimony of a different witness concerning a topic unrelated to blood spatter. We conclude that the objection referenced by Arista was not sufficient to preserve error.
VII. CUMULATIVE HARM
By his seventh issue, Arista contends that "cumulative harm from multiple constitutional, procedural, and evidentiary errors deprived [him] of a fair trial and requires reversal." The Texas Court of Criminal Appeals has recognized the conceivability that "a number of errors may be found harmful in their cumulative effect." Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). In other words, "[m]ultiple errors, determined harmless when considered separately, may combine to produce an effect that is harmful, requiring reversal." Haskett v. Butts, 83 S.W.3d 213, 221 (Tex. App.—Waco 2002, pet. denied). However, by definition, cumulative harm requires more than one error. See id. Here, the record before us demonstrates that only one error occurred during trial, the violation of the Rule, which we determined was harmless in part III(B)(2) of this opinion. We conclude that no cumulative harm is shown because the record demonstrates only one error. See id. We overrule Arista's seventh issue.
VIII. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 31st day of January, 2018.