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Barnes v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 4, 2005
Nos. 05-04-00116-CR, 05-04-00117-CR (Tex. App. Mar. 4, 2005)

Opinion

Nos. 05-04-00116-CR, 05-04-00117-CR

Opinion Filed March 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-53405-Ip and F02-53406-IP. Affirm.

Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.


OPINION


Appellant Monquas Barnes appeals his conviction for murder and aggravated assault. The jury assessed punishment at ninety-nine years' confinement for the murder offense and five years' confinement for the aggravated assault offense, recommending a suspended sentence and community supervision for the aggravated assault offense. Appellant raises the following two issues on appeal: (1) factual insufficiency of the evidence; and (2) error in admitting testimony during the punishment phase regarding Barnes's prior juvenile offenses. We affirm the trial court's judgment.

FACTUAL SUFFICIENCY

In his first issue, appellant contends that the evidence is factually insufficient to sustain his convictions for aggravated assault and murder because the convictions rest on inconsistent and contradictory testimony. In reviewing the factual sufficiency of the evidence, a reviewing court considers all the evidence without the prism of in the light most favorable to the prosecution to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if (1) the evidence, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) weighing the evidence both supporting and contrary to the verdict, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 485. The court must give deference to the fact finder's findings and set aside a verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Gay Allison testified that she had been a crack addict and obtained drugs in exchange for sex from appellant, whom she knew as "Showtime," as well as from Daroyel Talley. She also sold crack cocaine for Talley, who was the main dealer in the apartment complex in which they both lived. Appellant was at the "bottom of the chain" of drug dealers in the complex and did not get along with Talley. On July 21, 2002, Allison saw appellant and another man as she was walking to Talley's apartment to obtain crack cocaine to sell. Appellant looked at her strangely, giving her an "ill feeling." After buying drugs at Talley's apartment, she asked Talley to walk her back to her apartment because she felt uncomfortable. As soon as they got outside of Talley's apartment, Showtime shot her. She collapsed, but managed to crawl back inside the apartment. Once inside, she heard four other gunshots and then lost consciousness. When she regained consciousness, she heard police at the apartment door. She gained their attention by throwing a telephone and breaking a window. The police pushed the door down and rescued her. She told them that appellant shot her. Allison later identified appellant in a statement she gave at the hospital and in a photo lineup. Debra Harper testified that she was staying in Talley's apartment when the shooting occurred. She was familiar with appellant, whom she knew as "Showtime." She stated that Allison fell inside the apartment door after gunshots sounded and said, "I am shot, I am shot, it's Showtime, he did it, it's Showtime." Harper called the police. Harper stated that she had seen appellant with a gun, but not on the night of the shooting. Police officers John Larson, Bruce Brayant, and Leshai Juan Matson testified that they responded to the shooting. Brayant and Larson testified that they saw Talley's dead body on the ground at the scene of the shooting. All three testified that Allison identified the shooter as "Showtime." Larson stated that Allison did not appear delusional and was very definite in her identification of the shooter. Ben Carrasco, the private security officer at the apartment complex, testified that he went to the scene of the shooting and found Talley's dead body. He heard several witnesses state that Showtime had done it. Police Sergeant Richard Wilson testified that he was told that Showtime shot Allison and Talley. He interviewed Allison at the hospital and wrote an affidavit for her. She told him that Showtime was the shooter and identified appellant as Showtime from a photo lineup. Doctor Staci Turner, medical examiner for Dallas County, conducted the autopsy on Talley's body. Dr. Turner testified that Talley had eight gunshot wounds and that two of them "would have been potentially rapidly fatal." Appellant contends that because Allison was the sole witness of the shooting and because her testimony contained inconsistencies and falsehoods, the evidence was factually insufficient to prove that appellant was the shooter. He points out several inconsistencies in Allison's testimony. In the affidavit taken at the hospital, she stated that she saw appellant with the gun as she went to Talley's apartment. At trial she testified that her statement about the gun was incorrect and that she did not see him with a gun on the day of the shooting, but did on a previous occasion. Larson testified that Allison told him after the shooting that she went to Talley's apartment to smoke crack. But Allison testified at trial that she had never smoked crack at the apartment. Allison testified that Talley was the main supplier for drug dealers at the apartment complex. Harper testified that others sold drugs at the complex. But regardless of any inconsistent statements about the details of the offense, Allison consistently identified appellant as the shooter. Any discrepancies reflect on Allison's credibility, which is a matter singularly within the purview of the fact-finder. See Lewis v. State, 126 S.W.3d 572, 576 (Tex.App.-Texarkana 2004, no pet.). In reviewing factual sufficiency, our evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). After conducting a neutral review of all the evidence, we cannot say that the State's evidence identifying appellant as the shooter is so weak that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's first issue.

TESTIMONY ABOUT PRIOR JUVENILE OFFENSES

In his second issue, appellant contends that the trial court erred in admitting his mother's testimony about two juvenile offenses. During the punishment phase, the State introduced evidence about appellant's juvenile adjudications for possession of cocaine and for violation of probation without objection. The trial court held a hearing outside the presence of the jury to determine the admissibility of testimony by appellant's mother about his previous juvenile offenses of burglary and unauthorized use of a motor vehicle (UUMV). During the hearing, appellant's mother testified on direct that appellant had never been convicted of a felony as an adult. On cross, the State asked if appellant had been found guilty of burglary when he was twelve. She replied that he had been and that she thought he was placed on probation for the burglary. The State then asked if she was familiar with a UUMV case in 2001, and she replied that she was. On re-direct, she testified that she was in the hospital when appellant was charged with burglary and was unfamiliar with the result of that case. She also stated that she went to court with him on the UUMV charge, but was not there when they convicted him. On re-cross, the State presented her with a report indicating that she was in court with appellant on the burglary charges, and appellant's mother testified that she "probably was there." At the conclusion of the hearing, appellant objected to his mother's testimony about his juvenile offenses because she could not testify as to exactly what happened in each of the cases and because the State had no official records in those cases. The trial court overruled the objection, stating that appellant's mother "stated sufficient knowledge of the burglary and the fact that she [believed appellant] was placed on probation and then . . . got into more trouble and the UUMV. . . ." The court stated that if appellant chose to put his mother on to testify about his eligibility for probation, he would place his suitability for probation at issue. When the jury returned to the courtroom, appellant chose to have his mother testify. She said that appellant had no prior adult felonies, but that he had committed the burglary and UUMV offenses. The trial court gave the jury a limiting instruction stating that the jury could not consider extraneous offenses in assessing punishment if it did not find beyond a reasonable doubt that appellant committed those offenses. Appellant contends that the trial court erred in allowing the State to elicit this testimony from his mother because the State did not offer proof such that a jury could find beyond a reasonable doubt that he committed the offenses. Extraneous offenses at the punishment phase of trial must be proved beyond a reasonable doubt. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). The trial court has the responsibility to determine the threshold admissibility of extraneous offenses in the punishment phase. Id. To do so, it must first determine that the evidence is relevant and that the jury could find beyond a reasonable doubt that the appellant committed the extraneous offenses. Harrell v. State, 884 S.W.2d 154, 161 (Tex.Crim.App. 1994); Thompson v. State, 4 S.W.3d 884, 886 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). We review a trial court's determinations about the admissibility of extraneous offense evidence under an abuse of discretion standard. Mitchell, 931 S.W.2d at 953. The defense called appellant's mother to testify to support his eligibility for probation by testifying that he did not have any prior felony convictions as an adult. The trial court determined that by offering her testimony about his suitability for probation, appellant opened the door for the evidence about his juvenile offenses of burglary and UUMV. See Anderson v. State, 896 S.W.2d 578, 579 (Tex.App.-Fort Worth 1995, writ ref'd) (stating that by tendering evidence of suitability for probation, appellant in effect consented to the admission of specific acts of conduct to inform the jury's discretion in deciding what punishment to assess). We conclude that the trial court did not abuse its discretion by admitting the testimony of appellant's mother. But even if the trial court did abuse its discretion by admitting the testimony of appellant's mother regarding his prior juvenile adjudications, any error was harmless. The erroneous admission of evidence is not constitutional error. Roethel v. State, 80 S.W.3d 276, 281 (Tex.App.-Austin 2002, no pet.). We use the standard of rule of appellate procedure 44.2(b) to determine whether the error warrants reversal. Id. Rule 44.2(b) provides that any non-constitutional "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). An error affects a substantial right of the defendant when it has a substantial and injurious effect or influence in determining the jury's verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App. 2004) (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We review the entire record to determine harm under Rule 44.2(b). McGowen v. State, 25 S.W.3d 741, 746 (Tex.App.-Houston [14th Dist.] 2000, no pet.). If we have grave doubts about its effect on the outcome, or if we find that it had more than a slight influence, we must conclude that the error was such as to require a new trial. Id. We conclude that her testimony about appellant's prior juvenile offenses did not have more than a slight influence on the penalty the jury assessed in this case. Because two other prior juvenile convictions were admitted without objection before appellant's mother testified, the jury was already aware of the fact that appellant had juvenile convictions. During closing arguments, the State argued without objection that appellant committed his first felony when he was twelve and had been in the juvenile system all his life, but the State did not specifically mention the burglary or UUMV. Although the jury sentenced appellant to ninety-nine years for his murder conviction, it assessed punishment at only five years and recommended a suspended sentence for the aggravated assault offense, an offense punishable by between two and twenty year's imprisonment. We conclude that any error by the trial court in admitting the testimony of appellant's mother did not affect appellant's substantial rights. Accordingly, we overrule appellant's second point of error. CONCLUSION Having resolved all issues against appellant, we affirm the trial court's judgment.


Summaries of

Barnes v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 4, 2005
Nos. 05-04-00116-CR, 05-04-00117-CR (Tex. App. Mar. 4, 2005)
Case details for

Barnes v. State

Case Details

Full title:MONQUAS BARNES, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 4, 2005

Citations

Nos. 05-04-00116-CR, 05-04-00117-CR (Tex. App. Mar. 4, 2005)