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holding that a challenge was not clear and specific when the defendant's cryptic complaint about a juror was that he “ ‘came back with the same answer 1 and 5’ ”
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No. 12-05-00184-CR
Opinion delivered June 30, 2006. DO NOT PUBLISH.
Appeal from the Third Judicial District Court of Anderson County, Texas.
Panel consisted of WORTHEN, C.J. and GRIFFITH, J.
MEMORANDUM OPINION
Appellant Patrick Deon Davis was tried before a jury on two counts of engaging in organized criminal activity, as well as attempted murder, aggravated assault, and unlawful possession of a firearm by a felon. The multiple count indictment contained an enhancement paragraph alleging a prior felony conviction. Appellant was convicted by a jury on all but the two counts of engaging in organized criminal activity. The jury sentenced him to forty years of imprisonment for attempted murder, thirty years for aggravated assault, and ten years for unlawful possession of a firearm by a felon. Appellant raises four issues on appeal. We affirm.
BACKGROUND
Tim Owens went with some friends and Demond Owens, his aunt, to Sharon Fletcher's house because Demond thought her baby's father might be there. When they arrived, Owens got out with Demond. A number of men, including Appellant, encircled Owens and shot him. A number of shotgun pellets hit Owens, blinding him. Ten ejected spent shell casings, including a spent .20 gauge shotgun shell and several spent.380 shells, were found at the scene of the shooting. Appellant and the other men were arrested for the shooting. Appellant was indicted for engaging in organized criminal activity, attempted murder, aggravated assault, and unlawful possession of a firearm by a felon. Appellant was not convicted for engaging in organized criminal activity, but was convicted of all other charges. The jury sentenced him to forty years of imprisonment for attempted murder, thirty years for aggravated assault, and ten years for unlawful possession of a firearm by a felon. This appeal followed.WAIVER
In four issues on appeal, Appellant contends that (1) the trial court erred in failing to grant his motion for mistrial before jury selection; (2) the trial court erred in denying his motion to strike a potential juror; (3) the trial court erred in compelling the testimony of Sharon Davis; and (4) the trial court erred in not excluding the testimony of witnesses who violated "the Rule." Appellant cites no cases in support of any of his four issues. Instead, Appellant merely globally refers to the entire United States Constitution, Texas Constitution, and Texas Code of Criminal Procedure. Texas Rule of Appellate Procedure 38.1(h) states that an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(h). Where an appellant cites the reviewing court to no specific constitutional provision, statutory authority, or case law to support his claims, the reviewing court generally does not address the merits of the issues presented. See, e.g., Rhoades v. State , 934 S.W.2d 113, 119 (Tex.Crim.App. 1996); Vuong v. State , 830 S.W.2d 929, 940 (Tex.Crim.App. 1992). However, in the interest of justice, we will address Appellant's issues.FAILURE TO GRANT MISTRIAL
In his first issue, Appellant contends that the trial court erred in failing to grant a mistrial due to an alleged possibility that some members of the jury panel may have seen Appellant in custody. Specifically, Appellant stated that, "[g]iven the time frame as when he entered the court was still calling names . . . then one can conclude potential jurors saw Defendant exiting a marked car and entering the courthouse." The brief refers to two pages of the trial reporter's record containing Appellant's motion for mistrial, Appellant's counsel's speculative comment regarding Appellant's being brought "escorted by two officers in view of the jury[,]" and counsel's argument to the trial court "that that is [tantamount] to show the jury that my client was incarcerated and will prejudice this case." The judge disagreed with Appellant's counsel's description of events and stated on the record that Appellant was not brought into the courtroom during the seating of the jury. The judge stated further that when Appellant was brought in, he was not in handcuffs or restrained. Appellant's counsel called the court's bailiff to testify on his motion for mistrial. The bailiff testified he was outside the courthouse smoking a cigarette when the events complained of occurred and saw nothing. The State called the deputy who had been seating the jurors in the courtroom during the time in question. She testified that only one person walked in during the seating of the jurors, a "Mr. Elhers." The record does not show that "Mr. Elhers" was a juror or why he was in the courtroom. Although a handcuffed or chained defendant should not be intentionally brought into court in the presence of the jury, it is not unreasonable for state officers to handcuff a defendant who is being transported to and from the courtroom. Swanson v. State , 722 S.W.2d 158, 162-63 (Tex.App.-Houston [14th Dist.] 1986, pet. ref'd). It is extremely common for an accused to be inadvertently seen by jurors for short periods of time while he is under physical restraints. Burleson v. State , 646 S.W.2d 646, 646 (Tex.App.-Fort Worth 1983, no pet.). A brief and fortuitous encounter of the defendant in handcuffs by jurors is not inherently prejudicial and requires an affirmative showing of prejudice by the defendant. Id. ; see also Swanson , 722 S.W.2d at 162-63; Garcia v. State , 634 S.W.2d 888, 893 (Tex.App.-San Antonio 1982, no. pet.). In the present case, we have reviewed the portion of the reporter's record pertaining to the hearing on Appellant's motion for mistrial. The record is devoid of any evidence that any juror saw Appellant in handcuffs or even saw Appellant being escorted to the courtroom. Appellant's counsel's statements in court, which were immediately rebutted by the judge and both witnesses, provide the sole support for Appellant's first issue. Further, we note that in the absence of evidence supporting the allegation, Appellant has not made the requisite affirmative showing of prejudice. Appellant's first issue is overruled.MOTION TO STRIKE JUROR
In his second issue, Appellant contends that the trial court erred and denied Appellant "due process by not properly considering [his] motion to strike" a juror.To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all his peremptory challenges were exhausted; 4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury. . . . When the trial judge errs in overruling a challenge for cause against a venireperson, the defendant is harmed if he uses a peremptory strike to remove the veniereperson and thereafter suffers detriment from the loss of the strike.Feldman v. State , 71 S.W.3d 738, 744 (Tex.Crim.App. 2002). We have reviewed the record and note that Appellant failed to assert a clear and specific challenge for cause against any potential juror. Rather, Appellant's challenge to "Number 1" was that he "came back with the same answer 1 and 5." Appellant's cryptic statement does not explain the nature of the allegedly objectionable answer or why the answer was objectionable. Further, although Appellant states in his brief that he used a peremptory challenge on juror "Number 5," the record does not support this assertion. There is no evidence or even an allegation that Appellant exhausted all his peremptory challenges. Appellant did not request an additional strike. Finally, there is no evidence that an objectionable juror sat on the jury. Consequently, Appellant failed to preserve this issue. Appellant's second issue is overruled.
VIOLATION OF SPOUSAL PRIVILEGE
In his third issue, Appellant argues that the trial court erred in compelling the testimony of Sharon Davis in violation of her spousal privilege. Specifically, Appellant contends that Davis's testimony regarding her relationship to Appellant established the existence of their informal marriage as prescribed by Section 2.401 of the Family Code. Therefore, he contends, the trial court erred in compelling Davis's testimony. Burden of Proof and Standard of Review Preliminary questions concerning admissibility of evidence and the existence of a privilege are determined by the trial court. TEX. R. EVID. 104(a). The trial court is afforded broad discretion in the determination of such questions and will not be reversed absent an abuse of discretion. Kos v. State , 15 S.W.3d 633, 637 (Tex.App.-Dallas 2000, pet. ref'd). The spouse of the accused has a privilege not to be called as a witness for the state in a criminal trial. TEX. R. EVID. 504(b). However, the privilege does not apply to matters occurring prior to the marriage. TEX. R. EVID. 504(4)(B). The person seeking to exclude testimony under the spousal privilege has the burden to prove the existence of an informal marriage by a preponderance of the evidence. Colburn v. State , 966 S.W.2d 511, 514 (Tex.Crim.App. 1998). When the existence of informal marriage must be addressed as a preliminary issue, the trial court is the sole factfinder, and in that capacity, may believe or disbelieve all or any part of any witness's testimony. Durand v. State , 881 S.W.2d 569, 576 (Tex.App.-Houston [1st Dist.] 1994, jdgm't vacated on other grounds, 958 S.W.2d 395 (Tex.Crim.App. 1996). The evidence will be reviewed in the light most favorable to the trial court's ruling. Durand , 881 S.W.2d at 576. Applicable Law An informal marriage may be proved by evidence that a man and woman agreed to be married and that after the agreement, the man and woman lived together in this state as husband and wife and represented to others that they were married. TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon Supp. 2005). Texas courts will closely scrutinize a claim of common law marriage. Tompkins v. State , 774 S.W.2d 195, 208 (Tex.Crim.App. 1987). Testimony of a witness that merely constitutes a conclusion that an informal marriage exists is not sufficient, standing alone, to establish an informal marriage. Id. at 209. Moreover, before an informal marriage can be found to exist as a matter of law, there must be evidence, inter alia, that the parties held themselves out to the general public as husband and wife. Id. Analysis On March 7, 2005, the trial court held a hearing on Davis's spousal privilege claim. Davis testified that she had been living with Appellant since she was in the eighth grade and that they had a thirteen year old child. She testified that she had been saying they were husband and wife since she was nineteen years old. She also testified she had ceremonially married Appellant on February 16, 2005, nineteen days before the hearing on her spousal privilege claim. Davis testified that she filed her income tax return as "single, head of household" and that she and Appellant have never filed jointly as a married couple. Davis also testified that when she went to the office of Appellant's attorney to hire him, she represented that she was Appellant's wife. However, that was after the date of the offense. No one else testified regarding whether Appellant and Davis had an informal marriage. The court noted that Davis's comments regarding the informal marriage were inconsistent, ruled that an informal marriage had not been shown, and denied Appellant's claim of spousal privilege. Accordingly, the court compelled Davis to testify. As previously stated, the proponent of the spousal privilege has the burden to establish that an informal marriage existed prior to the date of the offense. See TEX. R. EVID. 504(b)(4)(A). Because no testimony or other evidence established that Appellant and Davis had represented before the date of the offense that they were husband and wife, the third element of an informal marriage was not established. See TEX. FAM. CODE ANN. § 2.401(a)(2). Therefore, the trial court did not err in compelling Davis's testimony. Appellant's third issue is overruled.VIOLATION OF THE "RULE"
In Appellant's fourth issue, he urges the trial court erred in not excluding the testimony of two witnesses who violated "the Rule." Appellant contends that two witnesses, Tim Owens and Rhonda Owens Majette, talked to each other after the Rule was invoked. Appellant further contends that "the witnesses testified adverse to Defendant [causing] harm" but does not elaborate on the testimony or how it harmed Appellant. Applicable Law The purpose of placing witnesses under the Rule is to prevent the testimony of one witness from influencing the testimony of another, consciously or not. Russell v. State , 155 S.W.3d 176, 179 (Tex.Crim.App. 2005). If a witness violates the Rule after it is invoked, the trial court may, in its discretion, either allow or disallow the witness's testimony. Bell v. State , 938 S.W.2d 35, 50 (Tex.Crim.App. 1996). The ruling of the trial court on an objection to a witness's testifying when the witness has remained in the courtroom after having been placed under the Rule may not be relied upon as a ground for reversal unless an abuse of discretion occurs. Valdez v. State , 776 S.W.2d 162, 170 (Tex.Crim.App. 1989). The ultimate test for determining when an abuse of discretion has occurred is whether harm to the defendant has resulted by allowing the violative testimony to be introduced. Archer v. State , 703 S.W.2d 664, 666 (Tex.Crim.App. 1986). In reviewing the issue, the appellate court must ask whether the witness who allegedly violated the Rule was one who became necessary due to something that happened during the trial or a witness who was sworn or listed as a trial witness and heard the testimony of another witness prior to his own testimony. Guerra v. State , 771 S.W.2d 453, 474-75 (Tex.Crim.App. 1988). If the witness falls within the latter category, the reviewing court's inquiry is then twofold:(1) Did the witness actually hear the testimony of another witness?; and
(2) Did the witness's testimony 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 of an issue of fact bearing upon the issue of guilt or innocence?Id. at 475. If both questions must be answered in the affirmative, consequential injury or prejudice will flow from the objectionable testimony. Id. Analysis At a hearing on Appellant's motion to exclude the testimony of Tim Owens and Rhonda Owens Majette, both Owens and Majette testified that they did not discuss trial testimony in the courthouse halls after being placed under the Rule. Takeshia Davis, Appellant's sister, testified that she heard Owens and Majette discussing the testimony of Sharon Fletcher, a state's witness, with Owens's cousin, Damien Owens, who had been in the courtroom when Fletcher testified. Appellant's lawyer also testified that he heard Majette and another woman discussing Fletcher's testimony. The trial court called all the witnesses into the courtroom, instructed them again about the requirements for witnesses under the Rule, and ordered the bailiffs to separate the witnesses on different floors of the courthouse. Later in the trial, Appellant's counsel again moved for a mistrial or to disallow the witnesses' testimony, because Tim Owens, Demond Owens, and "any of the rest of them that are sitting on the same bench" had been talking. Counsel also stated that someone who had been in the courtroom had come up and had spoken with them. However, there was no evidence of what the person in the courtroom talked about with them. The court again denied Appellant's motion for a mistrial. Tim Owens and Rhonda Owens Majette testified they did not discuss the case. The trial court evidently chose to believe Owens and Majette over Appellant's witnesses who testified about what they thought they had overheard. Further, Appellant's counsel said the discussion between Majette and the woman from the courtroom was that a woman at the scene had a pistol in her hand. At trial, Majette said the woman at the scene had a telephone in her hand. As there is conflicting evidence, and what little testimony adduced at the hearing was inconsistent with Majette's, we cannot say that the trial court abused its discretion in allowing the testimony of Tim Owens, the victim, and his sister, Rhonda Owens Majette. Appellant's fourth issue is overruled.
CONCLUSION
Having overruled Appellant's four issues, we affirm the judgment of the trial court. THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. THE STATE OF TEXAS MANDATE * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * TO THE 3RD DISTRICT COURT of ANDERSON COUNTY, GREETING: Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 30th day of June, 2006, the cause upon appeal to revise or reverse your judgment betweenPATRICK DEON DAVIS, Appellant NO. 12-05-00184-CR; Trial Court No. 27198 Opinion by Sam Griffith, Justice. THE STATE OF TEXAS, Appellee
was determined; and therein our said Court made its order in these words: "THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance." WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed. WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200____. CATHY S. LUSK, CLERKBy: ______________________ Deputy Clerk