Opinion
No. 05-14-01061-CR
02-29-2016
KEVIN WAYNE DICKSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause No. F-1257075-K
OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Whitehill
This murder case arose when a drug dealer shot one of his customers in the middle of a street, with witnesses present. Before the victim died he identified his killer by saying, "Buck's brother shot me." A police investigation quickly led to appellant's arrest.
A jury convicted appellant Kevin Wayne Dickson of murdering Marcus Jackson and assessed punishment at life imprisonment. The trial court rendered judgment accordingly.
Appellant's four "points of error" argue:
Although rule of appellate procedure 38.1(f) contemplates that appellants designate their appellate complaints as "issues" or "points," appellant refers to his complaints as "points of error." We use that designation to clearly track his brief.
(i) the trial court erred by admitting extraneous-offense evidence that a State witness had received threats and suffered vandalism to his car,
(ii) the trial court erred by admitting into evidence a record of suspicious google searches retrieved from a cellphone taken from appellant upon his arrest,
(iii) the State during closing argument improperly referred to an extraneous offense by saying that drug dealers prey on drug addicts and that appellant did not care whether his drugs hurt or killed anyone, and
(iv) the State made an improper plea to satisfy the demands of the community and the victim's family by improperly urging the jury to think about how they would explain their verdict to others after the case was over.
For the reasons discussed below, we conclude that
(i) the evidence of threats and vandalism was admissible to explain the witness's hesitation to testify and was not excluded by Rule 404(b),
(ii) the cellphone google searches were sufficiently authenticated,
(iii) the State's arguments regarding appellant's drug dealer status were proper as common knowledge or as reasonable deductions from the evidence, and
(iv) the State's argument urging the jury to think about how they would explain their verdict to others was a proper plea for law enforcement.
Accordingly, we overrule appellant's points of error and affirm the judgment.
I. BACKGROUND
The Dallas police responded to a shooting call at about 1:59 a.m. on June 18, 2012. Officers were dispatched to the intersection of Audelia and Walnut Street in northeastern Dallas. They found Marcus Jackson lying in the middle of Audelia Road a few blocks south of the Walnut Street intersection. Jackson had multiple gunshot wounds, and he later died at the hospital.
Appellant was charged with Jackson's murder and pled not guilty. The jury found him guilty and assessed punishment at life imprisonment. Appellant timely appealed.
II. ANALYSIS
A. First Point of Error: Did the trial court err by admitting a witness's testimony that he had heard threats against himself and that his car had been tampered with?
Appellant argues that the trial court erred by permitting a witness to testify about threats against himself and vandalism to his car as inadmissible extraneous-offense evidence. We conclude, however, that the trial court did not abuse its discretion because (i) the evidence was admissible to explain the witness's hesitance to testify, and (ii) the evidence was not offered as character conformity evidence. We also conclude that the trial court did not abuse its discretion under Rule 403's balancing test.
1. Standard of Review and Applicable Law.
We review a trial court's ruling on the admissibility of extraneous-offense evidence under an abuse of discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). A trial court does not abuse its discretion if its decision is within the zone of reasonable disagreement. Id. And we will not disturb an evidentiary ruling if it is correct on any legal theory applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
As a general rule, all relevant evidence is admissible. See TEX. R. EVID. 402, 60 TEX. B.J. 1129 (1998, amended 2015). The general rule is qualified by Rule 404(b), which provides:
Judgment was rendered in this case in 2014. Accordingly, the 2015 amendments to the rules of evidence do not apply. See Texas Court of Criminal Appeals, Final Approval of Amendments to the Texas Rules of Evidence, Misc. Docket 15-001, reprinted in 78 TEX. B.J. 376 (2015) ("The amendments are effective April 1, 2015."). All citations to the rules of evidence in this opinion are to the pre-2015 version of the rules.
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .TEX. R. EVID. 404(b).
The rule's listed exceptions, however, are not exclusive or exhaustive. De La Paz, 279 S.W.3d at 343. Consequently, the rule excludes only evidence that is offered solely to prove bad character and conduct conforming to that bad character. Id. Thus, a ruling that admits extraneous-offense evidence is generally within the zone of reasonable disagreement if the extraneous transaction is relevant to a material issue other than propensity to commit the offense. Devoe, 354 S.W.3d at 469.
2. Pertinent Facts.
Appellant's argument concerns testimony by State's witness Robert Barlow, who testified that the victim, Marcus Jackson, was his best friend. Barlow was with Jackson on June 17, 2012. Barlow and Jackson saw appellant at around 7:00 p.m. Nothing happened then, although there was bad blood between Jackson and appellant.
Barlow left Jackson at a 7-Eleven store at around 12:30 or 1:00 a.m. on June 18, and he was not present when Jackson was shot a short time later.
Appellant's complaint first focuses on this part of Barlow's testimony during the State's direct examination:
Q. Did you see this man sitting over here that night, any time that night, that you were with Melo [Jackson]?Appellant objected "to this being extraneous and collateral," and the trial court held a hearing outside the jury's presence. During that hearing, Barlow confirmed that the threats were coming from "people on the streets" and not from appellant.
A. Briefly.
Q. Where was this?
A. (No response)
Q. Mr. Barlow, let me ask you a question. Do you—I know this is difficult for you. Explain to the jury why you're having a hard time answering the question? Just be honest with them.
A. It's been threats on my life. And I'm upset about it. I ain't scared, but I'm nervous because—
After the hearing, Barlow testified before the jury as follows:
Q. We just talked a minute ago about how you're having a hard time testifying here because you feel like you've got some threats out there on the street; is that right?
A. Yes, sir.
Q. And you're not in any way saying this has anything to do with the defendant in this case, are you?
A. No.
Q. That's what's going on out on the street and you're worried about protecting your back out there on the street?
A. Yes.
Q. And when you come in here and you testify, that creates a situation where people out there could talk, right?
A. Yeah, they get things kind of confused.
Q. Okay. Fair enough. Let's move on.
[Appellant's counsel]:Can I have a limited instruction to that?
The Court: Folks, I will instruct you that testimony as to what's going on in the streets is just for the purpose of this witness and you understanding his hesitance to answer questions, not for anything else.
Two days later, appellant called Barlow back to the stand. When the State then cross-examined Barlow, the following exchange occurred:
Q. After your testimony the other day, tell the jury what happened to your car.
[Appellant's counsel]: I would object to extraneous and collateral matters that are not for the jury. It's very prejudicial and harmful and we know what it is.
The Court: Overruled.
[Appellant's counsel]:Note my exception.
[A.] To this point, I haven't went and took it and had it put on a lifter, but somebody poked my oil gas pan under my Impala and oil was everywhere. And I've been afraid to jump in it. But somebody was tampering with my car. I've been getting phone calls, certain people on phones trying to listen, two or three people on the phone.
Appellant also challenges a discussion among counsel and the trial court about possible threats both by and against a different witness for the State, but this discussion occurred outside the jury's presence. Accordingly, we need not discuss it.
3. Application of the Law to the Facts.
We conclude that the evidence of the threats and vandalism against Barlow was not excluded by Rule 404(b), because that rule excludes evidence offered solely to prove a person's character to show action conforming to that character. TEX. R. EVID. 404(b). Here, the State did not offer the evidence of threats and vandalism for the purpose that Rule 404(b) forbids. See Peoples v. State, 874 S.W.2d 804, 809 (Tex. App.—Fort Worth 1994, pet. ref'd) (evidence of threats made without defendant's knowledge is not extraneous-offense evidence). Instead, the State offered the evidence to explain Barlow's hesitance to testify and thus as relevant to his credibility. This is a recognized basis for admitting witness-intimidation evidence. See, e.g., Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. [Panel Op.] 1983) (defendant's threats admissible to explain victim's delayed outcry); accord Garrett v. State, No. 05-13-00883-CR, 2015 WL 4751218, at *2 (Tex. App.—Dallas Aug. 12, 2015, pet. ref'd) (mem. op., not designated for publication); see also Antwine v. State, 572 S.W.2d 541, 543 (Tex. Crim. App. [Panel Op.] 1978) (threats against witness admissible to explain why she refused to testify against defendant at previous trial).
Other jurisdictions agree with this view of witness-intimidation evidence. See, e.g., United States v. Thompson, 359 F.3d 470, 476 (7th Cir. 2004) (evidence of threats is probative to explain witness's "courtroom demeanor indicating intimidation"); People v. Sanchez, 69 Cal. Rptr. 2d 16, 24 (Cal. Ct. App. 1997) ("Testimony a witness is fearful of retaliation . . . relates to that witness's credibility and is . . . admissible."); Lopez v. State, 716 So. 2d 301, 307 (Fla. Dist. Ct. App. 1998) ("[E]ven if the defendant is not implicated, '[t]he fact that a witness has been threatened with respect to his testimony may bear on his credibility regardless of who made the threat.'") (citation omitted); State v. McArthur, 730 N.W.2d 44, 52 (Minn. 2007) ("Evidence of witnesses' fears of testifying and of purported threats against witnesses both tend to be relevant to general witness credibility or to explain a witness's reluctance to testify or inconsistencies in a witness's story."). --------
We thus conclude that the trial court could reasonably conclude that the evidence of intimidating conduct against Barlow was offered for a permissible purpose.
Additionally, although appellant does not invoke Rule 403 by name, he argues that the witness-intimidation evidence was "extremely prejudicial." Because Rule 403's balancing test "is an inherent part of Rule 404(b)," Castaldo v. State, 78 S.W.3d 345, 350 (Tex. Crim. App. 2002), we review the trial court's ruling under this test as well.
The question is thus whether the trial court abused its discretion in concluding that the evidence's probative value was not substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. We may consider, among other factors, (1) the evidence's probative value, (2) the evidence's potential to impress the jury in an irrational but indelible way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim. App. 2005). Rule 403 justifies exclusion only if there is a clear disparity between the evidence's unfairly prejudicial effect and its probative value. See Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).
In this case, the trial court did not abuse its discretion by admitting the evidence, which was probative and necessary for the State to explain Barlow's hesitance to testify. It took little time to develop the testimony. And, since the State did not attempt to connect appellant to the threats and vandalism against Barlow, the trial court could reasonably conclude that the evidence's unfairly prejudicial effect was not great.
For the above reasons, we overrule appellant's first point of error.
B. Second Point of Error: Did the trial court err by admitting evidence of internet searches performed on a cellphone that was in appellant's possession when he was arrested?
Appellant argues that the trial court erred by admitting a report showing suspicious google searches performed on a cellphone in his possession when he was arrested because the report was not sufficiently authenticated. But, because the cellphone was found on appellant's person within hours of when the searches were run and contained other information indicating the cellphone was his, we conclude that the trial court did not abuse its discretion.
1. Standard of Review and Applicable Law.
The trial court's decision to admit evidence as sufficiently authenticated is reviewed for abuse of discretion and may not be reversed as long as it is within the zone of reasonable disagreement. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015).
The authentication requirement is satisfied by evidence which supports a finding that the matter in question is what its proponent claims. See TEX. R. EVID. 901(a). This is a liberal admissibility standard. Butler, 459 S.W.3d at 600. "Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances," can be used to authenticate evidence. See TEX. R. EVID. 901(b)(4). And the proponent need not eliminate all other possibilities inconsistent with authenticity. Jones v. State, 466 S.W.3d 252, 263 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd).
2. Pertinent Facts.
Appellant's argument concerns State's Exhibit 36, an excerpt from a report detailing a cellphone's contents. That report was admitted in the following fashion:
First, Detective Dwayne Thompson, the case's lead detective, interviewed appellant the afternoon of June 18, 2012, after appellant's arrest. He identified appellant's cellphone through the following testimony:
Q. You mentioned also some things about the defendant's phone. Did you actually get his phone from him?
A. Yes.
. . . .
Q. Let me show you State's Exhibit 100. Does this envelope contain the phone that the defendant had that day on June 18th when you talked to him?
A. This is his phone.
Later, Detective Randy Penn testified that, pursuant to a search warrant, he electronically searched that cellphone, which was admitted into evidence as State's Exhibit 100. The State then offered its Exhibit 36,a four-page excerpt from the report Penn generated from the cellphone. Appellant objected that "there's no specificity or any proof that anyone has personal knowledge of who made any of the entries in the record." The trial court overruled that objection and admitted the exhibit, which included a summary of the phone's contents that associated the email address "kevindickson78@gmail.com" with a calendar and 28 emails:
Image materials not available for display.
The exhibit's next page had three calendar entries under the following heading:
Image materials not available for display.
The first calendar entry showed the attendees as "kevindickson78@gmail.com kevindickson78@gmail.com." The other two entries showed the attendees as "kevindickson78@gmail.com Kevin Dickson."
The exhibit also showed that the phone was used to run several google searches between 9:00 and 10:00 a.m. on June 18, 2012. These searches included the following:
• walnut and audelia
• audelia and walnut shooting
• deaths in north dallas last night
• a man shot on audelia rd early morning
• a man shot on audelia rd early morning on june 17.
3. Application of the Law to the Facts.
Appellant argues that the State did not produce enough evidence to support a finding that appellant ran the internet searches retrieved from the cellphone. He contends that the State's only evidence in this regard was that the cellphone (i) was taken from appellant upon his arrest and (ii) contained an email address that could be tied to appellant.
We are not persuaded by appellant's argument. Thompson said that appellant was arrested by around 4:00 or 4:30 p.m. on the day of the shooting. He also testified without objection that the subject cellphone was taken from appellant and was appellant's phone.
Moreover, the report showed that the phone contained a calendar associated with the email address "kevindickson78@gmail.com" and contained emails associated with that address. And there was no evidence that the phone belonged to anyone else.
For the above reasons, we conclude that the evidence supports a reasonable inference that appellant used the phone to run the google searches and the trial court did not abuse its discretion by ruling that the cellphone's content evidence was adequately authenticated. See Jones, 466 S.W.3d at 261-63 (upholding admission of similar information taken from cellphone because the phone was in defendant's possession when he was arrested and contained information suggesting that it was his). Accordingly, we overrule appellant's second point of error.
C. Third Point of Error: Did the State improperly refer to an extraneous offense during closing argument in the punishment phase of the trial?
Appellant next argues that during closing argument the State improperly referred to extraneous offenses by stating that drug dealers prey on drug addicts and that appellant did not care whether the drugs he sold poisoned or killed everyone in the community. We conclude, however, that the State's arguments were permissible statements of common knowledge, reasonable deductions from the evidence, and permissible pleas for law enforcement.
1. Standard of Review and Applicable Law.
We review a trial court's ruling on an objection to closing argument for an abuse of discretion. Walker v. State, No. 05-14-00148-CR, 2015 WL 916074, at *2 (Tex. App.—Dallas Feb. 27, 2015, no pet.) (not designated for publication). A ruling is an abuse of discretion if it lies outside the zone within which reasonable people might disagree. Id.
There are four areas of proper jury argument: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answers to opposing counsel's argument, and (4) pleas for law enforcement. Id. The State, however, generally may not discuss evidence outside the record. See id. But statements of common knowledge are an exception to this general rule. See Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000).
2. The Argument.
The prosecutor made the following closing argument during the punishment phase:
The last time we let this man out and we cut him loose, he went back on the streets dealing drugs. You know, [defense counsel] wants to drag Marcus through the mud. He's not here to speak for himself. He did tell us who killed him. You know, think about this for a second. Who was selling him the drugs? You know, why is drug dealing so bad? Because of people like Marcus Jackson, because drug dealers like Kevin Dickson prey on those who are addicted to drugs. Kevin
Dickson didn't care one bit whether he poisoned or killed everybody in that community with the drugs he sold.(Emphasis added.) Appellant objected that the argument called for speculation and involved extraneous and collateral offenses. The trial court in response said, "Folks, what you hear is argument of counsel, it's not evidence. Overruled."
3. Application of the Law to the Facts.
Appellant concedes that there was evidence before the jury that he sold drugs. He argues nevertheless that the emphasized portion of the argument quoted above was improper because it urged the jury to speculate about other crimes he may have committed against his customers and to consider the existence of other victims he may have killed.
We are not persuaded. Appellant misperceives the State's argument. The State did not argue that appellant had actually killed or even harmed anyone besides Jackson. Rather, the State was making two points—that drug dealers in general prey on their customers' addictions, and that appellant in particular did not care whether the drugs he sold hurt or killed anyone. The first point can reasonably be considered a statement of common knowledge, and the second can reasonably be considered a deduction from the evidence. See Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005) (common sense to infer that a person intends the natural consequences of his acts); Vasquez v. State, No. 03-11-00545-CR, 2012 WL 3793889, at *2-3 (Tex. App.—Austin Aug. 29, 2012, pet. ref'd) (mem. op., not designated for publication) (argument that drug-dealing defendant "is preying on vulnerabilities of persons with real issues for a quick buck" a reasonable deduction from evidence and common knowledge).
Moreover, the trial court also could reasonably have concluded that the State's argument was a permissible plea for law enforcement. The State may "refer generally to the existence of other victims of crime in argument as a plea for law enforcement." Johnson v. State, No. 06-13-00073-CR, 2013 WL 4470179, at *4 (Tex. App.—Texarkana Aug. 20, 2013, no pet.) (mem. op., not designated for publication). The State may also point out the potential harms that could be caused by actions like the defendant's as part of a plea for law enforcement. See, e.g., Porter v. State, 601 S.W.2d 721, 723 (Tex. Crim. App. [Panel Op.] 1980) (argument that "people can be killed in armed robberies" was a plea for law enforcement although no one was killed in that case); Bobbitt v. State, No. 2-01-506-CR, 2003 WL 21197606, at *1-2 (Tex. App.—Fort Worth May 22, 2003, no pet.) (mem. op., not designated for publication) (argument that drunk driving can injure and kill innocent people not improper although there was no evidence defendant actually posed any danger to others at time of his arrest).
Accordingly, we overrule appellant's third point of error.
D. Fourth Point of Error: Did the State improperly make a plea to satisfy community demands and the victim's family during closing argument in the punishment phase?
Appellant next argues that during closing argument the State improperly urged the jury to satisfy the community's demands and the victim's family. We disagree because the State did not make such an argument and the State's actual argument was a proper plea for law enforcement.
1. Standard of Review and Applicable Law.
As previously stated, the standard of review for a trial court's ruling on an objection to closing argument is abuse of discretion. Walker, 2015 WL 916074, at *2. The four areas of proper jury argument are (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answers to opposing counsel's argument, and (4) pleas for law enforcement. Id.
The State may not argue that the jury should impose a particular punishment because "the people" want or expect such a punishment, since this argument injects new facts into evidence. Cortez v. State, 683 S.W.2d 419, 420-21 (Tex. Crim. App. 1984). But the State is permitted to remind jurors that their friends and neighbors may call on them to explain their verdict once the trial is over. See Bell v. State, 724 S.W.2d 780, 801 (Tex. Crim. App. 1986); Bradley v. State, No. 01-13-00133-CR, 2014 WL 768328, at *6 (Tex. App.—Houston [1st Dist.] Feb. 25, 2014, no pet.) (mem. op., not designated for publication). This kind of argument properly asks the jury to act as the community's voice and is a proper plea for law enforcement. Bradley, 2014 WL 768328, at *6; see also Cortez, 683 S.W.2d at 421.
2. The Argument.
The prosecutor made the following closing argument during the trial's punishment phase:
You know, when you walk out of here today the judge is going to release you from all these rules that you can't talk to each other and you can't talk to your friends and family about this. And I want you to just kind of take yourself out of the jury box for a second and think about this: When somebody comes and asks you, hey, what was the case about? You're going to say, well, we found a guy guilty of murder.
. . . .
We found the defendant guilty of murder. The evidence was overwhelming. The man he shot and killed identified him; Buck's brother, Kevin, shot me. Every piece of circumstantial evidence pointed squarely at the guy who did it. We did our duty and found him guilty. And then we found out he was on parole for aggravated robbery and murder. And before that, we made some efforts to rehabilitate him by putting him on probation for assault and burglary. And when you tell those people—when they ask you what the sentence is and you tell them it's a life sentence—
. . . .
When you assess a life sentence, people are going to say—
. . . .
When people ask you about that and you tell them you assessed a life sentence, they're going to—
. . . .
When people ask you about that and you tell them we assessed a life sentence, they are going to say, that sentence is exactly right, because you are speaking for the community today. In Dallas County, can you commit two murders and not get a life sentence? Think about that. He's shown you what he'll do if he gets out. You already know it.
. . . .
Folks, I'm going to ask you to deliberate on this, but you already know what to do. You already know what the right thing to do is. It's never easy to come back and sign your name to a sentence of life, but it absolutely should be—it should not
be that difficult in this case. You know what you have to do based on this evidence. Take into consideration everything you know here. Come back out and do justice for this family.(Emphasis added.) Appellant objected throughout the argument that the State was making an improper plea for law enforcement. The trial court, however, overruled the objections.
3. Application of the Law to the Facts.
Relying on Cortez and its antecedents, appellant argues that the emphasized portions of the argument quoted above improperly asked the jury to impose a life sentence because that is what the community wanted or expected. We are not persuaded.
The State's closing argument comes within Bell's holding that the State may properly ask the jury to consider what they will say when the case is over and their friends and neighbors ask them about the case. See 724 S.W.3d at 801. The State did not assert or imply that the community or the victim's family demanded or expected a specific outcome. The trial court could reasonably have concluded that the State's argument was a permissible plea for law enforcement. See id.
We overrule appellant's fourth point of error.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
141061F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F-1257075-K.
Opinion delivered by Justice Whitehill. Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 29, 2016.