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holding evidence of a "tussle" and "scuffle" did not justify the use of deadly force in defense
Summary of this case from Selectman v. StateOpinion
No. 05-18-00458-CR
06-19-2019
LONZELL HUNTER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F16-76537-P
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Carlyle
Opinion by Justice Carlyle
A jury found Lonzell Hunter guilty of capital murder. The State did not seek the death penalty so the trial court sentenced appellant to life imprisonment without parole. In ten issues, appellant challenges the evidentiary sufficiency, his sentence's constitutionality, and the trial court's evidentiary rulings, jury charge, impartiality, and denial of his motion for new trial. The State asserts in a cross-point that the judgment should be reformed to properly describe appellant's offense. We affirm the trial court's judgment as modified in this memorandum opinion. See TEX. R. APP. P. 47.4.
I. Background
In October 2016, twenty-year-old Vivian Teran pre-ordered several new iPhones she hoped to resell at a profit. She had previously resold other items using the cellphone app "OfferUp," through which she posted photographs of items for sale and "negotiated and communicated" with potential buyers, whom she would then meet with in person for "the exchange." For safety reasons, Vivian always met with buyers in public places and brought along another person, often her mother, Martha Teran.
Vivian testified that on October 30, 2016, she was at her mother's home when she received an OfferUp message from someone identified as James Conley, expressing interest in an iPhone she had posted. Communicating through OfferUp, he and Vivian agreed to meet at 6 p.m. in the Medieval Times parking lot. At her request, he gave her a cellphone number.
Vivian, Martha, and Vivian's older brother, Juan Rios, drove to the meeting place in Martha's car. Just after they arrived, a "dinged up" white Infiniti pulled up and parked several rows away from them. Vivian called the cellphone number she had been given and asked the man who answered to park closer to them. The Infiniti pulled into the spot directly next to Martha's car. The two cars were facing in opposite directions, with their passenger-side doors adjacent to each other. Vivian and Martha got out of Martha's car and stood in the area between the two cars' passenger doors. Juan stayed in the back seat. Appellant got out of the Infiniti's front passenger door and stood with Vivian and Martha between the cars. The window of the Infiniti's passenger-side back door rolled down and Vivian saw two other men inside, the driver and a back-seat passenger.
Vivian testified appellant asked her for the iPhone and she told him she needed to "check the money first." Appellant told her he wanted to "check some numbers on the back of the phone first." Vivian gave appellant the phone, which was still packaged in its original box with the wrapping intact. Appellant immediately handed the boxed phone through the open window to the Infiniti's back-seat passenger. Vivian testified that about ten or fifteen seconds later, "there was tussling" and "a lot of arguing" between her mother and the Infiniti's back-seat passenger through the open window because Martha "wanted the phone back." At that point, Vivian thought appellant and the men in the Infiniti were trying to steal the iPhone and her mother was in danger. Vivian opened the back passenger-side door of Martha's car to let Juan know their mother "was in trouble." Appellant was standing to Martha's left as Martha struggled with the back-seat passenger through the window. According to Vivian, immediately after Juan got out of the car, Martha was shot. Vivian testified that although she did not see who shot Martha, she believes appellant was the shooter because the shot came "from where [appellant] was standing" and neither of the other two men had gotten out of the Infiniti.
Immediately after the shooting, the Infiniti started moving forward. Appellant ran towards it, got in, and it sped away. Vivian called 9-1-1, telling the operator the Infiniti's license plate was "GX something." Martha died a short time later from a gunshot wound to the left side of her chest.
Vivian (1) gave police the OfferUp message she had received and the sender's cellphone number and (2) described the man she believed to be the shooter as having "short twists" and wearing red shorts and a white T-shirt. On cross-examination, she stated that during a photographic lineup several days after the shooting, she said "yes" to appellant's photograph, but then told police "I don't know" and "I don't remember."
Juan testified he is a former Marine and was attending college at the time of these events. He decided to accompany Vivian and his mother that evening because they said "hey, why don't you just go ahead and come with us since we've been having a good day." He brought his phone and his wallet, in which he routinely carried a folding "credit card knife" his mother gave him as a gift.
Juan stated that when Vivian and Martha got out of the car to meet with appellant, he remained in the back seat with the windows closed, messaging on his phone. He removed his knife from his wallet and set it next to him because he "had a bad feeling." Minutes later, Vivian opened the back door and told him their mother was "getting attacked." Juan "drop[ped] everything but the knife" and got out of the car. He saw Martha "break free" from the back-seat passenger and take "a few steps back." As he stepped around the open car door to "[g]o help my mom," he saw appellant was holding a gun. Juan was scared and "froze." A second later, he heard one gunshot and Martha fell face-first. Juan dropped the knife and held Martha as he tried to stop her bleeding. Juan testified he is "a hundred percent" certain appellant is the man who shot his mother.
On cross-examination, Juan testified that on the night of the shooting, he told police (1) as he got out of Martha's car and was "about to attack," appellant pulled out a gun; and (2) appellant was wearing a red or orange shirt and either jeans or sweat pants. Additionally, Juan testified (1) he didn't see the gun fire; (2) he held his knife "to my side" and "never had my hand up"; (3) he "never attacked them" and "never reached anybody"; (4) appellant "maybe" could have seen the knife in his hand; and (5) during a photographic lineup, he told police he was "75, 80 percent" certain appellant was the person he had seen holding the gun.
Forensic pathologist Dr. Beth Frost testified she performed an autopsy on Martha several days after the shooting. According to Frost, "The direction of the bullet, once it enters the chest, is a front to back direction, downward and left to right."
Dallas police crime scene investigator Madison Gaytan testified he collected evidence at the crime scene, including a knife with a two-and-one-half-inch folding blade found on the ground near Martha's car. On cross-examination, Gaytan testified (1) at the time he found the knife, the blade was "out" and "appeared to have possible blood" on it, and (2) he "swabbed" the knife blade and submitted the swabs to the police department's property room.
Dallas police detective Scott Sayers testified (1) he entered the cellphone number Vivian provided into "different search engines" and determined appellant was that number's owner and (2) by searching law enforcement databases, police found a damaged white Infiniti with a "partial plate of GX" registered to Javan Bush, who lived near appellant. Bush consented to gunshot residue testing and a vehicle search the day after the shooting. Also, Sayers obtained search warrants for records from OfferUp, Facebook, and Sprint that showed (1) an OfferUp account under the name James Conley Hunter was connected to appellant's Facebook account; (2) in a September 18, 2016 Facebook message, appellant stated "I'm try a hit for some Apple phones," which to Sayers "means a robbery"; and (3) appellant and Bush communicated by cellphone several times on the date of the shooting and both were near a cellphone tower in close proximity to the crime scene at 6 p.m.
Several days after the shooting, police obtained a search warrant for appellant's home. In appellant's bedroom, they found an empty gun case and three empty iPhone boxes. Sayers testified the empty iPhone boxes were relevant in the investigation because "in the Facebook, he had talked in that text about going—hitting for some IPhones."
On cross-examination, Sayers testified (1) as the lead detective, he decided which pieces of evidence to submit for laboratory testing; (2) he did not submit the knife blade swabs for testing; (3) he does not recall Gaytan telling him that he thought a substance on the knife blade could be blood; and (4) none of the three empty iPhone boxes found in appellant's home matched the iPhone posted for sale in this case.
Bush testified he was charged with capital murder based on these events. The State offered to reduce that charge to aggravated robbery in exchange for his truthful testimony in this case. He said he and appellant grew up in the same area and were acquainted. On the date of the shooting, both were at Hampton Terrace, where "people from our area hang out a lot." Bush "was high at the time." Appellant offered Bush money to drive him to a nearby restaurant parking lot and Bush agreed to do so. Appellant and "his partner," whom Bush did not know, got into Bush's white Infiniti. Appellant sat in the front passenger seat and appellant's partner sat in the back seat. Bush did not see a gun on appellant or his partner.
When they reached the restaurant parking lot described above, appellant spoke with a woman on his cellphone and she asked them to park next to her car. Appellant got out of the Infiniti and a woman got out of the other car. Bush remained in the Infiniti, "[j]ust listening to music, smoking a cigarette," and "not really paying attention." About thirty seconds later, Bush "notice[d] a bump on the car." He looked over and saw appellant and the woman struggling. Then, he heard a gunshot from outside of the car. Immediately after the gunshot, appellant got back into the Infiniti's front passenger seat holding "the gun" and a phone in a box. Bush testified he does not know where the gun came from and he does not recall the "type of gun" because "I'm not familiar with it. I'm not good with guns."
Appellant told Bush "hurry up, go, drive." Bush sped away and headed back to Hampton Terrace. As they drove, appellant said "she should have let it go." Bush "didn't ask too many questions" because he was "thinking about protecting my own self." Bush stated he did not see a knife and appellant said nothing about seeing a knife or "that he could have been attacked or stabbed." When they reached Hampton Terrace, appellant gave Bush $100 and told him "you gonna need to get rid of your car."
On cross-examination, Bush stated (1) "after the struggle was over," he saw a man get out of the other car's back seat; (2) he could not see whether that man had anything in his hand; and (3) he lied to police about numerous facts in his initial statement.
Following the jury's verdict, the trial judge assessed punishment, then stated to appellant,
I don't normally make a lot of comments, I've made this comment once in eight years and I'm going to say this to you because I think it's appropriate. If someone asked me today how to spell your name, I would say e-v-i-l. You deserve this life sentence that you have been given.
Additionally, at 10:55 p.m. on that same date, April 16, 2018, the trial judge posted a link to a news story about this case on her Facebook page with the following statement:
Prisons are made for exactly these type of criminals. Attorneys on both sides presented excellent lawyer skills (in fact the best). The jury applied the facts to the law and rendered a fair and just verdict. Thank you citizens of Dallas County. Thank you bailiffs for protecting all and keeping the peace. As a former school teacher I still wonder how young folks can end up being so evil. My heart goes out to the family of the woman who was slain right before their eyes. May she rest in peace.
Appellant filed (1) a timely May 16, 2018 motion for new trial and (2) a June 13, 2018 "Out-of-Time Supplemental Motion for New Trial" based on "a report obtained pursuant to post-trial discovery." A copy of the report was attached to the supplemental new trial motion. At a June 21, 2018 hearing on those motions, appellant's counsel argued (1) the report "shows that the Dallas Police Department laboratory submitted for analysis a gunshot residue evidence collection kit containing swabs taken from co-defendant Javon Bush's—the backs of his left hand and the back of his right hand and that those swabs had tested positive for gunshot residue"; (2) appellant seeks to "fully explore the significance of this report and determine whether the State timely turned it over as newly discovered evidence or whether . . . it falls under the ambit of Brady"; and (3) "[w]hat we're trying to get into first is whether we can get over the procedural hurdle" regarding the timing of the supplemental new trial motion. The prosecution stated it had no objection regarding the supplemental motion's timeliness, but intended "to contest the significance of the GSR report."
Appellant filed his June 13, 2018 "Out-of-Time Supplemental Motion for New Trial" and its attachments under seal. See TEX. CODE CRIM. PROC. art. 39.14. At the hearing on that motion, the trial court "unsealed" those filings at appellant's request. On appeal, the supplemental clerk's record containing those documents was filed under seal in this Court. In his appellate brief, appellant states he "incorporates by reference all of the arguments and affidavits contained within the motion for new trial and supplemental motion for new trial and attached exhibits through Exhibit G" and "moves that this Court unseal the remainder of the sealed record pertaining to the motion for new trial and all of the corresponding exhibits." We grant that motion.
At that point, defense counsel stated,
We have one other matter we'd like to address before we move forward and that is that our original motion for new trial, filed May 16, alleged that the trial Court may have been impartial as evidenced by the post-trial comments that Mr. Hunter is evil.
. . . .
Because we believe that the post-trial comments that Mr. Hunter is evil indicate that there may be an aversion or hostility towards our client, we would make a motion that the trial court recuse herself.
After discussion off the record, the trial court proceeded with a swearing-in of "everyone that is going to be a witness in the case on this hearing that will be reset," then adjourned the hearing. On June 26, 2018, the trial judge voluntarily recused herself. Two days later, this case was transferred to Dallas County Criminal District Court No. 7. The record does not show Criminal District Court No. 7 set a hearing on, heard, or signed any order regarding the motion for new trial.
The reporter's record of that hearing shows appellant offered the report into evidence, but the trial court made no ruling on its admissibility prior to adjournment.
II. Sufficiency of the evidence
When addressing an evidentiary sufficiency challenge, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) ("Our review of 'all of the evidence' includes evidence that was properly and improperly admitted."). "The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury." Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). Although juries may not speculate about the meaning of facts or evidence, they are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Zuniga, 551 S.W.3d at 733.
A person commits capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. TEX. PENAL CODE § 19.03(a)(2). A person commits murder if he intentionally or knowingly causes the death of an individual. See id. § 19.02(b)(1). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a); see also id. § 31.03 (person commits "theft" if he unlawfully appropriates property with intent to deprive owner of property).
We begin with appellant's fourth issue, in which he contends the evidence is legally insufficient to support his conviction. According to appellant, "[b]ecause no one at the scene of the offense could credibly identify that Appellant was at the scene of the offense, much less that he was the shooter, the evidence is legally insufficient to support Appellant's liability as the shooter." Appellant asserts (1) "no one saw the person identified as Appellant fire a shot"; (2) "[p]olice were unable to identify who the backseat passenger was or, therefore, exclude him as the shooter"; (3) "no one could agree on what Appellant was wearing that night"; and (4) "Bush should have been inculpated or, at a minimum, his testimony impeached because of the gun residue later recovered from his hands."
The evidence shows (1) in a September 18, 2016 Facebook message, appellant stated "I'm try a hit for some Apple phones"; (2) at the scene, appellant was standing to Martha's left as she broke free from the struggle with the Infiniti's back-seat passenger and stepped back; (3) Juan saw appellant holding a gun, heard a gunshot, and saw his mother fall to the ground; (4) Martha was shot in the left side of her chest; (5) Juan was "a hundred percent" certain appellant was the shooter; (6) immediately after the gunshot, appellant got back into the Infiniti with a gun and told Bush to "hurry up" and drive; and (7) appellant stated to Bush "she should have let it go." Viewing all the evidence admitted at trial in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of capital murder beyond a reasonable doubt. See Zuniga, 551 S.W.3d at 732; Balderas, 517 S.W.3d at 766; see also Queeman, 520 S.W.3d at 622.
III. Submission of defensive issues
"The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense." PENAL § 2.03(c). The trial court must give a requested instruction on every defensive issue raised by the evidence regardless of the source, strength, or credibility of that evidence. Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013). Even a minimum quantity of evidence is sufficient to raise a defense as long as the evidence would support a rational jury finding as to the defense. Id. "Whether a defense is supported by the evidence is a sufficiency question reviewable on appeal as a question of law." Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007). When reviewing a trial court's decision denying a request for a defensive issue instruction, we view the evidence in the light most favorable to the defendant's requested submission. Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017).
A person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person's use or attempted use of unlawful force. PENAL § 9.31. Deadly force is justified if a person would be justified in using force under section 9.31 and he reasonably believes deadly force is immediately necessary to protect himself against another's use or attempted use of deadly force. Id. § 9.32. A person is justified in using deadly force to protect a third person if (1) he would have been justified in using deadly force to protect himself against the unlawful deadly force "he reasonably believes to be threatening the third person he seeks to protect," and (2) he "reasonably believes his intervention is immediately necessary to protect the third person." Id. § 9.33. "Reasonable belief is defined as "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Id. § 1.07(a)(42).
In his first and second issues, appellant contends the trial court erred by refusing to submit jury instructions he requested on the defensive issues of self-defense and defense of others. We address these two issues together.
Appellant argues the evidence at trial was "consistent with a narrative that included self-defense or defense of others" because
[Martha] initiated a scuffle with the backseat passenger of the buyers' vehicle who was, at the time, attempting to verify that the phone was what it purported to be; when the scuffle escalated, [Juan] exited her vehicle with an open knife, intending to attack the buyers and protect his mother; and one of the buyers drew and fired a gun in self-defense or defense of someone in his party, shooting the mother instead of the son.Also, appellant asserts "[t]here was blood recovered from Juan's knife blade that was swabbed but never tested."
The uncontroverted evidence showed (1) the knife's blade was less than three inches long and (2) Juan never raised the knife, never attacked or reached appellant or the Infiniti's occupants, and "froze" when he stepped around the car door and saw the gun. Viewing the evidence in the light most favorable to the requested submission, we conclude an ordinary and prudent person in appellant's circumstances could not have reasonably believed deadly force was immediately necessary to protect himself against another's use or attempted use of deadly force, or that deadly force was immediately necessary to protect a third person. Therefore, the trial court did not err by denying appellant's request to charge the jury on self-defense and defense of others.
IV. Judicial bias
Due process requires a neutral and detached hearing body or officer. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Absent a clear showing of bias, a trial court's actions will be presumed to have been correct. Id. To reverse a judgment based on improper comments or conduct by the judge, we must find (1) judicial impropriety occurred and (2) prejudice probably resulted. Barfield v. State, 464 S.W.3d 67, 81 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). Our review encompasses the entire record. Id. Remarks by the judge during trial that are critical or disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a challenge for bias unless they reveal an opinion derived from an extrajudicial source. Id. When no extrajudicial source is alleged, such remarks demonstrate bias only if they reveal such a high degree of favoritism or antagonism as to have made fair judgment impossible. Id.
In his third issue, appellant contends his due process right to a neutral judge was violated because the trial judge was biased against him as shown by (1) her comments after sentencing and (2) her recusal during the motion-for-new-trial proceedings. Appellant asserts he was harmed because the trial judge's bias affected her impartiality in deciding "numerous issues," particularly his request for jury instructions on self-defense and defense of others.
The trial judge's complained-of comments were made after appellant's conviction and sentencing and did not show any extrajudicial source. Further, we concluded above that the trial court did not err by denying appellant's request for defensive-issue jury instructions. Appellant identifies no other harm. We conclude the record does not demonstrate judicial bias or prejudice. See Brumit, 206 S.W.3d at 645; Barfield, 464 S.W.3d at 81.
V. Denial of motion to suppress electronic evidence
We review a trial court's denial of a motion to suppress under a bifurcated standard of review. State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017); Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial court's factual findings for abuse of discretion and review the trial court's application of the law to the facts de novo. Turrubiate, 399 S.W.3d at 150. We uphold the trial court's ruling if supported by the record and correct under any theory of law applicable to the case, even if the reason provided by the trial court is wrong. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility and may choose to believe or disbelieve all or any part of the witnesses' testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).
No search warrant shall issue for any purpose in Texas unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause exists for its issuance. TEX. CODE CRIM. PROC. art. 18.01(b). A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. Id. Similarly, the Fourth Amendment provides "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Evidence seized in violation of the state or federal constitutions or state or federal law shall not be admitted against an accused in a criminal trial. CRIM. PROC. art. 38.23(a).
"[T]he failure to sign the warrant affidavit does not invalidate the warrant if other evidence proves that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate." Clay v. State, 391 S.W.3d 94, 98 (Tex. Crim. App. 2013); Smith v. State, 207 S.W.3d 787, 790 (Tex. Crim. App. 2006). "Probable cause exists if, under the totality of the circumstances, there is fair probability that contraband or evidence of a crime will be found at a specified location." State v. Cuong Phu Le, 463 S.W.3d 872, 878 (Tex. Crim. App. 2015). "It is a flexible, non-demanding standard." Id.
When courts interpret affidavits and search warrants they "must do so in a common sense and realistic fashion and avoid hypertechnical analysis." Faulkner v. State, 537 S.W.2d 742, 744 (Tex. Crim. App. 1976) (citing United States v. Ventresca, 380 U.S. 102 (1965)); see also State v. Elrod, 538 S.W.3d 551, 556 (Tex. Crim. App. 2017) (magistrate may use logic and common sense to make inferences based on facts in affidavit). A magistrate's decision to issue a search warrant is subject to a deferential standard of review, even in close cases. Elrod, 538 S.W.3d at 556. We will therefore uphold a magistrate's decision to issue a search warrant "so long as he or she has a substantial basis for concluding" that probable cause exists. Id. at 557.
In his sixth and seventh issues, appellant challenges the admissibility of the Facebook, OfferUp, and Sprint records described above. According to appellant, the trial court erred by denying his pretrial motion to suppress "any evidence emanating from any electronic customer data" because the search warrant affidavits pertaining to that electronic data were defective. We address these two issues in turn.
Appellant's sixth issue asserts the State improperly obtained the Facebook, OfferUp, and Sprint records because "[n]one of the warrants states a nexus between the electronic customer data sought and probable cause that it constitutes evidence of that offense or evidence that a particular person committed that offense." We disagree. In the Facebook search warrant affidavit, Sayers (1) described how appellant used his phone number to arrange the meeting where he robbed and murdered Martha; (2) explained Vivian gave appellant's phone number to police and they discovered appellant's Facebook account through that phone number; and (3) stated that the requested records might contain critical information indicating that the account holder had committed capital murder. In the OfferUp search warrant affidavit, Sayers (1) explained how appellant used his OfferUp account to set up the meeting for the purported purchase of the phone, then robbed and fatally shot Martha; (2) described how Vivian helped the detectives link appellant to the OfferUp account that was used to set up the meeting; and (3) stated that appellant's OfferUp records might "indicate that the suspect communicated and establishing that he committed this offense." In the Sprint search warrant affidavit, Sayers (1) described how appellant had used a specific cellphone number to arrange the meeting at which Martha was robbed and murdered, and (2) explained how police obtained that phone number. We conclude the trial court did not err by concluding the affidavits satisfied evidentiary search warrant requirements. See id. at 556 (magistrate's decision to issue search warrant is subject to deferential standard of review, even in close cases); see also Cuong Phu Le, 463 S.W.3d at 878.
Although appellant asserts multiple constitutional and statutory violations in his sixth issue, his appellate argument addresses only the Fourth Amendment and code of criminal procedure article 18.21. We confine our analysis accordingly. See Emack v. State, 354 S.W.3d 828, 837 (Tex. App.—Austin 2011, no pet.) (declining to extend analysis beyond bases argued by appellant). The Texas Court of Criminal Appeals has concluded suppression is not an available remedy under article 18.21 unless the search warrant's issuance also violated state or federal constitutional provisions. Sims v. State, 569 S.W.3d 634, 637-38 (Tex. Crim. App. 2019); see CRIM. PROC. art. 18.21 § 5A(c) (search warrant for electronic customer data may not be issued unless sworn affidavit sets forth "sufficient and substantial facts to establish probable cause that "a specific offense has been committed" and data sought "constitutes evidence of that offense or evidence that a particular person committed that offense"), repealed by Acts 2017, 85th Leg., ch. 1058 (H.B. 2931), § 5.01(2), eff. Jan. 1, 2019.
In his seventh issue, appellant contends the State improperly obtained the Facebook, OfferUp, and Sprint records "without a signed affidavit for probable cause." Although the affidavits in question were not signed by Sayers, each contained a signed statement of Dallas County District Court Judge Brandon Birmingham that the affidavit was "subscribed and sworn to" before him by the affiant. Also, Sayers testified at trial that he (1) swore to a probable cause affidavit for "every warrant associated with this case" and (2) "specifically" recalled raising his right hand and swearing to the truth of those records before Judge Birmingham. We conclude the trial court did not err by denying appellant's motion to suppress on this ground. See Clay, 391 S.W.3d at 98; see also Maxwell, 73 S.W.3d at 281.
Although appellant asserts multiple constitutional and statutory violations in his seventh issue, his appellate argument addresses only the Fourth Amendment and article 18.01. We confine our analysis accordingly. See Emack, 354 S.W.3d at 837.
In addition to his complaints described above regarding the Facebook, OfferUp, and Sprint search warrant affidavits, appellant complains in his seventh issue that there was no signed probable cause affidavit for "buccal swab records that the State obtained." The record does not show any evidence pertaining to appellant's buccal swab was offered or admitted at trial. Moreover, for the same reasons stated above, the absence of Sayers's signature on the buccal swab search warrant affidavit did not render that search warrant defective.
VI. Extraneous offense evidence
We review the trial court's decision to admit or exclude evidence for an abuse of discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). We will affirm the trial court's evidentiary ruling if it is correct under any applicable theory of law and is reasonably supported by the record. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).
The erroneous admission of evidence is non-constitutional error. Gonzalez, 544 S.W.3d at 373. Non-constitutional errors are harmful, and thus require reversal, only if they affect an appellant's substantial rights. Id. (citing TEX. R. APP. P. 44.2(b)). Error in the admission of evidence may be rendered harmless when substantially the same evidence is admitted elsewhere without objection. See Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998); see also Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting any error was harmless in light of "very similar" evidence admitted without objection); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) (improper admission of character testimony was harmless because it established "substantially the same evidence" as other properly admitted testimony).
To preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely and specific request, objection, or motion. See TEX. R. APP. P. 33.1; Haley v. State, 173 S.W.3d 510, 516-17 (Tex. Crim. App. 2005). The requirement of a timely trial-level complaint is satisfied "if the party makes the complaint as soon as the grounds for it become apparent[.]" Lackey v. State, 364 S.W.3d 837, 843 (Tex. Crim. App. 2012); see Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) ("We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. This is true even though the error may concern a constitutional right of the defendant.").
In his fifth issue, appellant contends, "The trial court erroneously admitted references to extraneous offenses, specifically three iPhone boxes that Dallas Police recovered from Appellant's bedroom in conjunction with a [Facebook] message about hitting for iPhones in violation of Appellant's rights to due process and due course of law. The references were irrelevant and unduly prejudicial." According to appellant, "the jury was unduly prejudiced by the admission of the iPhone boxes and text message, the combination of which suggested that Appellant was criminally disposed toward robbery."
Appellant did not assert constitutional objections to this evidence at trial. Therefore, his constitutional complaints in his fifth issue present nothing for this Court's review. See Clark v. State, 365 S.W.3d 333, 336-37, 340 (Tex. Crim. App. 2012).
Appellant's objection to Sayers's initial testimony describing the Facebook "message about hitting for iPhones" was based solely on the search warrant affidavit defects appellant alleged in his pretrial motion to suppress. We concluded above that the trial court properly denied that motion to suppress.
Later during Sayers's testimony, the iPhone boxes were admitted into evidence without objection and Sayers stated as follows:
A. . . . So [in appellant's bedroom] we found these empty IPhone boxes, which has serial numbers on them.At that point, appellant's counsel objected to "the introduction of extraneous offenses." The State argued (1) "[w]hat Det. Sayers was just asked is already in evidence, the fact that he hit for Iphones," and (2) the iPhone boxes "were admitted without objection." When trial resumed the following day, appellant stated he was objecting to the admission of "the boxes and even the initial text messages" and asking the trial court to "instruct the jury to disregard Sayers most recent testimony regarding the Iphone boxes."
Q. So three different IPhone boxes?
A. Correct.
Q. Det. Sayers, why was the fact that you found three IPhone boxes relevant in this investigation?
A. Well, in the Facebook, he had talked in that text about going—hitting for some IPhones.
Q. And ultimately, from speaking to Vivian—
Appellant did not timely assert extraneous-offense objections to the iPhone boxes or to Sayers's initial testimony regarding the Facebook message. See Lackey, 364 S.W.3d at 843. And to the extent appellant's objection to Sayers's subsequent Facebook-message testimony was properly preserved, that testimony was substantially the same as Sayers's previous testimony. Thus, any error in the admission of that testimony was harmless. See Leday, 983 S.W.2d at 717-18; Estrada, 313 S.W.3d at 302 n.29; Mayes, 816 S.W.2d at 88.
In requiring an objection every time the objectionable evidence is offered, we are in a minority of courts which do not follow the general rule that the repetition of an objection is needless when the court's ruling has indicated that an objection to such evidence will definitely be overruled. See Wigmore on Evidence § 18 (Peter Tillers rev.1983). Our rule which requires objection to every offer is sometimes called "the 'futility rule'; that is, despite ruling of judge that evidence is admissible, party must keep making futile objections on pain of waiver." 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure § 5039 n.11.1 (Supp. 1998) (citing Texas cases).Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998).
VII. Constitutionality of sentence
In his eighth issue, appellant asserts his statutorily mandated sentence of automatic life imprisonment without the possibility of parole is unconstitutional. As appellant acknowledges, his arguments have been addressed and rejected by this Court and others. See Harmelin v. Michigan, 501 U.S. 957, 961, 994-96 (1991) (upholding mandatory sentence of life imprisonment without parole); McCardle v. State, 550 S.W.3d 265, 275 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd); Lopez v. State, 493 S.W.3d 126, 139-40 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd); Straughter v. State, No. 05-10-00163-CR, 2011 WL 2028234, at *2-3 (Tex. App.—Dallas May 25, 2011, no pet.) (mem. op., not designated for publication). For those same reasons, we decide appellant's eighth issue against him.
VIII. Denial of motion for new trial
We review a trial court's denial of a motion for new trial under an abuse-of-discretion standard. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). A trial court abuses its discretion by denying a motion for new trial only when no reasonable view of the record could support the ruling. Id.
"A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." CRIM. PROC. art. 40.001. To obtain relief under this rule, the defendant must satisfy a four-prong test: (1) the newly discovered evidence was unknown or unavailable to the defendant at the time of trial; (2) the defendant's failure to discover or obtain the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App. 2017).
Additionally, a defendant must be granted a new trial if, among other reasons, "the verdict is contrary to the law or evidence." TEX. R. APP. P. 21.3. The trial court must rule on a motion for new trial within seventy-five days after imposing sentence in open court, though a motion not timely ruled on by written order will be deemed denied when that period expires. TEX. R. APP. P. 21.8.
Appellant's ninth and tenth issues challenge the trial court's rejection of his arguments asserted in his motion for new trial. Appellant asks that this Court "review the sealed record of the out-of-time supplemental motion for new trial (and exhibits) in its entirety" when considering these issues. We address these issues together.
In his ninth issue, appellant contends the State violated Brady when it "suppressed evidence of a gunshot residue test that would, at a minimum, have impeached the State's linchpin witness, Javan Bush." According to appellant, the "results and conclusions" of Bush's GSR analysis "exculpate" appellant because (1) "[t]hey place the gun in Bush's hands and render his testimony incredible and self-serving" and (2) "[n]one of the other witnesses could definitively place Appellant at the scene of the offense nor could they place a gun in Appellant's hands before, during, or after the offense." In his tenth issue, appellant argues "[t]o the extent that the evidence contained in the gunshot residue report could be characterized as newly-discovered evidence rather than Brady," he "amply" satisfied article 40.001's requirements "for the same reasons he submitted as evidence of a Brady violation."
Under Brady v. Maryland, 373 U.S. 83, 87 (1963), the State violates a defendant's right to due process if it withholds evidence favorable to the defense and material to the defendant's guilt or punishment. See Smith v. Cain, 565 U.S. 73, 75 (2012); Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). "Favorable evidence is any evidence that, if disclosed and used effectively, may make a difference between conviction and acquittal and includes both exculpatory and impeachment evidence." Harm, 183 S.W.3d at 408. "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. "Materiality is determined by examining the alleged error in the context of the entire record and overall strength of the State's case." Harm, 183 S.W.3d at 409.
Following the trial judge's recusal, appellant's motion for new trial was denied by operation of law without any hearing in the transferee court. See TEX. R. APP. P. 21.8. Although appellant asks that we consider the GSR report and other attachments to his supplemental new trial motion in this appeal, motions for new trial are not self-proving. See Frangias v. State, 413 S.W.3d 212, 220-22 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (concluding materials filed with motion for new trial and offered into evidence at hearing but not admitted into evidence because offer was never ruled on were not part of substantive evidence on appeal) (citing Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009)); see also Gallamore v. State, No. 05-14-01591-CR, 2016 WL 1622635, at *10 (Tex. App.—Dallas Apr. 20, 2016, pet. ref'd) (mem. op., not designated for publication). Because the record does not show the supplemental motion's attachments were admitted into evidence, we do not include them within our review.
According to appellant's allegations in his supplemental motion for new trial, the GSR report shows Bush had GSR particles on his hands when he was tested the day after the shooting. But the record also shows (1) the bullet entered Martha's chest from front to back, at a downward angle, and going from left to right; (2) Juan testified he saw appellant standing to Martha's left with a gun immediately before Martha was shot; (3) Vivian testified the gunshot came "from where [appellant] was standing"; and (4) there was no evidence Bush left the Infiniti during these events. The GSR report could have impeached Bush, but given the other strong inculpatory evidence it would not impeach, we see no "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." See Smith, 565 U.S. at 76 ("[E]vidence impeaching an eyewitness may not be material if the State's other evidence is strong enough to sustain confidence in the verdict."); Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002) ("The mere possibility that the undisclosed information might have helped the defense or affected the trial's outcome does not establish materiality."); see also Bagley, 473 U.S. at 682; Arizmendi, 519 S.W.3d at 149. On this record, we conclude the trial court did not abuse its discretion by concluding the materiality requirements of Brady and article 40.001 were not met. See McQuarrie, 380 S.W.3d at 150.
IX. State's cross-point
In a cross-point, the State asserts the judgment should be reformed to correctly reflect the offense of which appellant was convicted. The trial court's judgment incorrectly states appellant was convicted of "CAPITAL MURDER BY TERROR THREAT." We have the authority to correct the judgment of the court below to make the record speak the truth when we have the necessary information to do so. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd); see also TEX. R. APP. P. 43.2(b). We modify the judgment in this case to show appellant was convicted of the offense of capital murder "by robbery," rather than "by terror threat." See PENAL § 19.03(a)(2).
X. Conclusion
We decide against appellant on his ten issues and in favor of the State on its cross-point. We modify the trial court's judgment to show appellant was convicted of the offense of capital murder "by robbery," rather than "by terror threat," and affirm the judgment as modified.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 180458F.U05
JUDGMENT
On Appeal from the 203rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-76537-P.
Opinion delivered by Justice Carlyle. Justices Myers and Molberg participating.
Based on the Court's opinion of this date, we MODIFY the trial court's judgment to show appellant was convicted of the offense of capital murder "by robbery," rather than "by terror threat."
As MODIFIED, the judgment is AFFIRMED. Judgment entered this 19th day of June, 2019.