Jackson v. State

Full title: Anthony Maurice JACKSON, Appellant v. The STATE of Texas, Appellee

Court: Court of Appeals of Texas, Fourth District, Houston

Date published: Feb 12, 2003

No. 04-02-00316-CR (Tex. App. Feb. 12, 2003)

Opinion

No. 04-02-00316-CR.

Delivered and Filed February 12, 2003. DO NOT PUBLISH.

From the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 1998-CR-0872. AFFIRMED.

Before Chief Justice LÓPEZ and Justices STONE and GREEN.

MEMORANDUM OPINION

Opinion By ALMA L. LÓPEZ, Chief Justice

Appellant Anthony Jackson was indicted for capital murder for the death of a child under the age of six. Jackson was found guilty by a jury and sentenced to life imprisonment. Jackson raises six issues on appeal in which he contends the trial court erred in admitting certain evidence which was irrelevant and more prejudicial than probative, refusing to admit evidence offered by him, refusing jury instructions and failing to grant a new trial based upon juror misconduct. We overrule Jackson's issues and affirm the judgment of the trial court.

Background

The State's main witness was the mother of the deceased, La Wanda Turner. Turner testified that she met Jackson when she was pregnant with La Monica Penn, "Monie," in 1995. She began a relationship with Jackson approximately a year later. Jackson moved in with Turner and Monie in the fall of 1997. On November 24, 1997, Turner left Monie in Jackson's care while she was at work. While at work she received a phone call from Jackson that he had "whipped" Monie because she had spit out a piece of food. Jackson called her a second time a couple of hours later to inform her that he was bathing Monie when she "slipped under water." He stated he tried CPR. Jackson informed Turner that he thought Monie was "faking." While speaking to Jackson, Turner heard her daughter talking in the background. Turner left work early and returned home. When she arrived at their apartment she found Monie in her clothes asleep on the bed. An argument ensued when Jackson insisted that Turner spank the child for "faking." Turner, wanting to avoid a fight, proceeded to the bathroom to run a bath for herself. Jackson continued to argue. As Turner was turning off the bathtub faucet, Jackson entered the bathroom with Monie on his hip. He stated to Turner "I'll fix you, b****." According to Turner, Jackson then slammed Monie into the wall. Monie's head struck the wall and left a hole. Turner immediately grabbed Monie, who appeared "dazed." The faucet broke as Turner was turning it off, causing water to rush out. Jackson ordered Turner to help him with the water. He also ordered her to tell the landlord about the faucet and explain that the hole in the wall was caused by him slipping and falling. Later, Jackson's mother arrived at the couple's apartment. At one point, she and Jackson left the apartment to purchase film at a local drugstore so as to take pictures of the flooding. Turner admitted she did not inform Jackson's mother about what had happened that evening. Turner checked on Monie and heard a gurgling sound before she went to bed. She testified that she didn't sleep because she checked Monie through the night. The next morning Jackson refused to let her check on Monie and ordered Turner to make him breakfast. She complied. After Jackson left for work, Turner went back to sleep because she had not slept through the night. Turner was pregnant at the time. She awoke an hour later and called the landlord as instructed by Jackson. Turner then checked on Monie and found her on the bed blue in color and nonresponsive. She called 911 informing them that Monie had slipped underwater. At the hospital, Turner was informed that Monie had bruises and a cracked skull. Monie did not recover from her injuries and died a few days later.

Extraneous Offense Evidence

Jackson raises multiple issues as part of his first issue on appeal. Initially, Jackson contends that the trial court erred in allowing the State to admit evidence regarding his alleged abusive relationship with Turner and an incident where Monie was hospitalized for soap in her eyes. Jackson specifically contends that this evidence was not relevant and, if relevant, was more prejudicial than probative. Tex. R. Evid. 401 403. Jackson also contends that the trial court erred in failing to provide the jury with a limiting instruction based upon the theory of extraneous offenses. The State contends that appellants have failed to preserve their first issue. We agree. The record reflects that when faced with the introduction of the State's evidence regarding Jackson's and Turner's relationship and Monie's prior hospitalization defense counsel stated the following:

[Defense Counsel]: Your Honor, at this time, we would object that under 402, that the evidence is not relevant; if it is relevant that its probative value is outweighed by its unfair prejudice.

The Court: 404?

[Defense Counsel]: 404, [y]our Honor. I think also under 403, [y]our Honor, we would also object under 608, Your Honor, specific instances of conduct are not admissible and also under, — if I may, Your Honor, the Fifth Amendment to the 14th Amendment of the United States Constitution and Article 1 Section 10 and 19 of the Texas Constitution.

In order to complain on appeal that the trial court erred in admitting this evidence, Jackson needed to make a timely and specific objection. Saldano v. State, 70 S.W.3d 873, 886-887 (Tex.Crim.App. 2002). Here, Jackson never explains to the court how the evidence is not relevant or more prejudicial than probative. See Burks v. State, 876 S.W.2d 877, 902-903 (Tex.Crim. App. 1994). Rather, Jackson merely provides a list of grounds. Consequently, his objections were non-specific and multifarious. Jackson failed to preserve this issue for our review. Nevertheless, in the interest of justice we will address appellant's specific point that the trial court erred in admitting such evidence. We review a trial court's decision to admit evidence by an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex Crim. App. 2000); Moss v. State, 75 S.W.3d 132, 141 (Tex.App.-San Antonio 2002, pet. ref'd). Generally, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the crime charged. Tex. R. Evid. 404(b). However, evidence of extraneous acts has relevance where it tends to establish intent, motive, or opportunity. Id.; Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App. 2000); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App. 1990). Here, the record does not reflect on what basis evidence was admitted. We uphold the trial judge's decision if it is correct under any theory of law applicable to the case. Hughes v. State, 24 S.W.3d 833, 840 n. 4 (Tex.Crim.App. 2000). Jackson was charged with intentionally and knowingly causing the death of Monie. The trial court could have concluded that the evidence regarding Monie's prior hospitalization (i.e. appellant's prior behavior towards Monie) was relevant because it made Jackson's criminal intent to harm her more likely than without such past conduct. See Stiles v. State, 927 S.W.2d 723, 732 (Tex.App.-Waco 1999, no pet.); Hernandez v. State, 914 S.W.2d 226, 233 (Tex.App.-Waco 1996, no pet.). Additionally, the trial court would not have abused its discretion to have concluded that the relationship evidence was relevant for the non-character conformity purpose of rebutting appellant's various defensive theories, including the defensive theory that Turner, not Jackson, was the culpable party. See Montgomery, 810 S.W.2d at 387-88. The trial court could have also concluded that Turner's alleged fear if she left the relationship was relevant because appellant had already opened the door to such evidence when defense counsel inquired as to why Turner initially misled police regarding seeking immediate medical help. She testified that she did so out of fear. We conclude that the evidence related to Jackson's relationship with Turner and Monie's prior hospitalization was relevant. We next review whether the evidence was more prejudicial than probative. Montgomery, 810 S.W.2d at 388. A trial judge must weigh the probativeness of the evidence to see if it is substantially outweighed by its potential for unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence. Id. In keeping with the presumption of admissibility of relevant evidence, there is a presumption that relevant evidence is more probative than prejudicial. Id. at 389. The court must also consider the State's need for the evidence in the presentation of the contested issues. Id. at 388. The State's need for evidence is measured according to three factors: 1) whether other evidence is available to establish the fact of consequence that the extraneous misconduct is relevant to show and, if so; 2) the strength of the other evidence; and 3) whether the fact of consequence is related to a contested issue. Id. at 390. We conclude the State had a compelling need for the evidence at issue. As noted above, evidence regarding Monie's prior hospitalization addressed Jackson's intent, and the evidence regarding Turner's fear of Jackson was used to rebut his defensive theory that he was not responsible for Monie's death. Jackson does not assert and the record does not reflect that this evidence was cumulative of other evidence, that it confused the issues for the jury, mislead the jury or caused undue delay. Accordingly, the trial court did not abuse its discretion in admitting the evidence.¹ As a secondary sub-issue, Jackson contends the trial court erred in failing to instruct the jury that the State had to prove the extraneous offenses beyond a reasonable doubt.² Jackson also contends the trial court erred in failing to provide a limiting instruction on the extraneous offense evidence both at the time the evidence was admitted and in the jury charge. A trial court is required to give the jury a reasonable doubt instruction regarding the consideration of extraneous offense evidence. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). Such an omission is one that does not require a timely request or objection at trial and may be raised for the first time on appeal.³ Id. at 483. However, failure to include such an instruction, is not automatic reversible error and requires that we conduct an analysis of whether appellant suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the argument of counsel and any other relevant information from the record. Id. We are to attempt to review the actual harm as opposed to just the theoretical harm to the accused. Bluitt v. State, 70 S.W.3d 901, 906 (Tex.App.-Fort Worth 2002, pet. granted). Appellant provides substantial authority for the proposition that he need not have objected or made a request for preserving this particular issue. However, Jackson fails to apprise us of the harm he suffered as a result of the court's failure to provide the reasonable doubt instruction other than to theoretically conclude that the extraneous offense evidence made him look like a "bully."⁴ s28 We agree that the trial court erred in failing to provide the instruction. However, we do not conclude appellant was harmed by the error. The jury was properly instructed as to the need to find Jackson guilty beyond a reasonable doubt on the offense of capital murder. In closing argument, the State mentioned Jackson's abuse and the soap incident. The State, however, did not focus on this evidence. Cf. Bluitt, 70 S.W.3d at 906. Additionally, we note that Jackson's life sentence is within the range of punishment for the offense of capital murder. After reviewing the record as whole, we do not conclude that appellant was denied a fair and impartial trial. We turn to Jackson's assertion that the trial court should have provided a limiting instruction. A defendant is entitled to an instruction limiting the jury's consideration of the extraneous offense evidence to the purpose or purposes for which it was admitted. Rankin v. State, 974 S.W.2d 707, 712 (Tex.Crim. App. 1996). Once a limiting instruction regarding extraneous offenses is requested, the trial court is required to give the requested instruction. See Ex Parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App. 2001). The request must be specific and timely. Wilson v. State, 7 S.W.3d 136, 143-44 (Tex.Crim.App. 1999). Where the trial court admits evidence for a limited purpose, then upon timely request, the court should instruct the jury that the evidence is limited to whatever purpose the proponent has persuaded the trial court to allow for its admission. See Tex. R. Evid. 105(a); Puente v. State, 888 S.W.2d 521, 528 (Tex.App.-San Antonio 1994, no pet.). A party must inform the trial court what limitation should be placed. See id. Here, at a hearing outside the presence of the jury, Jackson requested a limiting instruction to be given to the jury upon admission of the evidence by stating the following:

[Defense Counsel]: Can we get a limiting instruction as far as the extraneous acts to the jury?

The Court: You can do it at the time of the charge, if you want to then. Is that what you're referring to, something in the charge?

[Defense Counsel]: I would also [sic] that you also instruct the jury right now that these particular statements are being admitted for a limited purpose.

Jackson's request failed to inform the trial court as to what limitations should be placed upon the evidence. Accordingly, the requested instruction was not sufficiently specific and preserves nothing for review. Puente, 888 S.W.2d at 528. Moreover, an instruction at the time the evidence is introduced is not required when such evidence is offered to prove a main issue in the case such as motive or intent. Id. As noted above, the evidence at issue went to Jackson's motive and intent. Finally, once the evidence was admitted before the jury without a limiting instruction, it became admissible for all purposes and the trial court was not required to include such instruction in the jury charge. See Hammock v. State, 46 S.W.3d 889, 894-95 (Tex.Crim.App. 2001) (holding appellant's failure to properly request a limiting instruction at the time evidence was offered did not require trial court to provide a limiting instruction in jury charge). For the reasons stated above, we overrule appellant's first issue.

Admission of Evidence

In his second issue, Jackson contends that the trial court denied his right to present a defense in violation of the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, Section 9 and 10 of the Texas Constitution when it refused to admit evidence regarding Turner's conduct weeks after Monie died. Specifically, Jackson sought the admission of evidence that Turner was seen dancing at a night club a few days after Monie's funeral. Jackson contended that this evidence was relevant for the purpose of showing Turner's state of mind. To adequately preserve error and demonstrate harm, Jackson needed to make an offer of proof or bill of exception in order to demonstrate or make a showing of what evidence or testimony the trial court was excluding. See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim App. 1999); Chavez v. State, 6 S.W.3d 66, 69 (Tex.App.-San Antonio 1999, pet. ref'd). Jackson failed to preserve this contention for our review. The record reflects that Jackson requested the introduction of a witness who would testify as to Turner's outing. The trial court denied that request and gave Jackson the opportunity to make an offer of proof or bill of exception. Jackson did not do either. Accordingly, nothing is preserved for review and we overrule Jackson's second issue. In his third issue Jackson asserts that the trial court abused its discretion in admitting the State's evidence of the 911 emergency audiotape. Jackson specifically contends that the tape was used to "inflame the minds of the jurors as to the nature of the events that Ms. Turner went through" and that its admission "affect[ed] his substantial rights." We construe Jackson's complaint as one of relevance and conclude that the audiotape was relevant. Therefore, the trial court did not abuse its discretion admitting the audiotape. Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Questions of relevance should be left largely to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993). Where the trial court does not state the basis for its ruling, we uphold the trial judge's decision if it is correct under any theory of law applicable to the case. Hughes, 24 S.W.3d at 840 n. 4. Here, the audiotape begins with Turner's statement that Monie was with Jackson when she was injured in the tub. The rest of the tape reflects the operator's instructions to Turner on how to conduct CPR on Monie. We hold the evidence was relevant on various grounds. First, it tended to demonstrate where and when the victim suffered her injuries that led to her death. Second, the audiotape contained statements which placed Jackson in Monie's company within the time frame in which she sustained her injuries. Third, it reflects the effort on the part of Jackson to mislead law enforcement as to his actions and was inculpatory. We conclude that the trial court did not abuse its discretion in admitting the 911 audiotape. We overrule appellant's third issue.

Accomplice Witness

In his fourth issue, Jackson contends that the trial court erred in failing to provide the jury with an accomplice witness instruction. He maintains that the evidence establishes that Turner was an accomplice as a matter of law for the offense of capital murder or, at the very least, for the offense of criminal act of omission. We first determine whether Turner was an accomplice as a matter of law. A person is an accomplice if he participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser included offense. Blake v. State, 971 S.W.2d 451, 454-55 (Tex.Crim. App. 1998). Mere presence during the commission of the crime does not make one an accomplice, nor is one an accomplice for "knowing about a crime and failing to disclose it, or even concealing it." Id. at 454. Even where the witness was present during the commission of the crime and participated in concealing the crime, such evidence is insufficient to raise the issue of accomplice status. Jackson v. State, 933 S.W.2d 696, 698 (Tex.App.-San Antonio 1999, pet ref'd). A defendant is only entitled to an accomplice witness instruction if, and only if, there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice. Id. Jackson did not testify at trial. Accordingly, the jury only heard Turner's version of the events surrounding Monie's injuries. Turner testified that as she was turning off the bathtub faucet, Jackson entered the bathroom, took Monie, and slammed her against the wall. Simultaneously, the faucet broke causing water to pour out. Turner did not call for help because she was afraid and, instead, placed Monie in bed as ordered by Jackson. In the morning, Turner was ordered by Jackson to make him breakfast and was prevented from checking on Monie. When Jackson left for work, Turner took a nap for one hour. When she awoke she called the landlord as ordered by Jackson and informed him as to the flooding in the bathroom. It was only then that Turner checked on Monie. We conclude the evidence fails to demonstrate an affirmative act by Turner in the commission of the offense charged, namely, capital murder. See Kunkle v. State, 771 S.W.2d 435, 439-441 (Tex.Crim.App. 1986). Accordingly, Turner was not an accomplice as a matter of law for purposes of capital murder. In support of his argument that Turner could have been charged with a lesser included offense, Jackson focuses on the evidence that despite multiple chances to seek medical help for Monie, Turner failed to do so. He specifically points to the evidence that Turner failed do to anything when he and his mother left their home to purchase film for the camera to take pictures of the bathroom. Additionally, he points to Turner's act of taking a nap the next morning and calling the landlord before she checked on Monie. We reject this contention. Injury to a child can be a lesser included offense of capital murder. See Tex. Penal Code Ann. § 19.03(a)(8) (Vernon 1994); In re L.M., 993 S.W.2d 276, 283-84 (Tex.App.-Austin 1999, pet. denied). Capital murder does not require a special relationship or duty to the victim. Injury to a child by omission, however, requires the actor to have a legal or statutory duty to act or have care, custody, or control of the victim. See Tex. Penal Code Ann. § 22.04(b)(1) (Vernon Supp. 2003); Upchurch v. State, 23 S.W.3d 536, 538 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (noting lesser included offense must be included within the proof necessary to establish the offense charged). Therefore, because injury to a child by omission has different elemental requirements than capital murder, it is not a lesser included offense of capital murder. See generally Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). Accordingly, Turner was not an accomplice as a matter of law for purposes of a criminal act by omission. We overrule Jackson's fourth issue.

Lesser Included Offenses

In his fifth issue, Jackson contends that the trial court erred in refusing to provide a jury instruction on involuntary conduct and refusing to provide a jury instruction on lesser included offenses. The record reflects that Jackson specifically requested an instruction on "accident." Accident is not a defense under the Texas Penal Code; rather it is encompassed within the Texas Penal Code general culpability requirements. Garza v. State, 974 S.W.2d 251, 256 (Tex.App.-San Antonio 1998, pet. ref'd). Because "accident" is not a defense recognized under Texas law, the trial court did not err in failing to provide an instruction on it. Nevertheless, we address Jackson's contention that the trial court should have instructed the jury on whether he acted voluntarily. The Texas Penal Code provides that a person may commit an offense only if the person voluntarily engages in conduct. Tex. Penal Code Ann. § 6.01(a) (Vernon 1994). Therefore, if the issue is raised by the evidence, a jury may be instructed that a defendant should be acquitted if there is reasonable doubt as to whether he voluntarily engaged in the conduct of which he is accused. Brown v. State, 955 S.W.2d 276, 280 (Tex.Crim.App. 1997); Garza, 974 S.W.2d at 256. But conduct is not rendered involuntary merely because an accused does not intend the result of the conduct. See Adanandus v. State, 866 S.W.2d 210, 230 (Tex.Crim.App. 1993). Additionally, to be entitled to the charge there must be evidence of an independent event that could have precipitated the incident. See Brown, 955 S.W.2d at 280. As noted above, appellant did not testify at trial. Therefore, the only version of events in the record are based upon Turner's testimony. Notable in Turner's testimony is her statement that the faucet broke at the same time she was attempting to turn it off and at the same time Jackson entered the bathroom. There is no evidence that water was already on the floor or near Jackson at the time he entered the bathroom. Contrary to Jackson's contention, there is no evidence that the bathroom was flooded or even slippery at the time he entered the bathroom. As such, there is no evidence of an independent precipitating event. Accordingly, Jackson was not entitled to an instruction on involuntary conduct. Jackson also contends the trial court erred in failing to instruct the jury on lesser included offenses. At the jury charge conference, Jackson argued that the evidence raised several lesser included offenses including murder, manslaughter, criminal negligence, and injury to a child by omission. On appeal, while Jackson provides us with a litany of authority to support the proposition that jury instructions are required for lesser included offenses, Jackson fails to specify which of the lesser included offenses he requested should have been included by the trial court. Thus, we are placed in the position of having to speculate as to Jackson's complaint. This we will not do. See Tex. R. App. P. 38.1(h). An issue which is not properly presented to this Court presents nothing for purposes of review. McCarthy v. State, 65 S.W.3d 47, 49 n. 2 (Tex.Crim. App. 2001). We overrule appellant's fifth issue.

Motion for New Trial

In his sixth and final issue, Jackson contends the trial court abused its discretion in failing to grant a motion for new trial on the basis of jury bias. We review a trial court ruling denying a defendant's motion for new trial by an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001), cert. denied, 534 U.S. 855 (2001). Under this standard, we do not substitute our judgment for that of the trial court but simply determine whether the trial court's analysis was arbitrary and unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). The trial court is the sole judge of the credibility of any testifying jurors. Id. Where there is conflicting evidence on the issue of juror misconduct, the trial judge determines the issue and there is no abuse of discretion in overruling the motion for new trial. Id. Texas Rule of Appellate Procedure 21 provides the grounds for granting a new trial in criminal cases. Juror bias is not expressly listed as a reason for granting a motion for new trial. However, bias can constitute such misconduct that the accused has not received a fair and impartial trial. Quinn v. State, 958 S.W.2d 395, 402 (Tex.Crim.App. 1997). In order for a new trial to have been granted, Jackson needed to show that misconduct had occurred and that harm resulted. See Garza v. State, 630 S.W.2d 272, 274-75 (Tex.Crim.App. 1981) (assessing evidence to establish grounds for new trial and determining harm). The trial court heard the testimony of Sandra Lott, Jackson's aunt. She testified that she was present the last three days of trial. Around the second day she realized that one of the jurors looked familiar to her. That juror was Ida Robertson. According to Lott, she and Robertson were friends in college some twenty years before, but had a falling out. In that time, Lott would run into Robertson. Their conversations would start out friendly, but not end friendly. Lott testified that she ran into Robertson at a local restaurant before trial. She generally described their relationship as "out of sight, out of mind." Lott did not talk to Robertson while she was sitting as a juror on the case. The trial court also heard from Robertson. She testified that she noticed Lott for the first time during the trial, but was unaware of her relationship to anyone involved in the trial. In front of the other jurors, she mentioned she knew Lott to the bailiff. This was the only time she mentioned Lott during the jury deliberations. Robertson did not know Jackson at the time of jury selection. She also testified that her verdict was based upon the evidence. Officer Patrick Plate, bailiff for the trial court, testified that he recalled Robertson mentioning she knew someone who could have been a witness. He relayed that information to the trial court. We conclude the evidence does not establish juror misconduct occurred. Arguably, the evidence does not establish a "relationship" between the two women as characterized by Jackson. While the evidence is unclear as to whether Robertson was aware Lott was related to Jackson during jury deliberations, there is no evidence that Robertson was aware of the familial connection between Lott and Jackson during trial.⁵ Further, there is no evidence that if she had such knowledge it affected her deliberations and final determination at trial.⁶ Accordingly, based on the record, we cannot conclude the trial court abused its discretion in denying the motion. We overrule appellant's sixth issue.

Conclusion

For the reasons stated above, we affirm the judgment of the trial court.