Opinion
No. 10-17-00007-CR
05-23-2018
WARREN LEWIS, Appellant v. THE STATE OF TEXAS, Appellee
From the 278th District Court Walker County, Texas
Trial Court No. 27,257
MEMORANDUM OPINION
In five issues, appellant, Warren Lewis, challenges his murder conviction. See TEX. PENAL CODE ANN. § 19.02 (West 2011). Specifically, Lewis contends that: (1) there was not probable cause to arrest him the day following the murder for tampering with physical evidence; (2) his waiver of his constitutional rights was involuntary due to intoxication; (3) the trial court erred in admitting twenty-seven autopsy photographs; (4) the State intentionally withheld Brady material; and (5) the trial court erred in denying his request for a jury instruction under article 38.23 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005). Because we overrule all of Lewis's issues on appeal, we affirm the judgment of the trial court.
As this is a memorandum opinion and the parties are familiar with the facts, we only recite those necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4. And in light of our disposition, we dismiss all pending motions as moot.
I. PROBABLE CAUSE
In his first issue, Lewis argues that the trial court erred in finding there was probable cause to arrest him the day following the murder in question for tampering with physical evidence because the arresting officer, Texas Department of Public Safety Trooper Gabino Monjaras, testified that he saw Lewis throw something unknown to the Trooper on the ground. We disagree.
Here, Lewis requested a hearing pursuant to Harrell v. State. 884 S.W.2d 154 (Tex. Crim. App. 1994). Under Harrell, when deciding whether to admit extraneous-offense evidence during the guilt-innocence phase of trial, the trial court must make an initial determination that the jury could find beyond a reasonable doubt that the defendant committed the extraneous offense. Id. at 160. Counsel for Lewis emphasized several times during the Harrell hearing that a reasonable juror could not find beyond a reasonable doubt that Lewis committed the extraneous offense for which he was arrested—tampering with physical evidence. Ultimately, the trial court concluded "that there's enough evidence that a rational jury could find, beyond a reasonable doubt, that he was tampering and/or possessing a controlled substance." The trial court did not make any finding with regard to whether there was probable cause to support Lewis's arrest.
However, on appeal, Lewis makes a suppression argument—that the trial court erred in finding there was probable cause to support his arrest. See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) ("As we pointed out in Carmouche, the typical motion to suppress case alleging a lack of probable cause will be reviewed through a bifurcated standard of review . . . ."); Carroll v. State, 911 S.W.2d 210, 223 (Tex. App.—Austin 1995, no pet.) ("Suppression of evidence obtained pursuant to a valid search warrant based on probable cause should be ordered only on a case-by-case basis and only in those cases in which exclusion will further the purposes of the exclusionary rule of article 38.23(a)."). In other words, the complaints made by Lewis on appeal do not comport with those he made in the trial court.
None of the cases cited by Lewis involved a Harrell hearing.
To properly preserve error with regard to purported inadmissible extraneous-offense evidence, there must have been a timely request, objection, or motion stating the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint and secure a ruling. See TEX. R. APP. P. 33.1; see also Pearce v. State, No. 10-12-00353-CR, 2014 Tex. App. LEXIS 549, at *5 (Tex. App.—Waco Jan. 16, 2014, no pet.) (mem. op., not designated for publication). Additionally, to preserve error, the issue on appeal must comport, or in other words, must not differ, with the objection made at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). Because Lewis raises suppression issues on appeal that were not raised in the trial court, and because he did not obtain a ruling in the trial court on probable cause pertaining to his arrest, we cannot say that this issue was preserved. See TEX. R. APP. P. 33.1(a)(1)(A); Wilson, 71 S.W.3d at 349; Thomas, 723 S.W.2d at 700; see also Pearce, 2014 Tex. App. LEXIS 549, at *5.
However, even if we were to consider the Harrell hearing as some sort of quasi-suppression hearing, we cannot say that the trial court erred by implicitly denying Lewis's oral motion to suppress. Trooper Monjaras testified at the hearing that he personally witnessed Lewis driving recklessly and violating multiple traffic laws. Furthermore, what Lewis describes as an arrest was merely a continuation of the original investigative detention and a new investigative detention into additional offenses based on Trooper Monjaras's observations after the stop. See Haas v. State, 172 S.W.3d 42, 52-53 (Tex. App.—Waco 2005, pet. ref'd) ("Additional facts and information discovered by an officer during a lawful detention may form the basis for a reasonable suspicion that another offense has been or is being committed." (internal citations omitted)). In other words, giving "almost total deference" to the trial court's findings of historical fact that are supported by the record and to mixed questions of law and fact that turn on credibility and demeanor, we cannot say that the trial court erred by implicitly concluding that Trooper Monjaras had sufficient reasonable suspicion to stop and detain Lewis and then developed probable cause to arrest when he observed Lewis reach into his pocket and throw away a white substance that appeared to be pills. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1) (West Supp. 2017) (authorizing a peace officer to "arrest, without warrant[,] . . . persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony . . . or are about to commit some offense"); Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); see also Curry v. State, 228 S.W.3d 292, 295 (Tex. App.—Waco 2007, pet. ref'd) ("Probable cause exists when the facts and circumstances within the officer's knowledge and about which he has [reasonably] trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that a crime has been committed." (citing Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005)). We therefore overrule Lewis's first issue.
II. INTOXICATION AND THE WAIVER OF CONSTITUTIONAL RIGHTS
In his second issue, Lewis asserts that he was too intoxicated to waive his right to remain silent and his right to counsel prior to making statements against his interests during two interviews with law enforcement conducted after his arrest. As such, Lewis argues that his statements to law enforcement were involuntary.
Prior to the testimony of John Pugh, a detective with the Walker County Sheriff's Office, Lewis's counsel made the following objection:
So our objection, Ms. Stroud has informed us that they're planning to put on Pugh, and the confession will come in through their first witness, and rather than have the jury leave, our objection is based on yesterday we understand that there is case law on the fact that even sometimes an unlawful arrest can be clean, but you never know what appellate courts will do, and so our position is that when Monjaras arrested Mr. Lewis, our theory is it was an unlawful arrest, and that was what opened up this cornucopia of evidence, including this confession that we're going to hear, and so our objection is that Monjaras's unlawful arrest violated my client's constitutional rights, under the Sixth Amendment, and I think it's Article 1, Section 10 of the Texas Constitution, and I could be wrong on that, and everything from that unlawful arrest stems to him being interrogated on numerous occasions with the fruit of that unlawful arrest from that poison tree. Therefore, that's our objection, to everything that occurred after the arrest of Mr. Lewis by Trooper Monjaras.Later, during Detective Pugh's testimony regarding his Monday afternoon interview of Lewis in the Walker County jail, counsel made another objection:
Judge our only objection would be that now that we're talking about oral statements, I think 38[.]22 requires it to be recorded. If we are going to tell the jury what was said, that's the best evidence in this case. We've objected to it, but it can't come in this way, is our position.
Thereafter, Detective Pugh testified regarding his Tuesday and Wednesday morning interviews of Lewis. It was during the Wednesday morning interview that Lewis confessed to killing the victim in this case, Machelle Archie. However, at no point during trial did counsel argue that the statements Lewis made to law enforcement during the aforementioned interviews were involuntary due to intoxication.
We once again note that, to properly preserve error, counsel must have made a timely request, objection, or motion stating the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint and secure a ruling. See TEX. R. APP. P. 33.1; see also Pearce, 2014 Tex. App. LEXIS 549, at *5. Because counsel did not argue in the trial court that Lewis's confession was involuntary due to intoxication, and because his complaints on appeal do not comport with the objections made in the trial court, we cannot say that this issue was preserved. See TEX. R. APP. P. 33.1(a)(1)(A); Wilson, 71 S.W.3d at 349; Thomas, 723 S.W.2d at 700; see also Pearce, 2014 Tex. App. LEXIS 549, at *5. Accordingly, we overrule Lewis's second issue.
III. AUTOPSY PHOTOGRAPHS
In his third issue, Lewis complains that the trial court abused its discretion by admitting "twenty-plus" autopsy photographs, over defense objections, that were cumulative, irrelevant, and unfairly prejudicial. Lewis further argues that the admission of the photographs inflamed the jury and contributed to his conviction and lengthy punishment.
We review the trial court's ruling on the admissibility of a photograph under an abuse-of-discretion standard and will not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. See Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009).
Any evidence that is both material and probative is relevant. See TEX. R. EVID. 401; see also Oliver v. State, No. 10-12-00389-CR, 2014 Tex. App. LEXIS 2836, at *13 (Tex. App.—Waco Mar. 13, 2014, no pet.) (mem. op., not designated for publication). All relevant evidence is admissible unless otherwise excepted by the Constitution, statute, or other rules. TEX. R. EVID. 402. Evidence is relevant if it has any tendency to make more probable or less probable the existence of a consequential fact. Id. at R. 401; see Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). "If the trial court determines the evidence is irrelevant, the evidence is absolutely inadmissible and the trial court has no discretion to admit it." Webb v. State, 991 S.W.2d 408, 418 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Pritchett v. State, 874 S.W.2d 168, 173-74 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd)). "Questions of relevance should be left largely to the trial court and will not be reversed absent an abuse of discretion." Id. (citing Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993)).
Evidence, though relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. TEX. R. EVID. 403. Rule 403 carries a presumption that relevant evidence will be more probative than prejudicial and favors the admission of relevant evidence. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). When the evidence is a photograph, if the photograph has elements that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the helpful aspects are substantially outweighed by the emotional and prejudicial aspects. Erazo v. State, 144 S.W.3d 487, 491-92 (Tex. Crim. App. 2004).
Our analysis under Rule 403 includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). In determining whether the probative value of a photograph is substantially outweighed by the danger of unfair prejudice, relevant factors include "the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black-and-white, whether they are close-up, whether the body depicted is clothed or naked, the availability of other means of proof, and other circumstances unique to the individual case." Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Id. (citing Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997)).
Here, the State called Dr. Karen Ross, the medical examiner who conducted the autopsy on Archie, as the sponsoring witness for complained-of autopsy photographs that were admitted at trial. Outside the presence of the jury, Lewis objected to the photographs as being cumulative, irrelevant, and prejudicial under Texas Rules of Evidence 401 and 403. During questioning, Dr. Ross explained that the photographs depicted the injuries sustained by Archie during the attack, which, as the evidence showed, involved Lewis beating Archie to death with a piece of rebar. These photographs showed every mark, wound, fracture, and laceration on Archie's body. This information was probative of the time Archie was murdered, how quickly she expired, the extent of her injuries, and also indicated that, as a result of the attack, her limp body fell on top of a heating vent that caused burns on her body. Dr. Ross also testified that she carefully went through about 270 photographs taken during the autopsy to narrow them down to those which were introduced and admitted at trial. Dr. Ross emphasized that the photographs helped her explain to the jury the condition of Archie's body prior to and during the autopsy. And contrary to Lewis's argument on appeal, Dr. Ross did not agree that all of the photographs were substantially the "same." In fact, Dr. Ross noted the following: "Well we're showing the same injuries but at a higher power, which is what we do in an autopsy, because I like to have an orienting photo, like where it goes on the body, and then the closer view to actually show the injury better."
Based on our review of the record, we cannot say that the trial court abused its discretion in admitting the complained-of photographs. See Young, 283 S.W.3d at 874. First, we reiterate that autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy, which is not the case here. See Williams, 301 S.W.3d at 690; see also Santellan, 939 S.W.2d at 172. Additionally, the complained-of photographs have a tendency to make more probable the existence of consequential facts and, thus, are relevant in depicting the injuries sustained by Archie as a result of the attack and assisting Dr. Ross in explaining the autopsy. See TEX. R. EVID. 401; see also Moses, 105 S.W.3d at 626.
Furthermore, with regard to the aforementioned elements in a Rule 403 analysis, the photographs were probative in explaining the attack and the corresponding autopsy; the potential to impress the jury in some irrational yet indelible way was low considering the photographs merely depicted the injuries sustained by Archie during the beating and were not particularly gruesome, see Ripkowski v. State, 61 S.W.3d 378, 392 (Tex. Crim. App. 2001); the time needed to develop the evidence through Dr. Ross's testimony was low, as shown by the fact that the entirety of her testimony before the jury comprised approximately forty pages of the multi-volume Reporter's Record; and, as mentioned above, the State demonstrated a need for the photographs to explain the injuries sustained by Archie and Dr. Ross's autopsy results. See TEX. R. EVID. 403; Hernandez, 390 S.W.3d at 324; Shuffield, 189 S.W.3d at 787. Therefore, because we are not convinced that the jury rendered its guilty verdict on an improper basis based on the admission of the complained-of photographs, we cannot say that the photographs were unfairly prejudicial. See Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006) ("The rule's second key phrase, 'unfair prejudice,' refers to a tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one." (internal citations omitted)).
In Ripkowski v. State, the Court of Criminal Appeals rejected an unfair-prejudice claim regarding the admission of a videotape of the recovery of the victim's body. 61 S.W.3d 378, 392-93 (Tex. Crim. App. 2001). In arriving at this conclusion, the Ripkowski majority stated the following: "Although appellant also claims unfair prejudice, we find that the videotape simply reflects the gruesomeness of the crime—and that is not a sufficient reason for excluding the evidence." Id.
And finally, we cannot agree with Lewis that the photographs were needlessly cumulative, especially in light of Dr. Ross's testimony that she narrowed down the photographs; that the photographs were not substantially the "same"; and that many of the photographs were orienting photographs that were followed by close-up photographs depicting the exact injuries. See TEX. R. EVID. 403. Moreover, the Court of Criminal Appeals has stated that "[c]lose-up photographs and photographs taken from different vantage points add to the jury's understanding of the condition of the crime scene." Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995). Therefore, photographs, such as the ones at issue here, are not cumulative. See id.; see also TEX. R. EVID. 403. Accordingly, having rejected all of the bases for Lewis's objections to the autopsy photographs, we overrule his third issue.
IV. BRADY MATERIALS
In his fourth issue, Lewis contends that the State's intentional withholding of criminal charges against two potential witnesses in the case prejudiced his case because it prohibited him from fully exploring potential defensive issues. In making this argument, Lewis does not cite to the record or provide any relevant authority. Rather, he attached exhibits from other cases to his appellant's brief to support his contention. We remind counsel that, in our review of Lewis's issues, we are confined to the record before us and that the attachment of exhibits to a brief does not constitute formal inclusion in the record. See TEX. R. APP. P. 34.1 ("The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record."); Bencon Mgmt. & Gen. Constr., Inc. v. Boyer, Inc., 178 S.W.3d 198, 210 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ("The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal and, therefore, the documents cannot be considered."); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.) ("With limited exceptions not relevant here, an appellate court may not consider matters outside the appellate record."); see also State v. Starcher, No. 09-05-390-CR, 2006 Tex. App. LEXIS 3721, at *2 n.1 (Tex. App.—Beaumont May 3, 2006, pet. ref'd) (mem. op., not designated for publication). Accordingly, because Lewis does not cite to the record in this case or provide any relevant legal authority, we conclude that this issue is inadequately briefed. See TEX. R. APP. P. 38.1(i). We therefore overrule Lewis's fourth issue.
V. LEWIS'S REQUEST FOR AN ARTICLE 38.23 JURY INSTRUCTION
In his fifth issue, Lewis asserts that the trial court erred by failing to provide an Article 38.23 jury instruction as it related to his initial arrest for tampering with physical evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a). We disagree.
A claim of jury-charge error is reviewed using the procedure set out in Almanza. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The first step is to determine whether there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). "Then, if we find error, we analyze that error for harm." Id. (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)).
Article 38.23 of the Code of Criminal Procedure provides:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.TEX. CODE CRIM. PROC. ANN. art. 38.23(a). In Madden, the Court of Criminal Appeals stated that a defendant's right to the submission of jury instructions under Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). Specifically, the Madden court mentioned the following:
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
There are three requirements that a defendant must meet before he is entitled to the submission of a jury instruction under Article 38.23(a):
(1) The evidence heard by the jury must raise an issue of fact;
(2) The evidence on that fact must be affirmatively contested; and
(3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.
Id. at 510-11.
There must be a genuine dispute about a material fact. If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct.
An Article 38.23 instruction must be included in the jury charge only if there is a factual dispute about how the evidence was obtained. Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). "There is no issue for the jury when the question is one of law only." Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000) (citing Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996)). A defendant's disagreement with the trial court's legal conclusions regarding reasonable suspicion or probable cause does not equate to controverting facts. See Madden, 242 S.W.3d at 511 ("It is the trial judge who decides what quality and quantum of facts are necessary to establish 'reasonable suspicion.' Only if one or more of those necessary facts are disputed does the judge ask the jury to decide whether the officer's belief in those facts was reasonable."). "To raise a disputed fact warranting an Article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question. In this context, a cross-examiner's questions do not create a conflict in the evidence, although the witnesses's answers to those questions might." Id. at 513. Even the most vigorous cross-examination does not raise a disputed fact issue. Id. at 514.
During the charge conference, Lewis requested an Article 38.23 instruction on a purely legal matter—whether or not he was lawfully arrested by Trooper Monjaras for tampering with physical evidence. See Pierce, 32 S.W.3d at 251. Essentially, Lewis requested that the jury be charged with determining whether probable cause existed for the arrest. Such a determination is for the trial judge to make and is not proper for an Article 38.23 instruction. See id. at 511; see also Pierce, 32 S.W.3d at 251. As such, we cannot say that the trial court erred in denying Lewis's request for an Article 38.23 jury instruction. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a); Madden, 242 S.W.3d at 511; Garza, 126 S.W.3d at 85; Pierce, 32 S.W.3d at 251; see also Barrios, 283 S.W.3d at 350; Ngo, 175 S.W.3d at 743; Almanza, 686 S.W.2d at 171. We overrule Lewis's fifth issue.
VI. CONCLUSION
Having overruled all of Lewis's issues on appeal, we affirm the judgment of the trial court.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed May 23, 2018
Do not publish
[CR25]