Opinion
NO. 01-17-00199-CR
03-27-2018
DESHAWN EUGENE MAYERS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court Harris County, Texas
Trial Court Case No. 1414967
MEMORANDUM OPINION
A jury found appellant guilty of aggravated robbery, and after finding the punishment-enhancement allegation to be "true," assessed his punishment at sixty years' confinement in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant argues that the trial court erred (1) by not allowing him to cross-examine Officer Garza to explore whether the officer was threatened by appellant, and (2) overruling his objection to the State's improper jury argument during the punishment phase of trial. We affirm the trial court's judgment.
Background
Two armed men forcibly entered the complainant's home. The first robber, later identified as appellant, shoved the complainant to the floor, pointed a handgun at the complainant, and demanded the complainant's money, wallet, and car keys. The two men then bound the complainant and locked him in a closet while they rummaged through the apartment. The complainant was able to free himself in time to run outside and watch appellant drive away in the complainant's car.
The complainant flagged down a patrol car and rode along with the officer as they followed appellant. Other officers, including Officer Garza, joined in the car chase which ended when appellant crashed the complainant's car. Appellant got out of the car and ran into a residential neighborhood. Officer Garza, who was pursuing appellant in his patrol car, saw appellant run up the driveway of a home and jump the fence into the backyard. Officer Garza got out of his car and walked over to the home. When Officer Garza rounded the corner of the house, he saw appellant raise his arm above his waist. Officer Garza heard a gunshot, assumed it came from appellant's gun, and returned fire. At that point, appellant climbed over the fence into a neighbor's backyard. After hearing the gunshots, the resident looked in her backyard and saw a man trying to hide under a tarp. Appellant was ultimately arrested at the scene with the help of a K-9 unit.
During appellant's counsel's opening statement, counsel argued that appellant had been shooting at a dog, not Officer Garza, when Officer Garza discharged his weapon. No witness, however, gave any testimony which established the presence of a dog at the scene prior to the arrival of the K-9 unit, which arrived well after the gun shots were fired.
Limits on Cross-Examination
In his first issue, appellant argues that the trial court erred by not allowing him to cross-examine Officer Garza to explore whether the officer was threatened by appellant.
On cross-examination, defense counsel asked Officer Garza questions suggesting that appellant might have been shooting at a dog instead of Officer Garza when Officer Garza fired his weapon at appellant.
Q: You have to have justifiable reason to discharge your firearm on duty, don't you?
A: Exactly.
* * *
Q: If somebody is shooting at a dog that is biting his leg and they're shooting down towards the dog, that wouldn't be a threat to you, would it?
A: It would be—the circumstances at that point, there would definitely be a threat. It's a robbery call, sir. And he has a gun.
Q: All right. It's a threat to your life to shoot down to the ground towards a dog?
[Prosecutor]: Objection to facts not in evidence.
The Court: Sustained.
Q: Would it be —if that is the facts, would it be a threat to your life 50, 60 feet away, and the gun is not pointed at you when it's being discharged?
[Prosecutor]: Objection, your Honor. Facts not in evidence.
The Court: Sustained.
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006). The trial court did not abuse its discretion if its decision was in the "zone of reasonable disagreement." Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)). "The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: 'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" Maryland v. Craig, 497 U.S. 836, 844, 110 S. Ct. 3157, 3162 (1990) (citing U.S. CONST. amend. VI). "The central purpose of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Id. at 845, 110 S. Ct. at 3163.
"[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Id. at 847, 110 S. Ct. 3164 (quoting Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295 (1985) (per curiam)).
"Generally, the right to present evidence and to cross-examine witnesses under the Confrontation Clause does not conflict with the corresponding rights under state evidentiary rules." Tollett v. State, 422 S.W.3d 886, 892-93 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). The Confrontation Clause does not confer on a defendant the right to impeach the general credibility of a witness through otherwise prohibited modes of cross-examination. Id. at 893. "[D]espite a defendant's constitutional right to cross-examine witnesses, the trial court retains wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other matters, harassment, prejudice, confusion of the issues, the witnesses' safety, or interrogation that is repetitive or only marginally relevant." Id. (citing Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010)).
The State argues that appellant has not preserved this issue for our review because the trial court sustained the State's objection to a question and there is nothing in the record that shows how the officer would have answered the question. See TEX. R. APP. P. 33.1(a). Failure to object to error under the Confrontation Clause waives the issue for appellate review. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (superseded on other grounds). In addition, to preserve for review the issue of whether appellant's cross-examination of a witness was unduly limited, appellant must show by bill of exceptions or otherwise what questions he wished to raise and the responses he expected. Easterling v. State, 710 S.W.2d 569, 578 (Tex. Crim. App. 1986). In this case, appellant made no offer of proof or bill of exceptions showing the testimony that he was attempting to elicit. Because appellant did not show the testimony that he was attempting to elicit, he has not preserved the issue for our review. See id.
We overrule appellant's first issue.
State's Comments during Closing
In his second issue, appellant argues that the trial court erred by overruling his objection to the State's improper jury argument during the punishment phase of trial.
During his punishment-phase argument to the jury, appellant's counsel minimized the severity of appellant's conduct and attributed appellant's crime to anger issues that developed when his sister died during childhood. Counsel concluded by quoting a Bible verse and stating that the jurors should be merciful when assessing appellant's punishment because God is merciful.
The State began its punishment-phase closing argument by attacking defense counsel's argument:
Don't think that [appellant] should get a discount on the aggravated robbery simply because he didn't hurt anybody or simply because he didn't hurt [the complainant] . . . . I want to talk to you a little about some of things that [defense counsel] said because I don't think that they are necessarily a smart or healthy way to look at the situation we find ourselves in.Defense counsel objected that that State was "attacking . . . the defendant over the shoulders of counsel. That's a personal opinion." The court overruled appellant's objection.
Proper jury argument consists of: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Comments that appear to cast aspersions on the character of defense counsel, and as a result, strike over counsel's shoulder at the defendant, are not proper jury argument. See Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). A prosecutor, however, does not cast aspersions on defense counsel's character by challenging the wisdom of appellant's argument. See Gonzalez v. State, 522 S.W.3d 48, 66-67 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see also Garcia v. State, 126 S.W.3d 921, 925 (Tex. Crim. App. 2004) (holding that prosecutor's comment that defense was "argu[ing] that hogwash that you've heard" was prosecutor's opinion of defense's arguments, not an attack on counsel's personal integrity). In this case, the prosecutor told the jury that he "didn't think that [appellant's counsel's closing arguments] are necessarily a smart or healthy way to look at the situation we find ourselves in." Because the prosecutor's comments were a reply to appellant's arguments, rather than his counsel personally, the argument did not strike over counsel's shoulders. See Gonzalez, 522 S.W.3d at 67. Therefore, the trial court did not abuse its discretion by denying appellant's objection.
We overrule appellant's second issue.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Bland, Lloyd, and Caughey. Do Not Publish. TEX. R. APP. P. 47.2(b).