Summary
In Sexton, the appellant was convicted of aggravated assault and at trial, an expert witness testified that cartridge cases from bullets found in the appellant's apartment matched fired cartridge cases found at the scene.
Summary of this case from Sweetser v. StateOpinion
No. 04-98-00598-CR
Delivered and Filed: August 6, 2003 Do not publish
Appeal From the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 98-CR-0072, Honorable Robert R. Barton, Judge Presiding.
The Honorable Robert R. Barton presided over the trial and signed the judgment in this case. However, the Honorable Susan D. Reed, then presiding judge in the 144th Judicial District Court, presided over the pretrial suppression hearing and ruled on the defendant's motion to suppress.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
REVERSED AND REMANDED
Daniel Rahim Sexton was convicted of three counts of aggravated assault with a deadly weapon and sentenced to three fifteen-year terms in prison. On appeal, he argued the trial court erred in admitting the testimony of Ronald Crumley (a firearm and toolmark expert with the Bexar County Forensic Science Center) that the nine millimeter shell casings found at the scene were loaded into the same magazine as the live cartridges found in Sexton's bedroom, because the State failed to prove Crumley's testimony was reliable. We disagreed and affirmed the trial court's judgment. Sexton v. State, 12 S.W.3d 517, 520 (Tex.App.-San Antonio 1999), rev'd, 93 S.W.3d 96 (Tex.Crim.App. 2002). The Texas Court of Criminal Appeals disagreed, reversed our judgment, and remanded the case to this court for a harm analysis under Texas Rule of Appellate Procedure 44.2(b). 93 S.W.3d at 101. We conclude the error in admitting Crumley's testimony was harmful and therefore reverse the trial court's judgment and remand the case for a new trial.
Scope and Standard of Review
Because the error of which Sexton complains is nonconstitutional, we must disregard it unless it affected his "substantial rights." Tex.R.App.P. 44.2(b). "[S]ubstantial rights are not affected by the erroneous admission of evidence `if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.'" Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). Stated another way, "[t]he accused's substantial rights are not affected unless there is a reasonable possibility that the errors are prejudicial; i.e., that they `might have contributed' to the defendant's conviction." Hinds v. State, 970 S.W.2d 33, 35 (Tex.App.-Dallas 1998, no pet.) (quoting United States v. Brown, 897 F.2d 162, 163 (5th Cir. 1990)). "In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). "The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments and even voir dire, if applicable." Id. The Texas Court of Criminal Appeals has "also recognized that whether the State emphasized the error can be a factor." Id. at 356. Also among the factors to be considered are whether the evidence was cumulative and whether it was elicited from an expert. See Solomon, 49 S.W.3d at 365.Discussion
Sexton argues the error in admitting Crumley's testimony was harmful because (1) Crumley testified his now discredited theory linking the cartridges found at the scene with those found in Sexton's bedroom was "one hundred percent accurate"; (2) the State repeatedly emphasized to the jury not only the reliability of the evidence but also its key importance; (3) no other physical evidence linking Sexton with the assault was ever recovered; and (4) no eyewitness testimony linked Sexton with the assault. In response, the State argues that there is other evidence sufficient to establish Sexton's guilt. This may be. But the fact that there is other evidence sufficient to establish guilt does not convince us that Crumley's testimony did not influence the jury or had but slight effect. Indeed, the State argued in its opening statement: Ronald Crumley, an expert forensic specialist, will testify and tell you that there is no doubt in his mind that the four shell casings found at the scene of the shooting . . . and the 24 nine millimeter live rounds found in this young man's bedroom were cycled through the exact same magazine. And that is how they got him, because without something else, without something else, even though they know he did it, they couldn't get him. So when they had that, then had the defendant. He was in possession of bullets that went through the same exact magazine as the bullets that shot those kids that night and that is what the evidence is going to show you. Similarly, the State argued in closing:You're left with this young man in possession of live shell casings of the exact same make, model, caliber as those found at the crime scene, you are left with live shell casings with the exact same tool markings on them as those found at the crime scene and you are looking at definitively, definitively, the bullets from the bedroom were cycled through the same magazine as the ones at the shooting. . . . And if that doesn't tend to connect somebody to a crime, I don't know what does. It does, and that is definitive.Because Crumley's testimony was unequivocal and because the State repeatedly emphasized its "definitive" nature, we cannot conclude the error in admitting the challenged testimony was harmless. We therefore reverse the trial court's judgment and remand the cause for a new trial.